ABDUL HAMEED BALOCH, J. Through this application the applicants seek bail in FIR No.27 of 2017 lodged with PS Brewery Quetta, under sections 302, 324, 452, 34 of the Pakistan Penal Code, 1860 ("P.P.C."). Earlier the bail application filed by the applicant before the Additional Sessions Judge- VI/MCTC-II, Quetta ("trial court"), was dismissed vide order dated 27th April, 2022.
2. Brief facts of the case are that on 09.02.2017 the complainant Aaqil lodged the referred FIR, alleging therein that on the stated date at about 2:00 p.m., he received information that a firing has been effected in his home, due to which his father, brother and sister-in-law received bullet injuries, and they were brought to BMC Hospital, as such he rushed to the hospital where he saw dead body of his brother Adil in pool of blood while his father and sister-in-law was found in injured condition.
On inquiry lie came to know that his sister-in-law's brothers namely Abdul Ghafar and Abdul Salam entered into their house and made firing due to which his brother died while his father and sister- in-law received injuries. The motive behind the incident was that his brother Adil contracted court marriage with the accused's sister namely Nasreen Bakhtawar, whereupon brothers of Nasreen Bakhtawar were annoyed.
3. Learned counsel for the applicant stated that the prosecution ascribed general role of firing. The prosecution has not ascribed specific role to the accused/applicant. The Investigation of the case is completed. During investigation nothing has been recovered from the accused/applicant. Mere absconsion is no ground for refusal of bail. The applicant had no knowledge about the crime report.
4. Conversely learned A.P.G. strongly apposed the contention of learned counsel for the applicant stated that the injured witnesses specifically assigned role of firing to both the accused the defence failed to point out any reason for false implication.
5. Heard. Perused the record. The record transpires that the complainant in crime report have nominated the accused along with absconding accused. As per crime report the occurrence took place on 09.02.2017 at 1:45 p.m. The complainant as well injured witnesses in 161, Cr.P.C. statement clearly stated that the accused and absconding accused entered the house, made firing upon them. Prima facie it appeared that both the accused with common intention tried to commit murder of Adil (husband of their sister). In Noor Sultan and other's case 2021 SCMR 176, the Hon'ble Supreme Court observed as under:-
5. We have heard the learned counsel for the petitioners, learned Law Officer and gone through the record.
The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflects that there is no chance of any consultation or deliberation at the part of prosecution. Otherwise it is an admitted fact that the occurrence has taken place inside the house of complainant wherein one female lost her life whereas four persons sustained injuries including three women folk. As far as the contention of the learned counsel for the petitioners that it is case of individual liability and each of the petitioner is to be treated according to the role ascribed, it is worth mentioning that in criminal matters each case has its own facts and circumstances. In the instant case, the accused persons five in number in furtherance of their common object trespassed into the house of complainant; as a consequence instant occurrence has taken place. The accused persons nominated in the crime report had a definite motive to commit the crime alleged against them, while joining hands with each other, hence, any finding qua role of each accused at this stage by this Court would certainly prejudice the case, when it is stated at bar that the trial has commenced and two prosecution witnesses has already been recorded by the learned trial court.
In such like situation, this Court has already enunciated the principles in (1980 SCMR 203)
"Muhammad Sadik and others v. The State" (1990 SCMR 307), "Allah Ditta and others v. The State" and (2007 SCMR 1793) "Gul Akbar v. The State". The observation made in 2007 SCMR 1793 is as under:- "It is to be noted that challan of the case has already been submitted, trial commenced and case is fixed for recording of prosecution evidence for 26.07.2007. The petitioner may move an application for bail before the learned trial court. We are deliberately withholding our comments on merits of the case to avoid the possibility of causing prejudice against any party. By now it is well settled that "it is not the practice of the Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the courts inquiring into the guilt of the accused persons. The discretion has, of course, to be exercised on sound judicial principles."
6. It appears from the record of case that the crime report was registered on 09.02.2017 while the accused has been arrested in the year 2022, meaning thereby the accused remained absent for almost five years. It is settled law that fugitive from law and noticeable abscondence disentitle the absconder to the concession of bail notwithstanding merit of the case. In this regard reliance is placed on the case of Muhammad Khan v. Iqbal Khan 2021 SCMR 2017, whereby it has been held as under:
3. Totality of circumstances does not admit space, that too, within the restricted scope of tentative assessment to hypothetically absolve the respondent from the indivisibility of his role of being in the community of intention with the allegation of active participation in the crime.
