' Zarif Khan petitioner having failed to secure bail from the forums below in a case under section 302/34, P.P.C. Registered at Police Station City D.I. Khan against the petitioner and 'co-accused Nazir through F.I.R. No,378 dated 10-9-1990 has moved instant application with the similar prayer.
2. The precise allegation against the petitioner is that he won 10-9-1990 at11-45 hours in Commissionary Bazar, D.I. Khan caught hold of deceased Musa Khan and facilitated his murder at the hands of Nazir, who gave dagger (critch) blows to the deceased.
3. Appearing on behalf of the petitioner Mr. Sanaullah Khan Gandapur, Advocate contended that petitioner is charged for catching hold of the deceased and no overt act has been committed by him; that what was the intention of the petitioner is yet to be determined at trial and that mere abscondence does not stand in the way of the petitioner for grant of bail. To support the contentions, he placed reliance on 1995 SCM R 310, 1994 SCM R 393 and 1978 SCM R 357.
4. Contrarily, Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-Genera for the State assisted by Mr. Muhammad Karim Anjum Qasuria, Advocate for the complainant, opposed the bail application maintaining that petitioner caught hold of deceased and thereafter the deceased sustained blows at the hands of co-accused Nazir, therefore, he was actively participated in the commission, of crime and unexplained noticeable abscondence of the petitioner disentitles him for the grant of bail notwithstanding merits of the case. To augment the contentions, reliance was placed on Rehmatullah v. The State and another 1999 PCr.LJ 579 (Peshawar) and Naseer Ahmad v.
The State PLD 1997 SC 347.
5. The appreciation of evidence and the drawing of conclusions therefrom in relation to all the circumstances is the function exclusively of the trial Court. It cannot be anticipated by a superior Court dealing with an ancillary matter i,e, the grant of bail pending trial.
6. Needless to emphasise that at the time of hearing of bail application, Court is supposed to do tentative assessm ent of the material available on the record, which is different from final appreciation and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses.
7. No doubt, the petitioner is not charged to have caused any injury to the deceased but according to the allegations recorded in the F.I.R. He caught hold of the deceased while his co-accused Nazir caused fatal blow culminating in the death of the deceased. Thus, according to the prosecution version, he facilitated the commission of murder. The petitioner and his co-accused had come together to the venue of occurrence which demonstrates that the petitioner had a common intention to take the life of the deceased. The crime in question having taken place on 10-9-1990, the petitioner was arrested on 13-7-2004. Petitioner's unexplained noticeable abscondence, therefore, disentitles him to the relief of bail notwithstanding merits of the case. If an authority is needed on the point, reference can be made to PLD 1992 Pesh.
74.
8. It will be after recording of evidence in the case that one will be able to say, with certainty, whether or not the petitioner is to blame for taking the life of Musa Khan Deceased, but as the matter stands at present, I see no reasonable ground to believe that he had no concern in the matter. Resultantly, the application being without merits is hereby dismissed. Bail refused.