Pursuant to an information received on 13.9.2002 at about 1045 hours, that firing is going on in deh `Qamar Mela', District Nowshera, near the under-constructed house of one Akhtar Zaman, deceased a police party headed by S.I. Gulzar Khan rushed to the spot where complainant Ghani Zaman, brother of the deceased, made a report to the effect that on that day i,e, 13.9.2002 at morning time, Zargulab, Taj Wali, Sarfaraz, Hazrat Sher, Zarwali, Khan Wali and Asghar Khan all residents of `Chandan Garhi' Police Station Matani, duly armed with deadly weapons were present near the house of the deceased when in the meanwhile firing started. With the firing of the above named persons, Akhtar Zaman was hit and died there and then. After accomplishing the mission the culprits bloted away from the spot. The complainant stated that subsequently it transpired that Akhtar Zaman was done to death at the instigation of Abdur Rehman. Mst. Khatam Bibi and Mst.
Yasmeen inmates of the house, were claimed to have seen the occurrence. Existence of previous enmity between the two families was stated to be the motive. Resultantly, a case was registered against the above named accused persons under Section 302/148/149/109 PPC Police Station Nizampur vide F.I.R. No, 150 dated 13.9.2002.
2. Following the investigation all the petitioners were arrested by the police on 18.2.2003. They moved applications for grant of bail before learned Judicial Magistrate and learned Additional Sessions Judge, Nowshera, which were declined vide orders dated 3.3.2003 and 21.3.2003 respectively. Having failed to obtain the relief of bail, the petitioners have approached this Court with the similar prayer.
3. Mr. Asadullah Chamkani, learned counsel for the petitioners in his arguments has highlighted following points for consideration. He submitted that accused petitioners are innocent and have been arrested on suspicion; that there is no ocular or circumstantial evidence available on the record to connect them with the guilt; that there are contradictions in the site-plan, post-mortem report and statements recorded under Section 161, Cr.P.C. that one of the accused namely Zargulab, on the eventful day, was admitted in Lady Reading Hospital, Peshawar and he is entitled for bail on the basis of plea of alibi; that the deceased was involved in a number of murder cases and he was declared a proclaimed offender and possibility of the deceased having been done to death by his enemies, cannot be excluded in the circumstances of the case and that the ocular account of incident supplied by the alleged eye witnesses stands belied by host of circumstances and they have not accounted for their presence at the spot at the time of incident.
4. Mr. Waheedullah, Advocate learned counsel for the State, on the contrary, opposed the bail application and contended that in view of the direct charge supported by eye witnesses, medical evidence, recoveries from the spot, motive and noticeable abscondence, sufficiently provide reasonable grounds to believe that accused-petitioners are guilty of offences charged with which fall within the prohibitory clause of Section 497 Cr.P.C. Mr. Khawaja Muhammad Khan, Advocate, learned counsel for the complainant adopted the arguments of learned State counsel and maintained that accused-petitioners are not entitled for grant of bail as prosecution is in possession of sufficient evidence to implicate them with the crime. He placed reliance on Muhammad Shafique Petitioner us. Muhammad Hanif and another respondents (1970 SCM R 143).
5. Before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in sub-sections (1) and (2) of Section 497, Cr.P.C. in its totality and the sine qua non for releasing an accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non-bailable offence as provided in sub-sections (1) and (2) of Section 497, Cr.P.C. or to prevent the abuse of the process of Court or to do justice, keeping in view the particular facts of each case. The bail in the case of commission of a non-bailable offence and particularly falling in the prohibitory clause in sub- section (1) of Section 497, Cr.P.C. is not to be granted as a matter of course, with the simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of Section 497, Cr.P.C.
6. It is settled principle of law that at bail granting stage the material available on record is to be sifted through in order to establish whether prima facie the petitioner before the Court can be connected with the crime in question, and hence no detailed inquiry is to be made by the Court.
7. Having heard the arguments and submissions of learned counsel from both sides with reference to the case law cited at the bar, I have not been persuaded to allow bail to accused-petitioners on the alleged ground of conflict in the ocular account with the medical evidence. After receiving evidence it is for the trial Court to give weight to the prosecution evidence in its own wisdom. At bail stage, evidence of the parties could not be assessed/tested in depth. The purpose is to avoid expression of opinion one way or the other on merits of the case. In the instant case, I find that accused-petitioners have been mentioned in the P.I.R. for commission of offence. They are charged for firing culminating into the murder of Akhtar Zaman deceased. These allegations are surely sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of Section 497, Cr.P.C. for admission of accused-petitioners on bail.
8. The accused-petitioners disappeared from the village after the occurrence and they were arrested on 18.2.2003. It is a settled law that fugitive from law loses some of the normal rights granted by the procedural and substantive law and noticeable abscondence disentitles the absconder to the concession of bail notwithstanding the merits of the case.
9. One of the accused-petitioners namely Zargulab seeks bail on plea of alibi. This plea is still to stand the test of scrutiny on the basis of evidence and cannot at all be gone into for the purpose of grant or refusal of bail.
10. It is settled that normally High Court does not interfere with the exercise of discretion in the matter of bail but when interference is inevitable, it is under duty to do so in order to secure the ends of justice and to do complete and substantial justice to the parties. In the instant case, I find that the orders passed by the Courts below refusing bail to accused-petitioners, are neither illegal nor perverse warranting interference of this Court. The bail has been declined to accused- petitioners for valid and cogent reasons. The accused-petitioners have not- been able to successfully demonstrate the existence of circumstances justifying grant of bail. The mere fact the deceased was involved in a number of murder cases and he was declared a proclaimed offender, does not permit any one to take law into his hand and eliminate him from the surface of world.
11.In view of the above discussion, the application of accused-petitioners fails which is hereby dismissed and bail is refused.
12.Before parting with this order it may be observed that nothing which has been discussed herein above would affect the merits of the case and the learned trial Judge shall decide the case with open mind.