MUHAMMAD DAUD KHAN, J.- The accused /petitioner Shahzad being unsuccessful in obtaining bail from the Court of learned Additional Sessions Judge-III, Bannu, vide order dated 24.10.2014, in case FIR No. 56 dated 03.03.2012 under section 302/34 PPC Police Station Basia Khel, Bannu, has come to this Court for the same relief.
2. I have given my consideration to the respective arguments of the learned counsel for the parties and have perused the record with their valuable assistance.
3. The prosecution case, as is evident from the First Information Report is that, on 03.03.2012, he, the complainant Izzat Khan alongwith brother Sher Bahader and nephew Ansrullah after Isha prayer were on the way towards their house, when reached near the chowk, at about 2015 hours, accused /petitioner Shahzad and co-accused Abdullah armed with Kalashnikovs, started firing at Sher Bahader, with the intention to commit his qatl-e-Amd, as a result of which he was hit and fell on the ground. The accused after commission of offence decamped from the spot. When they attended the victim, he was at his last breath.
4. It appears from the record that challan has already been put in Court and the accused- petitioner had been summoned by the trial Court, copies delivered to him in compliance of section 265-C Cr.PC, charge framed and three PWs have been examined, but in the meanwhile, case file was requisitioned by this Court in connection with the instant petition. It has remained practice of the apex Court not to interfere in the order passed by the lower Court under section 497 Cr.P.C. unless void, without jurisdiction or factually erroneous, particularly, at a stage when trial has commenced or is likely to commence in the near future in murder cases, because any expression on merits at such stage, would cause prejudice to either party, at trial stage and this principle has been firmly and clearly laid down by the apex Court in Muhammad Ismail's case (PLD 1989 585).
Thus, deriving wisdom from the dictum laid down by the Hon'ble Supreme Court in the case (supra) bail cannot be granted on the proposition based on merits discussed today by the defence, however, suffice it to say that accused-petitioner is directly charged for effective firing at the deceased in presence of complainant and Ansarullah.
Recovery of crime empties from the spot and Post mortem report support the version of the complainant. On tentative assessm ent of the record, reasonable grounds exist which prima facie connect the accused-petitioner with the commission of offence entailing capital punishment which falls within the Prohibitory Clause of Section 497 Cr.P.C., therefore, he is not entitled to concession of bail.
5. The contention of learned counsel for accused/ petitioner that co-accused Abdullah has been acquitted during earlier trial, hence, the accused/ petitioner deserves to be released on bail. The judgment of acquittal of co-accused rendered in earlier trial, arising out of the same transaction would be wholly irrelevant in case of an accused arrested after a long abscondence. It is well settled principle of criminal administration of justice and reported through catena of decision of Courts that acquittal of co-accused in a prior trial does not mean that the absconding accused, subsequently arrested, would be entitled to an acquittal without putting him to trial. The observation made by the learned trial Court on the quality of evidence recorded in the earlier trial of co-accused, has no relevancy in the instant case, thus unfounded. In case titled "Raees Khan Vs Said Hanif and another" (1979 SCM R 90), the august Supreme Court was pleased to ruled that the acquittal of co-accused would not be a bar for the trial Court to re-apprise the evidence led before it by prosecution.
6. Moreover, the accused/petitioner remained fugitive from law from the date of occurrence since their arrest and fugitive from law loses the normal rights granted by procedural and substantive law. Unexplained noticeable absconsion of accused/ petitioner may disentitle him for concession of bail even on merits. No doubt, abscondence alone may not be a hindrance in the way of granting bail, but in the instant case, abscondence of the accused/petitioner, being deliberate and intentional, is relevant. Had, he not gone into hiding, he would have been tried with co-accused, but instead he preferred to wait for decision of the Court in case of co-accused. Such a conduct of the petitioner cannot be ignored under any law or principle. Unexplained noticeable abscondence disentitles a person to the concession of bail, notwithstanding the merits of the case. In a murder case, abscondence deprives an accused from the concession of bail, unless the offence is bailable or he gets it as of right. The Apex Court, while deciding case titled "Sher Ali alias Sheeri Vs the State"
(1998 SCM R 190) has highlighted the principle for grant of bail to an absconding accused. In another case titled, "Akhtar Ali Vs Azhar Ali Shah and others" (1985 SCM R 1166), while canceling the bail granted to accused the Hon'ble Supreme Court observed the following:- "We are satisfied that bail to the respondent was not deserved. The fact that he had remained absconder for longtime was a relevant factor and should not have been lightly taken in enlarging him on bail."