' MRS. SYEDA TAHIRA SAFDAR, J.---The applicant Muhammad Ishaque preferred the instant application with prayer for grant of bail in his favour contending that he being innocent, committed no offence, while the F.I.R. Failed to assign him any specific role in commission of the offence.
Further, the co-accused Hazoor Bakhsh and Muhammad Arif were already acquitted of the charge on completion of trial vide judgment dated 8th June, 2001 of Additional Sessions Judge-IV, Quetta therefore, his case being at par with them, and as a rule of consistency he also deserves to be released on bail. Furthermore, the mentioned facts brought his case within the ambit of further inquiry. In addition thereto the evidence, on record neither appealed a prudent mind, nor free from reasonable doubt, therefore, the benefit arising therefrom need to be exercised in his favour.
Furthermore, he being a man of old age, the fact entitled him for his release on bail.
2. Pursuant to F.I.R. No,138 of 1998 Police Station Civil Line, Quetta an incident allegedly happened on 3rd August, 1998 was reported on the same date by one Muhammad Bakhsh, thereby specially nominated six persons along with some unknown persons, with an allegation that they (nominated persons) killed his brother namely Abdul Razaq through firearms. Initially the case was challaned to the extent of Hazoor Bakhsh and Muhammad Arif, apprehended soon after the occurrence, who on completion of trial acquitted of the charge vide judgment dated 8th June, 2001. The applicant remained absconder during the intervening period, but apprehended in recent past, thereby approached the trial Court for his release on bail, but the request was declined vide order dated 10th April, 2013, hence the instant application.
3. Learned counsel for the applicant contended that there was no eye-witness of the occasion, nor even the complainant was an eyewitness. Further, no any specific role was assigned to him in commission of the act, as only one injury was described to be found on the body of the deceased.
Furthermore, history of previous enmity made the case of further inquiry, thereby entitled him for grant of bail. The learned counsel further contended that the, contradictions appearing in the statement of the complainant with the contents of F.I.R. Created doubt, and benefit whereof to be extended in his favour even at the stage of bail. Furthermore; his old-age also entitled him for grant of bail during pendency of trial. It was further contention of the learned counsel that though the applicant described as absconder during all these years, but in fact was at Quetta having no knowledge about his involvement in any criminal case. Learned counsel placed reliance on:-- ' Ehsanullah v. The State 2012 SCM R 1137 ' Qamar alias Mitho v. The State PLD 2012 SC 222 ' Nigah Hussain Shah v. The State 2009 PCr.LJ Lah. 1101
4. In reply the learned counsel for the complainant stated that the applicant was specifically nominated in commission of the offence, while the contents of F.I.R. Also describe the motive behind the act. He referred to:-- ' Muhammad Sadiq v. Muhammad Arshad 1997 PCr.LJ 866 ' It was further contention of the learned counsel that the details of the case need not to be considered at the stage of bail, as it would have an effect on merits of the case. Further, the fact that the applicant remained absconder for a long period had to be taken in account while granting concession of bail in his favour. The reliance was made on:-- ' Ch. Javaid Riaz v. The State 2007 PCr.LJ 1332 ' The learned counsel further contended that the evidence recorded in absence of an accused person cannot be used against him, not any finding can be made on its basis. Same was the case in the instant case; therefore, the fact of acquittal of co-accused would not benefit the applicant at this stage. Furthermore, as the absence of the applicant was wilful, and he never surrendered during all these years.
' Therefore, this fact disentitled him for concession of bail at this stage. Learned counsel referred to:-- ' Mst. Mastari v. Noor Nawaz alias Noor Niaz 1999 PCr.LJ 616 ' Nawshad Khan v. Irshad Khan 2009 YLR 2123 ' Khial Gul v. The State 2002 PCr.LJ 1054 ' Jan Muhammad v. The State 1978 SCM R 287 ' Muhammad Iqbal v. The State 2003 M LD 669
5. Learned Deputy Prosecutor-General stated that the applicant was specifically nominated, with a specific role, and being declared as proclaimed offender, due to his absence, therefore, not entitled to be released on bail in the instant case, which pertains to an offence non-bailable in nature.
6. The facts as transpired from the papers annexed with the application that the matter was timely reported, and the name of the applicant appeared in the contents of F.I.R. Along with other persons alleged to be involved in commission of the offence. The F.I.R. Was lodged in the year 1998, while two of the nominated persons namely Hazoor Bakhsh and Muhammad Arif were apprehended, and the trial commenced to their extent. On finalization there was an order of acquittal on 8th June, 2001. During course the applicant remained absconder, while apprehended in the year 2013, after lapse of 15 years. The applicant claimed himself to be resident of the area, but asserted his ignorance about pending of criminal case against him, but, he being close relative of the two of the co-accused persons facing trial, it cannot be believed that he (applicant) was not in knowledge of the fact during all these years. His absence seemed to be deliberate. The fact that the applicant remained fugitive from law for about fifteen years disentitled him for concession of bail in his favour at this stage. Furthermore, it is B an established principle that a fugitive from law loses some of his normal rights available to him in procedural, and substantive law due to his own act.
7. It was also case of the applicant that two of the nominated persons already faced trial, thereby acquitted, during course the evidence recorded failed to make out any case against him (applicant). The argument of the learned counsel do not have the force, for the reasons that the evidence recorded in absence of an accused person cannot be made basis for recording any order of conviction or acquittal to his extent. Further, if the evidence recorded earlier is considered at this stage, it amounts to decision of the case against the applicant, even before commencement of trial against him, therefore, the evidence recorded earlier is out of consideration at this stage.
8. The applicant also prayed for his release on bail being an elderly person. In view of the narrated facts this ground is not available to him. Even otherwise the plea of being a man of advance age, and physically infirmed is not considered to be a valid ground for grant of bail, an established principle.
9. In view of the above discussion there is no need to go into merits of the case, the unexplained absence of the applicant from the legal process for a period of fifteen years, disentitled him for grant of bail in his favour at this stage, resultantly the instant application is hereby dismissed.
' The observations made hereinabove are tentative in nature, thus shall have no bearings on findings of the trial Court.