-UDGMENT ' MUHAMMAD ALAM KHAN, J.---Through this bail cancellation application filed under section 497(5), Cr.P.C., the complainant/petitioner No,1 Nowshad Khan son of Mir Aslam Khan together with Mst.
Farkhanda, widow of the deceased Shadab Aslam Khan, seek the cancellation of to Irshad Khan son of Shaista Khan in case F.I.R. No,458 dated 15-12-1994 under sections 302/429/ 109/34, P.P.C. Of Police Station Lakki Marwat by the learned Sessions Judge Lakki Marwat vide order dated 29-1- 2009.
2. According to the first information report lodged by Noshad Khan on 15-12-1994, 'on the eventual day at 1420 hours he along with his brother Shadab Aslam Khan were on their way towards their house situated in Lakki Mina Khel. Shadab Aslam Khan was going ahead of him and after covering some distance, Irshad Khan son of Shaista Khan, Mushtaq Khan son of Ghulam Qadir Khan duly armed with Kalashnikovs, residents of Lakki Mina Khel, and Saif-ur-Rehman alias Faqir son of unknown resident of Aba Khel armed with a D.B. Shotgun opened firing at Shadab Aslam Khan with which he was hit and fell, to the ground, whereafter all the three three accused ran from the spot.
When reached near the brother Shadab Aslam Khan, he took his last breath and succumbed to the injuries. Motive for the offence was stated to be that the accused Irshad Khan was constructing house for his brother-in-law Mushtaq Khan in front of the house of Shadab Aslam Khan over which the said day at morning an altercation had taken place between the accused Irshad Khan and the deceased Shadab Aslam Khan. He thus charged the three accused for committing the murder of his brother Shadab Aslam Khan vide F.I.R. Ibid.
3. Learned counsel for the complainant/ petitioners vociferously resisted the grant of bail to the accused/ respondent on the grounds that he is directly charged for effectively firing and killing the deceased in a. Broad day light, the report whereof was lodged with all reasonable promptitude, the medical evidence of the deceased supports the charge, the accused/respondent had remained in abscondance for a very long noticeable and unexplained period of about fourteen years and that acquittal of his co-accused has wrongly been made basis for enlarging the accused/respondent on bail.
4. In rebuttal, learned counsel for the accused/respondent and State defended the impugned order on the grounds that the case of the accused/respondent was at par with his co-accused Mushtaq who has since been acquitted during trial and thus since the investigation in the case is complete and he is no more needed for the purpose of investigation, he was rightly released on bail through the impugned order which is neither arbitrary, nor fanciful so as to warrant interference by this Court. Reliance in this respect was placed on the cases of Suba Khan v.
Muhammad Ajmal and 2 others 2006 SCMR 66; Aamer Shahzad v. Muhammad Asim and another 2006 SCMR 558, Inamullah v. State and 2 others 2008 MLD 1492; Muhammad Jan v. Sanobar and 2 others 2008 PCr.LJ 1219; Ghulam Qasim v. Inayatullah alias Tulla and another 2008 MLD 1484; Muhammad Nawaz v. Baitullah and another 2008 PCr.LJ 819; Alif Gul v. Noor Afzal and others PLD 2009 Peshawar 20 and Muhammad Ashfaq v. State 2008 PCR LJ 159.
5. I have examined entire record of the case threadbarely and anxiously considered the arguments advanced at the bar by the learned counsel for the parties.
6. I am, however, of the firm view that the impugned order of the learned Sessions Judge Lakki Marwat is not based on correct legal footings and merits to be set at naught. Perusal of the record indicates that the accused/respondent was directly nominated by the complainant/ petitioner Noshad Khan in his initial report which was lodged promptly for committing the murder of his brother Shadab Aslam Khan in a day light occurrence in furtherance of common intention of his co-accused. The prosecution case is duly supported by the medical evidence and sufficiently long and unexplained abscondance of fourteen years. The only ground which prevailed with the learned Sessions Judge Lakki Marwat for enlarging the accused/respondent on bail was, that since his co- accused Mushtaq was acquitted at trial and thus on the same set of evidence the accused/respondent deserved to be released on bail is not justified and is unwarranted under the law, as it has prejudiced the case of the prosecution before trial.
7. Section 497(1), Cr.P.C. Prohibits the grant of bail for offences punishable with death or imprisonment of ten years or over. Appreciation of evidence and drawing the conclusion therefrom is the exclusive function of the trial. Court which could not be anticipated at bail stage.
8. The accused/respondent had been playing fast and loose with the process of law and appeared before the Sessions Judge Lakki Marwat for bail before arrest which was not confirmed vide order dated 22-12-2008 but was subsequently admitted to bail through the impugned order. He appeared before the Court after acquittal of his co-accused' Mushtaq. Being a fugitive from law, he had lost some of his normal rights available to him under the procedural and substantive law and his noticeable B abscondance had disentitled him to the concession of bail despite the fact that his co-accused had been acquitted by the trial Court. Evidence recorded in absence of accused could not be taken into consideration and fresh evidence has to be recorded in the case which will be decided on fresh evidence recorded in the presence of the accused/respondent. Admitting an accused to bail on the solitary ground of acquittal of his co-accused amounts to an order of acquittal of an accused before trial and the subsequent trial then would become a mere formality.
Taking evidence into consideration recorded in previous trial qua the guilt of the accused subsequently arrested is not warranted under the law. At bail stage, Court has to consider prima facie case against the accused and tentative assessment of the material available on record.
Deep appreciation of the prosecution case at bail stage is not permissible for disposal of bail petition. The accused/ respondent had made himself available only when his co-accused was acquitted. He was, therefore, not entitled to the discretionary relief of bail as bonus for his absconsion.
9. From the facts and circumstances of the case narrated above, the impugned order granting bail to the accused/ respondent by the learned Sessions Judge D Lakki Marwat is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice and, therefore, is liable to be struck down. The authorities cited and relied upon by the learned counsel for the accused/respondent being distinguishable from the facts and circumstances of the case in hand are thus, not applicable.
10. In view of the facts and circumstances narrated above and the dicta handed down in the cases of Rais Khan v. Said Hanif and another 1979 SCMR 90, Sardar v. The State PLD 1979 Peshawar 16 and Ch. Javed Riaz v. The State 2007 E PCr.LJ 1332, I accept this bail cancellation application and cancel the to the accused/respondent Irshad Khan. He is present in Court, taken into custody and remanded to judicial lock up to face the trial as an under-trial prisoner.
' Above are the reasons for my short order of even date.
Bail cancelled.