NISAR HUSSAIN KHAN, J.---Petitioner Kamran seeks his release on bail in case F.I.R. No,522, dated 12-11-2013 registered under sections 302/148/149, P.P.C. At Police Station Daudzai, Peshawar.
2. Learned counsel for petitioner argued that 9 persons are charged for a single injury on the head of the deceased and in this way wide net has been thrown. He maintained that petitioner was arrested on 18-5-2014 while rest of the accused are absconding; that medical evidence is at variance with ocular account; that mere abscondence of the petitioner would not disentitle him to the concession of bail; that it is yet to be established that which of the accused has caused fatal injury, hence case of the petitioner requires further enquiry into his guilt and as such he is entitled for the concession of bail not as a matter of grace or concession but as a matter of right. He placed reliance on the cases reported as 1980 SCMR 784, 1997 SCMR 251, PLD 2011 Supreme Court 178, 2013 SCMR 1415, 2012 SCMR 1137 and 2012 SCMR 1273.
3. As against that learned counsel for complainant while controverting the arguments of the learned counsel for petitioner contended that no deeper appreciation of evidence can be made at bail stage and only tentative assessment is permissible. He maintained that petitioner is directly charged for commission of crime in which a young boy of 20 years has been brutally done to death and all the accused, including petitioner are vicariously liable for the offence charged with.
He maintained that after commission of crime, petitioner remained absconder which lends further support to the prosecution case and that after arrest of the accused, Challan has been submitted and the trial has commenced, so at this stage, petitioner is not entitled to the concession of bail. In support of his submissions, he placed reliance on 1981 SCMR 1092, 1979 SCMR 92, PLD 1989 Supreme Court 585, 1992 SCMR 1418 and 1996 SCMR 931.
4. I have heard the arguments of learned counsel for the parties and have also gone through the record as well as the case law cited at the bar with their valuable assistance.
5. As per F.I.R., it is a day light occurrence which took place at 4-00 p.m. In Muhammad Israr Market, Naguman, District Peshawar. As per report the petitioner along with his co-accused have severely thrashed the deceased with kicks, fists, sticks and handle of hatchet blows, as a result of which, he became unconscious and brought to the Hospital, where report was lodged by the complainant Haji Muhammad A Zahir Khan who along with others have witnessed the occurrence. According to initial medical report, the deceased was semi unconscious, having skin scratch at anterior part of head and huge swelling extending upto forehead on right side. He has also abrasion on left side of chest on anterior axillary bone. In Doctor's opinion, the weapon used was blunt. The deceased succumbed to the injuries on the same day at 6-05 p.m., according to the treatment chart of Lady Reading Hospital, Peshawar. The Postmortem report depicts that there were bruises on the right side of skull of 8 x 2 cm in size, from front to back, 2 cm from midline and 7 cm above the eye-brow with bleeding from nose and both ears. The medical reports are suggestive of the fact that how severely the deceased was thrashed which resulted into bleeding from nose and both ears and having severe injuries on the head, chest and axillary area. It is also a fact that kicks and fists blows seldom leave sign of their inflictions, particularly on the body trunk area, though they cause severe damage to the vital inner organs of the trunk. Such like injuries cannot be termed to have been caused by a single person nor one can be absolved from his criminal liability when assailants are more in number. Rather each one of the assailants is vicariously liable for the offence committed.
Besides that, four eye-witnesses have recorded their statement before the Magistrate under section 164, Cr.P.C., and they all have supported the prosecution version in all respects of mode, manner and the Number of assailants. In such like cases, role of each accused cannot be segregated for purpose of conviction and sentence. Since each one of the unlawful assembly has actively participated in the crime in prosecution of their common object, so they all including petitioner are burdened with constructive liability. Reliance is placed on the case titled Munawar v.
The State (1981 SCMR 1092).
