' Having been involved in a case registered vide F.I.R. No,286,- dated 1-7-2003 under sections 302/148/149, P.P.C. At Police Station Mattani District Peshawar, the accused-petitioner applied for his release on bail in the Court of learned Judicial Magistrate, Peshawar but his application was dismissed vide order, dated 27-7-2004. Thereafter, he moved the Court of learned Sessions Judge, Peshawar for bail which was entrusted to the learned Additional Sessions Judge-XV, Peshawar who dismissed the same vide order, dated 23-8-2004. Now the accused-petitioner has moved this Court for his release on bail.
2. Mst. Malika complainant/widow of the deceased lodged the report at Police Station Mattani wherein she stated that on 30-6-2003 at Sham Wela she along with the deceased husband was coming from Hassan Khel to their village Aza Khel and when reached near the fields of Aza Khel Mosque Shaheed Baba Ziarat, the accused-petitioner and his co-accused who were already present duly armed, started firing with the intention to commit their Qatl-i-Amd. On the result of firing, her deceased husband was hit and died on the spot. She charged the accused-petitioner along with his co-accused for the commission of offence.
3. Mr. Assadullah Khan Chamkani and S. Naz Muhammadzai, the learned counsel representing the accused-petitioner, argued that there was abnormal delay of twelve hours in lodging the F.I.R. The occurrence took place at Sham Wela on 30-6-2003 whereas the report was lodged on 1-7-2003 at 9-00 a.m. The police station was at a distance of hardly 15/16 kilometers away from the place of occurrence, as is clear from the inquest report prepared by the Investigating Officer.
4. It was also argued that no specific role has been attributed to the accused-petitioner in the commission of offence.
5. It was also argued that the occurrence was un-witnessed which took place at the dark hours of the night and there was no source of light through which the accused-petitioner could be identified.
6. It was further argued that the abscondence alone cannot be hurdle in grant of bail if the accused-petitioner was otherwise entitled to the concession of bail. Reliance in this regard was placed on The State v. Malik Mukhtiar Ahmad Awan 1991 SCM R 322 and Abdur Rauf v. The State PLD 1996 Kar.
372.
7. On the other hand, Messrs Obaidullah Anwar, Additional Advocate-General for the State and Iftikharuddin Yusufzai, the learned counsel representing the complainant, argued that there was no abnormal delay in lodging the F.I.R. The occurrence took place at the time when no conveyance was available and the complainant has fully explained the delay, if any, in the F.I.R.
8. With regard to the source of light, it was argued that the occurrence took place at Sham Wela and there was sufficient light through which the accused-petitioner who had blood feud enmity with the deceased party, could be easily identified.
9. It was also argued that not only the post-mortem report of the deceased shows that he had received five entry wounds, three exit and two gutter wounds supporting the case of prosecution but the incriminating material collected by the Investigating Officer in the shape of blood-stained earth and nine empties of G-3 also supports the case of prosecution.
10. It was further argued that the occurrence took place on 30-6-2003 and the report was made on 1-7-2003 whereas the accused-petitioner was arrested on 20-7-2004 i,e, he remained absconder for full one year and there is no explanation available on record about his abscondence. Reliance in this regard was placed on Sher Ali alias Sheri v. The State 1998 SCM R 190.
11. I have heard Messrs Assadullah Khan Chamkani, Advocate, assisted by S. Naz Muhammadzai Advocate, the learned counsel representing the accused-petitioner, Obaidullah Anwar, the learned Additional Advocate-General for the State, Iftikharuddin Yusufzai, the learned counsel representing the complainant and perused the record.
12. I am not inclined to release the accused-petitioner on bail, firstly, because he along with his co- accused stands charged in the F.I.R forD murdering Khitab deceased; secondly, there is sufficient incriminating material available on record in the shape of blood-stained earth and recovery of 9 empties of G-3 bore from the spot by the Investigating Officer, therefore, there is a strong prima facie case connecting the accused-petitioner with the commission of offence; thirdly, the postmortem report of the deceased shows that he had received five entry, two gutter and three exit wounds on his body, therefore, the 'report fully supports the case of prosecution, fourthly, the occurrence in this case took place on 1-7-2003 whereas the accused-petitioner was arrested on 20-7-2004 i,e, he remained fugitive from law during this period and there is no explanation available on record about his noticeable abscondence. It is by now settled that fugitive from law and Courts loses some of his normal rights granted by the procedural as well as substantive law and unexplained noticeable abscondence of the accused disentitles him to the concession of bail notwithstanding the merits of the case. Wisdom in this regard has been drawn from Sher Ali alias Sheri v. The State 1998 SCM R 190 and Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and, fifthly, the occurrence took place at. Sham Wela in the month of July, 2003 and there was sufficient light through which the accused- petitioner along with his co-accused could be identified and the delay in lodging the report has been properly explained in the F.I.R. By the complainant.
13. Reasonable grounds exist to believe that the accused-petitioner has been guilty of an offence punishable with death or imprisonment for life, therefore, the application in hand is dismissed.