1. MUHAMMAD AFZAL ZULLAH, J.--This appeal is directed against order dated 11-11-1984 of the Peshawar High Court; whereby Hayat Gul respondent was allowed bail in a case under section 302/307/34, P. P. C.
2. The appellant alongwith several others having been charged with offences of murder and attempt to commit murder in a case registered on 23rd July, 1983, absconded for more than a year. He, it is stated by his learned counsel, surrendered soon after the acquittal of his co-accused who were tried in his absence. After his arrest the learned Sessions Judge refused to grant him bail after due consideration of the question of his abscondence as also the fact that he was directly charged by the deceased person in his dying declaration as the main culprit who shot at him. 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 abscondence of the accused could not be considered as an impediment in this behalf.
3. Leave to appeal was granted on a petition filed by the father oft the deceased for cancellation of bail to examine the effect of abscondence for a long the on concession of bail.
4. Learned counsel for the appellant has contended that the question of abscondenee has not been given due weight in the High Court nor the other factor which weighed with the learned Sessions Judge was noticed in the High Court.
5. In support of the first argument learned counsel for the appellant has relied on Rais Khan v. Said Hanif and another 1979 SCMR 90 which according to him was an identical case. He has also relied on Awal Gul v. Zawar Khan etc. Criminal Appeal No.15-P of 1984, decided on 28th November, 1984; wherein notice has also been taken of the following cases: Rao Qadeer Khan v. The State PLD 1981 SC 93; Ha.Yat Bakhsh and others v. The State PLD 1981 SC 265; and Kh. Azhar Hussain and another v. The State 1983 SCMR 978.
6. Learned counsel for the respondents while accepting that abscondence for a long the has to be taken into account when considering the question of bail in cases covered by the prohibition contained in section 497 (1), Cr.P.C., has contended nevertheless that there can yet be exceptional cases in which notwithstanding long abscondence bail might be allowed. On merits he has contended that the mere fact that the deceased had in his dying declaration charged the appellant of having effectively shot at him, should not have made any difference when the eye- witnesses who including his injured father, the present appellant have not been relied upon in a properly held trial of the co-accused of the respondent.
7. It may straightaway be remarked that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have, during his abscondence, been acquitted on consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf.
8. However it is correct that in some rare cases notwithstanding abscondence the accused might be released on bail, for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C.
9. And/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence.
10. In the present case learned counsel has offered the explanation with regard to the respondent remaining unaware of the case because of his alleged travel abroad before the occurrence. In other words a plea of alibi has been advanced.
11. After hearing the learned counsel on this point in so far as these bail proceedings are concerned there is not enough material to accept this plea as advanced. 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.
12. 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 abscondence 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 abscondence is not relevant in cases like the present one.
13. Another aspect of the order of the High Court needs some observation. The respondent's case was also treated as one of "further inquiry" and that being so it was assumed as if there would be no alternative but to grant him bail without the satisfaction of any other condition. Admittedly it was not a case of further probe during the investigation by the police. The same having concluded the learned Judge did not use the phrase "further inquiry" in that context. Be that as it may it is essential to point out that the concept of "further inquiry" besides being misused in the grant of bail in many cases, the same has not been pressed in service when refusing to grant bail. The relevant provision of section 497 in this behalf reads as follows: "497. When bail may be taken in case of non-Bailable offence.--(1)
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, -as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-Bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided."
14. This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-Bailable offence. It ha: to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that "there are no reasonable grounds for believing that the accused has committed non-Bailable offence". Without such finding by such Officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding. That being so the respondent could not be released on bail on ground of so-called further inquiry under subsection (2) of section 497 , C r. P . C .
15. After hearing the matter at some length we deem it fit to alloy this appeal and to set aside the bail order passed by the High Court. The respondent Hayat Gul shall surrender to the custody of law. If he fails to do so this conduct might then be treated as further proof of his abscondence.
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