6. Section 497(1), Cr.P.C. Places complete bar on grant of bail in offences entailing punishment of death, imprisonment for life or imprisonment for ten years. Nevertheless bail can be allowed, pursuant to section 497(2), Cr.P.C., which in unequivocal terms stipulates that if it appears to the officer incharge of Police Station or court at any stage of investigation, enquiry or trial, as the case may be, that there are no reasonable grounds for believing that accused has committed a non- bailable offence but there are sufficient grounds for further enquiry into his guilt, accused shall be released on bail. Without recording such findings, the accused cannot be released on bail merely on the ground of further enquiry, for almost every criminal case, in normal course, is of further enquiry. This provision has time and again came under consideration of the august Supreme Court and their Lordships observed in a case titled Muhammad Sadiq v. Sadiq and others (PLD 1985 Supreme Court 182) that the accused shall be released on bail if the court after taking cognizance comes to the conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Without such findings of the court; an accused shall not be released on ground of mere further enquiry under subsection (2) to section 497, Cr.P.C. Same view was reiterated in the cases titled Arbab Ali v. Khamiso and others (1985 SCMR 195) and Asmatullah Khan v. Bazi Khan and another (PLD 1988 Supreme Court 621). In the latter case, their Lordships have further observed in Paragraph-3 of the judgment that mere possibility of further enquiry which exists almost in every criminal case, is no ground for treating the matter as one under subsection(2) of section 497, Cr.P.C. And same was the view expressed in the cases titled Mst. Bashiran Bibi v. Nisar Ahmad Khan and others (PLD 1990 Supreme Court 83) and lqbal Hussain v. Abdul Sattar and another (PLD 1990 Supreme Court 758). In these cases, bail allowed by the High Court was cancelled by the august Supreme Court for violation of the same principle.
In the case titled Shoaib Mahmood Butt v. Iftikhar ul Haq and 3 others (1996 SCMR 1845), the august Supreme Court while elaborating the principle of further enquiry held as follows:-- "Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C. But there are grounds for further enquiry which may show that he may not be convicted of the charge under section 302, P.P.C. But may be acquitted or convicted for a lesser offence."
7. The principle so laid down by the august Supreme Court as referred herein above, still holds the field and has not undergone any change of view of the apex Court. In view of the direct charge made in the F.I.R., supported by medical evidence, statement of eye-witnesses and noticeable 'abscondence of the accused which on principle of res gestae, being immediate conduct of accused, corroborates the prosecution case as a circumstantial evidence, no such findings can be recorded by this court that there are no reasonable grounds for believing that the petitioner has committed a non-bailable offence but there are sufficient ground for further enquiry into his guilt. It follows that case of the petitioner does not fall within the purview of section 497(2), Cr.P.C., at the touchstone of case law referred herein above.
8. Besides that petitioner after occurrence, remained absconder for a period of six months and has not offered any explanation for his noticeable abscondence, much less plausible. It is settled law that a fugitive from law loses his normal rights, procedural as well as substantial, and bail may be refused on the sole ground of abscondence E regardless of the merits of the case. In the case titled Muhammad Sadiq v. Sadiq and others (PLD 1985 Supreme Court 182) bail allowed by the Peshawar High Court Abbottabad Bench was cancelled by the august Supreme Court wherein there was unexplained noticeable abscondence of six months of the accused. Same view was expressed by their Lordships in the cases titled Awal Gul v. Zawar Khan and others (PLD 1985 Supreme Court 402) and Ibrahim v. Hayat Gul and others (1985 SCMR 382) and latest in the line is Raja Fazal ur Rehman v. Muhammad Afzal and another (2010 SCMR 179).
9. Another important development worthwhile to be mentioned is that Challan has been put in court and trial is to commence. In such situation, it has all along been the settled principle of law, set by the august Supreme Court that when case is fixed for evidence, bail application should not be decided on merits and the matter be left to the discretion of the trial court lest it may prejudice case of either side. In this respect cases of Muhammad Sadik and others v. The State (1980 SCMR 203), Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 Supreme Court 585), Mian Dad v. The State and another (1992 SCMR 1418), Said Akbar and another v. Gul Akbar and another (1996 SCMR 931) and Shahid Farooq v. The State and others (2011 SCMR 1619) may be referred.
