MUHAMMAD DAUD KHAN, J.- Accused/ petitioner Bilal Khan, involved in case F.I.R No. 656, dated 22.12.2008, under sections 302/324/34 PPC of Police Station, Naurang, after refusal of his bail application from the Court of learned Additional Sessions Judge-I, Lakki Marwat, has come to this Court for the same relief.
2. The allegations against the accused/ petitioner, as per F.I.R, referred to above, are that on 22.12.2008, at 11.00 hours, in the fields of Ghaludai, he alongwith co-accused Inayatullah, duly armed with firearm started firing at the complainant, his brother Matiullah and nephew Mohibullah. As a result of which, his brother Motiullah sustained injuries and died at the spot, whereas they luckily escaped unhurt. Motive alleged by the complainant was dispute over landed property. On report of complainant above mentioned FIR was registered.
3. Arguments heard and record perused.
4. Perusal of the record divulges that the occurrence took place on 22.12.2008, at 11.00 hours, whereas the report has been lodged at 12.15 hours, while distance between the spot and police station has been mentioned in the FIR as 9/10 K.M. Samiullah is the complainant of the case who has directly charged the accused/petitioner along with co-accused for commission of the offence with a specific motive.
5. Admittedly and as is evident from the record accused/ petitioner remained absconder after the occurrence for a considerable long period of more than five and half years and after acquittal of his co-accused Inayatullah, he surrendered himself, prima facie it appears that the petitioner/ accused was waiting for the acquittal of his co-accused. If, in the attending circumstances of the case, he is granted bail merely due to acquittal of co-accused, then most of the accused would remain fugitive from law during disposal of the case of their co-accused. Wisdom is derived from a case law "Atlas Khan Vs Mazamullah Khan and another" (1989 PCr. LJ 2044 Peshawar), wherein it is held that the accused who absconded after the occurrence for noticeable period, would not be invariably entitled to bail merely because his co-accused had been acquitted in the case.
Further, a fugitive from law loses some of his substantive as well as procedural rights and on this ground alone his bail can be refused, irrespective of the other merits of the case. Reliance in this respect may be placed on case titled "Sulaman Bahadur Vs State and another" 2010 PCr.LJ 1780 (Peshawar).
6. Moreover, the evidence recorded in absence of accused/ petitioner cannot be taken into consideration neither at bail stage nor during trial, as the fate of accused/ petitioner would be decided on the evidence recoded in his presence. In this respect case of "Sardar Vs State" (PLD 1979 Peshawar 16) can favorably be reproduced as below:- "Accused/ petitioner remaining outlaw after occurrence for about eight years and his trial to be held independently of previous trial resulting in acquittal of his co-accused. Contention that other accused in case having been acquitted and evidence being same in both cases, petitioner exonerated from charge of murder. Held. Not correct. Acceptance of contention amounts to examining of witnesses in petitioner's case as a matter of mere formality or there being no need to examine such witnesses for reason of such evidence having already been taken into consideration in previous case and such course not permissible in law. Bail application rejected."
7. On merits, tentative assessm ent would show that it is a day light occurrence, whereas the parties are already known to each other, hence, there is no question of misidentification. The IO during spot inspection apart from blood stained earth also recovered eight empties of 7.62 bore from the place of accused/ petitioner and co-accused. Post mortem report and blood stained garments of deceased having cut marks further supplement the case. When all these material pieces of evidence taken in juxtaposition a reasonable ground do exist, which connect the accused/ petitioner with the commission of offence, falling under the prohibitory clause of section 497 Cr.PC.
8. Moreover, investigation in the case is complete and trial is ready for commencement in the near future, but in the meanwhile, case file was requisitioned by this Court in connection with the instant petition. Much has been argued before me from either side, but discussion on all these points would amount to deeper appreciation of evidence which has always been deprecated by the Hon'ble Superior Courts at bail stage.
7. In view of this factual position petitioner is not entitled for concession of bail. Thus instant bail application is dismissed.
However, learned trial court is directed to conclude the trial within a period of two months, positively if not earlier than that. This order being tentative in nature would have no effect upon the merits of the case.