' 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. #EndJudgment