' SHER MUHAMMAD KHAN, J.---Vide F.I.R. No,347 dated 11-10-2007 under section 302/324/34, P.P.C.
Registered in Police Station, Mandan District Bannu, petitioner Gul Babrai Khan charged present respondent Rahmatullah Khan and two others acquitted co-accused namely Asif Khan and Anwar Khan for the murder of his nephew Qismatullah Khan and attempting to commit his murder.
2. Acquitted accused Asif after remaining absconder for two months was arrested in the case and claimed that he is juvenile, therefore, after inquiry through medical board he was declared juvenile and for that reason separate trial was conducted against him and he was acquitted by the learned Additional Sessions Judge-III, Bannu vide Judgment / Order dated 15-2-2010.
3. Another acquitted co-accused Anwar Khan also remained fugitive from law and was ultimately arrested during raid by Nawab Khan S.H.O. On 6-7-2008. Supplementary challan was submitted against him and after framing formal charge, to which he denied and claimed trial. The learned Additional- Sessions Judge-I, Bannu also acquitted him on 15-2-2010.
4. Respondent Rahmatullah, after acquittal of his co-accused was arrested on 23-2-2010 in the above mentioned case and was sent to judicial lock up.
5. He applied for his release on bail before the learned Additional Sessions Judge-I, Bannu, who was pleased to release him on bail vide order dated 16-3-2010.
6. Petitioner / complainant Gul Babrai Khan has challenged the release of respondent No,1 Rahamatullah through the instant cancellation petition.
7. Learned counsel appearing on behalf of petitioner argued that the learned Additional Session Judge-1, Bannu has granted bail to the accused on the ground that the role attributed to the respondent No,1 is similar to that of the acquitted co-accused, which by itself is no ground for releasing the respondent No,1 on bail. He further argued that fugitive from law loses some of his normal rights available to him under the law, therefore, he should not have been granted bail as per Judgments given by the superior Courts. He argued that long abscondance for more than two years disentitles the respondent No,1 from the concession of bail notwithstanding merits of the case. He placed reliance in the Judgments titled Jan Muhammad versus The State reported in 1978 SCM R 287, Akhtar Ali v. Azhar Ali Shah and others reported in 1985 SCM R 1166, Atlas Khan v.
Mazamullah Khan and others reported in 1989 PCr.LJ 2044, Ibrahim v. Hayat Gul and others reported in 1985 SCM R 382, Sardar v. The State reported in PLD 1979 Peshawar 16 and Awal Gul v.
Zawar Khan reported in PLD 1985 Supreme Court 402.
8. On the other hand, learned counsel for respondent No,1 defended the impugned order on the ground that consideration for cancellation of bail are quite distinct from consideration for grant of bail, once bail is granted by competent Court of law then strong and exceptional grounds are required for cancellation of the same. He next contended that there is no allegation that respondent No,1 has misused the concession of bail granted to him. Neither some fresh facts nor material had been collected' by the police during investigation, which could tend to establish or point out guilt of the accused. His contention was that provision of section 497, Cr.P.C, being not at all punitive in nature, therefore, strong and exceptional grounds are needed for cancellation of bail, which is lacking in the present case. He argued that abscondance by itself is no ground for cancellation of bail. He next argued that when the trial has commenced or going to commence the superior Courts should avoid discussion in remarks on merits, and bail cancellation petition should be avoided. He placed reliance on the Judgments titled Muhammad Azhar v. Dilawar and other reported in 2009 SCM R 1202, Mst. Noor Habib v. Salim Raza and others reported in 2009 SCM R 786, Muhammad Ahmad Sheikh v. Muhammad Aslam and others reported in 2007 PCr.LJ 1481, Muhammad Akram v. Zahid lqbal reported in 2008 SCM R 1715, Muhammad Nawaz v. Baitullah and others reported in 2008 PCrLJ 819, Haji Khan Shareen and others v. Siraj reported in 2006 PCr.LJ 212 and Main Dad v. The State and others reported in 1992 SCMR 1458.
9. I have carefully perused the record in the light of arguments, advanced by learned counsel for the parties.
10. No doubt bail, once granted by a competent Court should not be cancelled in ordinary course but if the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of Justice then interference of the superior Courts is always required. In the instant case, without going into the merits of the case, admitted position is that the respondent No,1 remained fugitive from law and waited for the result of his co-accused who faced trial and it is after the acquittal of his co-accused either he surrendered or was arrested by the police. The learned Additional Sessions Judge-I, Bannu, granted him bail on the simple ground that the role attributed to respondent No,1 is similar to that of Anwar Khan acquitted co-accused, both are charged for ineffective firing. Such conduct of the absconding accused has never been encouraged by our superior Courts. In the case of Atlas Khan versus Mazamullah Khan and another reported in 1989 PCr.LJ 2044, it has been held by this Court that if absconders were granted bail merely due to the acquittal of the co-accused then most of the accused would remain fugitive till disposal of case and would appear only after acquittal of co-accused which would tantamount to a premium for abscondance rather than a category of evidence against him. Similarly, in the case reported in 1978 SCM R 287 the august Court refused to set aside bail cancellation order, passed by this Court, where the learned Additional Sessions Judge, Peshawar has granted bail to the accused on the ground that his co-accused has been acquitted.
11. The respondent has been arrested on 23-2-2010 and supplementary challan has also been given against him but the trial Court has yet to take cognizance.
12. As the trial of the accused is likely to commence in the near future, therefore, I would not enter into the merits of the case. Suffice to say that in the light of the Judgments referred to above and keeping prolong abscondance for more than two years, the accused/respondent No,1 was not entitled to the concession of bail. The order of the lower Court, releasing respondent No,1 on bail is against established principle of law which amounts to encourage fugitive of law by giving them benefit/concession for showing disrespect to law and institutions established under the law.
Therefore, the bail granting order dated. 16-3-2010, passed by learned Additional Sessions Judge-I, Bannu is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice, therefore, it is recalled / cancelled by accepting the instant bail cancellation petition and resultantly, the accused/respondent No,1, present in Court, be taken into custody and sent to judicial lock up to face his trial.
' The case file be sent forthwith to the trial Court for taking cognizance and initiating trial of the Respondent No, 1 . The learned trial Court is further directed to complete the trial within three months positively after receiving the case file.