' Allowed.
2. Exemption granted for the time being.
3. On 22-11-2002 at about 8-55 p.m. Four activists of MQM namely Abdul Sattar, Shahid, Fahad and Shariq received multiple fire-arm injury in the result of an armed assault when they were available outside the office of MQM Unit No,70. All the four were immediately shifted to Jinnah Hospital. At 10- 40 p.m. On the same day MPA Talib Imam lodged F.I.R. With Korangi police stating therein that he received information on telephone at about 9-00 p.m. That six workers of MQM(H) came duly armed, on two motorcycles and opened fires at injured activists and disappeared. He also stated that Ashfaq, Qaiser, Arif and Rizwan had witnessed the incident who identified the accused as Shahzad Behari, Irfan Chitta, Suhail of 74 Unit, Javed Mulla, Amin alias Tesha and Gulfam of 74 Unit.
' After investigation the challan was submitted for offence under section 324/34, P.P.C. Against all the six persons nominated in the F.I.R. Applicant Gui Muhammad, Muhammad Suhail and Shahzad approached the trial Court for bail, which was declined, to them. After that present application has been filed.
' Applicant's learned Advocate contended that his clients have been implicated falsely for being the members of MQM(H). According to him, after the incident MPA Talib Imam lodged the F.I.R.
Nominating the culprits falsely. He, however, prevailed upon the witnesses named in the F.I.R. After persuasion for so many days and got their statements recorded as witnesses. In fact, their statements were recorded more than 15 days after the incident. He further contended that the natural witnesses of the incident were the injured persons who did not implicate any of the applicants/accused in their statements under section 161, Cr.P.C. They even did not claim to have seen the culprits. On the contrary they stated that in the result of a sudden firing they received injuries and fell down and went unconscious. According to the learned Advocate the injured P.Ws.
Even did not claim the four persons named as eye-witnesses to be available there at the Time of incident. Therefore, in the circumstances when the injured witnesses have not confirmed the presence of the eyewitnesses and also their statements recorded by police more than 15 days after the incident, the applicants deserve the concession of bail.
' The learned State counsel has opposed the bail plea saying that present is the very serious incident of armed assault on four persons with the intention to take their lives and four eye- witnesses have implicated the applicants, therefore, they do not have a case for bail.
' Present is the case where four persons were subjected to indiscriminate firing in the result whereof each of them sustained multiple wounds and had gone unconscious. No doubt none of them claim to have seen or identified the assailants but as many as four other witnesses claim to have witnessed the incident and identified the culprits. All of them have implicated the applicants alleging to be assailants having come on two motorcycles and opened fires at the injured P.Ws.
Names of all the four P.Ws. Figure in the F.I.R. Lodged soon after the incident. In presence of the ocular evidence the applicants do not have a case for bail. Application dismissed.
Bail refused.
2005 Y L,R 1267 [Peshawar] Before Muhammad Raza Khan, J IHSANUALLA.H---Petitioner versus THE STATE and another---Respondents Criminal Miscellaneous Bail Petition No,399 of 2004, decided on 14th February, 2005.
Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, refusal of---Role attributed to accused was same as was attributed to his father/co-accused who earlier was granted bail and thereafter was acquitted after facing full trial---On principle of consistency accused, though deserved to be released on bail, but he had absconded and remained absconder for more than three years and he surrendered five months after acquittal of his father which would mean that accused had waited for completion of the trial and process of appeal against acquittal--- Abscondence of accused was not by chance, but was intentional and such attitude of accused would deprive him of a concession to which he could normally be entitled---No presumption- could be raised that accused was unaware of registration of case against him particularly when his father was charged who was arrested and faced trial--- Prima facie reported presence of accused on scene of occurrence armed and his firing with weapon coupled with his long abscondence, was sufficient to deprive him of concession of bail irrespective of fact of any variation in the statements and non recoveries of empties, etc.---Bail petition was dismissed in circumstances.
[pp. 1268, 12691 A, B, C & D 1999 PCr.LJ 616 ref. Saleem-ul-Haq Khan Ranazai for Petitioner.
Muhammad Sharif Chaudhry, D.A.-G. For the. State.
Mirza Ali Khan for the Complainant.
Date of hearing: 14th February, 2005.
