IJAZ ANWAR.J Through instant bail application, accused petitioner Fazal Rabi son of Abdul Hamid seeks his release on bail in case FIR No. 467 dated 06.04.2001 registered under sections 302/324/34 PPC/ 512 Cr.P.C at Police Station Charsadda, District Charsadda.
2. In the instant case, accused petitioner Fazal Rabi has been charged alongwith co-accused for the murder of Gul Khan, as well as causing injuries to Zubair, and ineffective firing upon complainant and his other brother namely Ghufran.
3. Arguments of leaned counsel for the parties heard and record gone through.
4. Perusal of record reveals that the accused petitioner has, though generally, however, directly been charged by name in promptly lodged report for committing the murder of Gul Khan as well as effective firing at Zubair, and ineffective firing upon complainant Sahibzada and eye witness Ghufran. Besides complainant, the occurrence has been witnessed by injured Zubair and other brother of complainant namely Ghufran who, in their statements recorded under section 161 Cr.P.C have duly charged the accused petitioner alongwith other co-accused for commission of the offence. The medical evidence in shape of P.M report of the deceased Gul Khan and medicolegal report of the injured Zubair fully supports the prosecution version.
Motive for the occurrence as disclosed by the complainant to be fight between children of both the parties. Recovery of blood from the spot and blood stained garments of the deceased and injured further supplement the prosecution version. The accused petitioner after the commission of the offence went into hiding and remained absconder for almost 23 years. No doubt, bail to an accused person cannot be refused on the sole ground of abscondance, however, when the prosecution version gets support from other evidence available on record, abscondance can be taken as a circumstance for refusal of bail. Such long unexplained abscondance speaks volume of guilty conscience of accused petitioner and thus, he loses some of his normal rights to seek bail. In case titled Awal Gul Vs Zawar Khan and others (PLD 1985 Supreme Court 402), the august Supreme Court while commenting upon the conduct of an accused who remained absconder for long period of time held as under: "It is also a well-established proposition that unexplained noticeable abscondence disentitles a person to the con cession of bail notwithstanding the merits of the case-the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law)."
5. Learned counsel for petitioner contended that since general role of firing has been attributed to present accused petitioner and three others and prosecution evidence has once been disbelieved as two of the co-accused namely Fazal Nabi and Gul Nabi, similarly charged have been acquitted, therefore, his case has become one of further inquiry as on such ground alone he is entitled to the grant of bail. The august Supreme Court in case titled "Muhammad Abbasi Vs the State and another" (2011 SCM R 1606) while dilating upon the element of further inquiry has held as under: "It is well settled that mere possibility of further inquiry 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 it is not possible to release the accused notwithstanding the fact that he is involved in heinous criminal case, particularly, in the case where the eye-witnesses have duly implicated him with the commission of offence Even otherwise, the co-accused faced rigors of protracted trial and were earlier convicted by the trial court and later, in appeal were acquitted by this court. As discussed above, accused petitioner went into hiding after commission of a heinous offence, proceedings under section 512 Cr.P.0 were conducted against him and he was declared proclaimed offender who surrendered after 23 years, waiting for the acquittal of the co-accused. This court in case titled "Jawad Hussain alias Sohail vs the State" (2021 MLD 1503) while dismissing the bail application of accused charged in the said case held as under: "Apart from above, the accused petitioner instead of surrendering himself preferred to stay in abscondance for over four and a half years and surrendered only after the acquittal of his co- accused Mst. Zari Zadgai. Thus, taking a tentative assessment of the available record, the accused-petitioner is prima facie connected with the commission of the offence which is both serious and heinous and also falls within the prohibitory clause of Section 497, Cr.P.C.
Accordingly, I hold him disentitled to the concession of bail."
6. The august Supreme Court of Pakistan in case titled "Ibrahim Vs Hayat Gul and others" ( 1985 SCMR 382), allowed the appeal filed against the bail granting order passed by the High Court and set aside the bail order which was granted on the ground of the co-accused being acquitted by the trial court. Its relevant portions are reproduced as under: "A learned Single Judge of the High Court however took note of the fact that the co-accused of the respondent having already been acquitted on consideration of the prosecution evidence led in the case, the appellant was entitled to bail on ground of what tie put as further inquiry. He also held that the abscondance of the accused could not be considered as an impediment in this behalf. ------------------------- ------------------------- Learned counsel also tried to show that the respondent couldn't now be found guilty because the eye-witnesses who are to appear against him, as he understood, have already been disbelieved during the trial of his co-accused. In the circumstances of this case it is not necessary to examine at length this aspect as it might prejudice the decision of the trial Court as a result of a trial which the respondent is going to face. Suffice it however to observe that in so far as the believing or not believing a certain piece of evidence is concerned the trial Court would be entitled to form its own opinion. Moreover a possibility of additional evidence examined at the instance of the parties or the Court at the second trial and/or the admission by the accused under section 342 during this trial which might furnish corroboratory /confirmatory /additional material can never be excluded on account of any bar by any law or principle. And to say the least the very factum of abscondance would ordinarily be led as additional evidence against the respondent which item would be in addition to the evidence led during the trial of his co- accused and it cannot at all even be urged that evidence of abscondance is not relevant in cases like the present one."
7. For what has been discussed above, I am not inclined to release the accused petitioner on bail.
The instant bail application, therefore, ids dismissed.