10. So far as case law referred by the learned counsel for petitioner is concerned, that has got no relevance to the facts of instant case and are distinguishable on facts. Learned counsel for the petitioner placed reliance on the case titled Jaffar and others v. The State (1980 SCMR 784) in support of his proposition that who is responsible for the fatal injury out of all the accused charged, makes room for consideration regarding common intention of all the accused. In that case, there was cross report lodged by the accused earlier than that of the complainant, giving counter- version to the occurrence wherein petitioner was also given hatchet and lathi blows and in that scenario, the judgment so referred is distinguishable on facts and in this regard one may conveniently take guidance from 1981 SCMR 1092 (supra) facts of which squarely coincide with the facts of instant case. Similarly, the case titled Muhammad Aslam and another v. The State (1997 SCMR 251) is also a case of cross version in which accused has also sustained injuries at the hands of the complainant party which is also distinguishable on facts. The case of Asmatullah v. The State and others (PLD 2011 Supreme Court 178) is also distinguishable on two counts; firstly it was a firearm injury case which crime can be done by sole person for elimination of any number of the victims whereas in a case of kicks and fists injuries, as is the case in hand, it cannot be accomplished by a single accused; secondly, another F.I.R. Regarding the same occurrence was registered by police in which petitioner was not charged which made a case of further enquiry. And thirdly it was a cancellation petition against grant of bail by the High Court which in normal course is not interfered with by the august Supreme Court unless the order is found to be perverse, arbitrary or fanciful. The case of Khalid Mehmood, and another v. Muhammad Kashif Rasool and others (2013 SCMR 1415) is also distinguishable on facts; firstly it was a cancellation application before the august Supreme Court; secondly, there was a cross version; and thirdly, role assigned to the accused was of firing on different parts of the deceased's body but as per medical report, there were only two injuries. Whereas in the instant case, neither there is cross-version nor the medical report is at variance with the ocular account. Rather it fully supports the prosecution case. Beside that such deeper appreciation of evidence cannot be undertaken at bail stage to evaluate the medical evidence vis-a-vis the ocular account and this practice has been deprecated by the august Supreme Court in the cases titled Abdul Hayee and 2 others v. The State (1996 SCMR 555) and Mumtaz v. The State (2012 SCMR 556).
11. Learned counsel for petitioner in support of his submission that mere abscondence would not disentitle the accused to concession of bail placed reliance on the case of Ehsanullah v. The State (2012 SCMR 1137) and Ikram ul Haq v. Raja Naveed Sabir and others (2012 SCMR 1273). There is no cavil with the proposition that if the accused is otherwise found entitled to concession of bail on merits, he would not be declined the same relief merely on the ground of abscondence. In the first case bail was allowed by august Supreme Court despite abscondence because investigating agency had reached at definite conclusion that the accused was not even present on the scene of occurrence. Likewise in second case, accused was not nominated in the F.I.R., in any capacity, whatsoever. His name surfaced for the first time in the supplementary statement of the complainant who was not an eye-witness of the occurrence. He had also no nexus with the motive alleged in the F.I.R. Besides that he' was also not visible at the scene of crime at the relevant time in close circuit TV (CCTV) footage of the occurrence. In that scenario, his case called for further enquiry, so was allowed bail despite absconsion and petition for cancellation was declined by the august Supreme Court. None of the case, on material particulars coincides with the facts of the case in hand, hence all the judgments referred by the learned counsel for petitioner are simply irrelevant.
12. In view of direct and primary ocular account of eye-witnesses, supported by medical evidence and unexplained noticeable abscondence, petitioner is prima facie connected with the offence entailing capital punishment. The challan has also been submitted where accused has been summoned by trial court and trial is to commence. Thus in this scenario and in view of the detailed discussion made hereinabove and following the principle settled by the august Supreme Court, this bail petition is dismissed.
13. It is clarified that any observation made in this order, in essence is tentative, confined only to the extent of bail matter which would not influence the mind of the trial court in any manner who shall form its own independent opinion after recording evidence.