' The present petitioner has requested for his post-arrest bail who has been charged and arrested in a murder case vide F.I.R. No,I83, dated 9-8-2001 Police Station Pezu. The complainant had charged four persons, including the present petitioner, for effective firing. The major role of fatal fire was attributed to one Gulbaz whereas the other three accused (including the petitioner) were charged for ineffective firing. Out of the said three accused Noroz Khan was earlier released on bail and he faced trail, at the end of which, he was acquitted. He was the father of the present petitioner. After his acquittal the present petitioner surrendered on 21-11-2004. He requested for bail and on being unsuccessful from the Courts below, this petition has been moved.
2. Learned counsel for the petitioner argued that the role attributed to the present petitioner was the same as the role attributed to his father Noroz and since he has been acquitted after facing full trial and he was earlier granted bail for being charged for the role of ineffective firing therefore, on the principle of consistency, the present petitioner also deserves to be released on bail. It was also argued that no empty has been recovered from the scene of occurrence and four persons have been charged for firing whereas only one injury has been caused and therefore, he requested for the release of the petitioner on bail, despite the fact that he absconded for a considerable long time, but the learned counsel referred to several precedents indicating that abscondence per se is not sufficient to refuse bail.
3. Learned counsel for the respondents urged that the present petitioner was directly charged for common intention to commit the murder of the deceased and to attempt on the life of the complainant and the eye-witness and that prima facie case is established against the petitioner because as per judgment of the learned Sessions Judge while acquitting accused Noroz, he held that prima-facie case against the other accused is established. The learned counsel referred to 1999 PCr.LJ 616 Peshawar wherein it has been held that abscondence itself is sufficient to refuse the bail because if the abscondence is not explained and it was intentional whereby the accused was waiting for the result of the earlier trail, the release of such type of offenders may encourage piecemeal trial of the cases resulting in acquittals.
4. While the arguments on behalf of the petitioner are weighty because in an identical position, the trial of accused Noroz has not been proved successful and the same evidence shall be repeated for the present accused. Moreover, the said Noroz was also granted bail on the same available record. However, the attitude of the present petitioner for delayed surrender to the process of law needs to be considered in detail. It cannot be presumed that the present petitioner was unaware of the registration of a case against him particularly when his father was charged who was arrested and he had faced trial and two other accused were still fugitive including one Gulbaz Khan who is charged for the effective firing. Unfortunately such practice has encouraged increase of crimes in the society on the one hand and the decrease of credibility in the system of administration of justice on the other. The complainants are also responsible because after the occurrence of an incident of murder etc., the complainant party tries to enrope as many persons of their rival group as may be possible and in certain cases assigning various types of roles to different persons. In view of the geographical location of the area, the accused charged for major roles slip away to the tribal belt and those who are assigned minor roles normally appear and face trial. They are acquitted of the charges. Thereafter, the accused with comparatively serious charge surrender and face trial who are also acquitted and fmally the main accused appears and faces trial. During this process, the same prosecution witnesses are made to appear several times and subjected to cross-examination. Practically in the subsequent trials, they are also confronted with their statements recorded in the earlier trials and therefore, with each trial, further dents are made in the case of the prosecution. During this process, the witnesses become disinterested and disgusted and believing the negative outcome of the entire process, they do not support the prosecution case in the same vigour as they intended in the first instance. Thus, through the misuse of the process of law, almost all the the are acquitted and the family of the victim is justified to be offended and thus, the confidence of the public in the administration of justice is shaken. This trend has to be discouraged. The present petitioner has absconded for more than three years and he has surrendered five months after the acquittal of his father who faced trial in the first round. That means that the petitioner had waited for the completion of the trial and the process of appeal against acquittal. Such abscondence is not an abscondence by chance. It is an intentional one and therefore, such attitude deprives a person of a concession to which he may normally be entitled.
5. The argument that four persons have been charged for one fatal shot and therefore, the role of some of them may be minor to the role of others, is not convincing in the sense that if four persons armed with deadly weapons arrive at the scene of occurrence and some of them fired effectively on the victims whereas the shots of others are either missing or they did not fire at all but their presence at the scene of occurrence as the assailants fully armed with deadly weapons proves their common intention with the one whose shot was fatal. Therefore, prima facie the petitioner's reported presence on the scene of occurrence armed and firing, with weapon coupled with his long abscondence is sufficient to deprive him of the concession of bail irrespective of the fact of any variations in the statements and non-recovery of the empties etc.
6. Consequently, the petition fails which is hereby dismissed.