Though the absconsion by itself is not proof of guilt nor insurmountably stands in impediment to release of an offender if otherwise a case for grant of bail is made out, nonetheless, it is a circumstance which cannot be invariably ignored without having regard to peculiarity of circumstances in each case as there are situations that possibly entail consequences. In the present case, both the respondents opted to avoid the law; one of them is yet not arrested, thus, in the absence of any investigative analysis or conclusion, there was no occasion for the High Court to itself presumptuously extricate the respondent from the web, woven by the identity of circumstances jointly hovering upon both the accused; the impugned exercise transcends beyond the barriers of tentative assessment; it throws the entire prosecution case to the wind, an option neither contemplated by law nor falling with the remit of "further inquiry"; a case for intervention stands made out. Criminal petition is converted into appeal and allowed; impugned order dated 20.05.2020 is set aside and ball granted to the respondent Is cancelled.
7. The FIR had been lodged with reasonable promptitude. The occurrence took place in day light.
The parties have know to each other. As per statement of sister of applicant she solemnized marriage with Adil on her freewill but her family had not accepted the same. On the fateful day the accused entered into the house with intention to kill the deceased. Prima facie there was motive for killing the deceased. The medical evidence also support the ocular account. In this regard I am fortified from the dictum laid down on the case of Rehmatullah alias Inshaf v. State 2020 SCMR 357, whereby it has been held as under:- "After hearing the learned counsel for the parties and going through the record we have observed that the occurrence in this case had taken place in daylight and an FIR in respect of the same had been lodged with reasonable promptitude wherein the present petitioner had specifically been named as the principal accused and effective firing at Majeed Khan deceased as well as ineffective firing at Sajjad Gul complainant had been attributed to him therein. It is not disputed that the eye-witnesses mentioned in the FIR have so far stood by their statements made before the police fully incriminating the petitioner and also that prima facie the medical evidence lends support to the ocular account in respect of the role attributed to the petitioner.
Apparently the petitioner was connected with the motive set up in the FIR and during the investigation a pistol had been recovered from his custody which firearm had matched with two crime-empties secured from the place of occurrence and also with a bullet recovered from the deadbody of Majeed Khan deceased. According to the record the petitioner had remained a fugitive for three long years before he was arrested in connection with this case. This petitioner trial has already commenced. In view of all these factors available on the record prima facie reasonable grounds exist to believe in the petitioner's involvement in the alleged offences. This petition is, therefore, dismissed and leave to appeal is refused."
8. As per record prima-facie both the nominated accused had active participation in commission of crime with common intention. Both the accused are brothers, their presence at the place of occurrence establishes from the statement of witnesses. In this regard reliance is placed on the case of Basharat Ali v. State (2022 SCMR 267), whereby it has been held as under:
5. We have heard the learned counsel for the parties at some length and gone through the record with their able assistance.
There is no denial to this fact that the occurrence has taken place within the premises of Police Station Miana Gondal, the parties also belong to the same vicinity and there is no chance of mis-identification especially when the parties are inimical to each other. As per the accusation against the petitioner, he is ascribed the role of causing fire-arm injury on the body of the deceased as well as injured PW. Both the injuries are spelt out from the medical report. During the course of first investigation, the petitioner was found fully involved in the case. The claim of the petitioner that during the second investigation, he was found innocent does not imprint any concession in his favour especially when this aspect was already taken into consideration by the High Court while dismissing the petition for bail in the first round of litigation. Further that the Investigating Officer who gave opinion in favour of the petitioner has not dared to place his name in column No. 2, rather the same was placed in column No.3 of the report submitted under section 173, Cr.P.C. Further that the ground urged before the High Court and before us was already in the knowledge of the petitioner and that cannot be made basis for filing another application before the High Court keeping in view the dictum laid down in The State through Advocate-General, NWFP v. Zubair and 4 others (PLD 1986 SC 173), otherwise the ipse dixit of the police is not binding, rather it has persuasive value but that depends upon the facts and circumstances surfaced on the record. It is salutary principle of law that each criminal case has its own facts and circumstances and has to be decided according to the peculiar facts brought on the record. The contention of the learned counsel that the recovery has become inconsequential has no bearing at this stage and the same would be resolved after recording of the evidence.
In view of above, the application being devoid of merits is dismissed.
Needless to observe that the observations made in this order are tentative in nature and shall have no bearings on merits of the case at trial.