1. ' Eid Akbar son of Mir Akbar, accused-respondent, stands charged alongwith his co-accused under section 302/148/149, P. P. C. For the murder of four persons, vide F. I. R. No, 557, dated 11-12-1984 recorded at P. S. Hann. After the commission of the offence, the accused respondent and his co- accused all absconded. Later on, the accused-respondent applied for pre-arrest bail but the same was rejected, vide order, dated 10-3-1985 by the Additional Sessions Judge, Kohat. Thereafter, the accused-respondent applied for bail after arrest but the same was also rejected by the S. D. M., Hangu on 18-3-1985. Again, the accused-respondent applied for bail to the Sessions Court but this time the case file was taken on his own diary by the Sessions Judge, Kohat and granted him bail, vide order, dated 4-7-1985. Door Hassan complainant has filed the present application for the cancellation of to the accused-respondent.
2. I have heard the learned 'counsel for the petitioner and the accused-respondent, and also the State at length and have also gone through the record with their assistance. The main ground of attack of the learned counsel for the petitioner is that the occurrence took place on 11-12-1984 whereafter the accused-respondent went into hiding till 10-3-1985 when be applied for pre-arrest bail. He also contended that the accused-respondent has been directly charged in the first information report for the murder of four persons. The learned counsel also contended that it is a broad daylight occurrence having a strong motive at its back, therefore, the learned Sessions Judge, Kohat was not justified in granting bail to the accused-respondent in the circumstances of the case. The learned counsel for the accused-respondent could not rebut the above contentions of the learned counsel for the petitioner. I have been also shown case law by the learned counsel for the petitioner applicable to the facts of the case in hand. Firstly, he referred to a case reported in Manzur Ah,nad v. Manzur Ahmed and 8 others (1) in which it has been held that opinion of the Investigating Officer is not binding on Court in bail matters-such opinion also not relevant for purpose of determining guilt or otherwise of accused. In the case in hand, it was argued by the learned counsel for the accused-respondent that the Investigating Officer has opined about the innocence of the accused-respondent. Next, the learned cotrnsel for the petitioner cited Mehr Din v.
2. Alamdar Hussain and another (2) wherein it has been held as under : "Bail, grant of-(Murder case)-Accused absconding for a pretty long time, held, disentitled himself to concession of bail, in circumstances."
3. ' In the same authority in another case Far:and Ali and 2 others v. The State (3) it has been been held that conduct of a person in absconding after commission of a crime, can be taken as a circumstantial piece of evidence against him to show his concern in the offence.
4. ' The learned counsel for the accused-respondent argued that the report was lodged after some delay which makes the case of the accused-respondent arguable for the purposes of bail, but the learned counsel for the petitioner met this contention by referring to a case reported in the same authority i. e. Khaqan v. The State (4) which lays down as under : "S. 154.-First information report-Delay--Place of occurrence being 10 miles from police station and occurrence having taken place at 12 noon, no appreciable delay, held, can be said to have occurred in lodging F. I. R. At 1-30 p. m. Even otherwise complainant having
(1) 1972 PCrLJ 1192 (2) PLD 1982 Lah. 327
(3) PLD 1982 Lah. 776 (4) PLD 1982 Lab. 344 had no difficulty in identifying assailants, delay, held further, in consequential."
5. ' The learned counsel for the petitioner then referred to a case reported in Haibat Khan v. Haji Nawaz Khan and another (I) which runs as follows : "Section 497 (5)-Penal Code (XLV of 1860), S. 302/34-Bail, cancellation of-Accused directly charged in F. I. R. For firing at deceased -Accused absconding after commission of crime surrendered to police after more than days-Opinion of Investigating Officer rendering accused innocent, not based on material on record- Grant of bail being not justified, bail cancelled."
6. ' Lastly, the learned counsel for the petitioner laid great stress on a case reported in A wal Gul v.
7. Zawar Khan and others (2) which runs as under :- "In proper cases, even at the trial, ascendance can be treated as a very important piece of evidence (as corroboration of eye-witness) on showing the conduct of the accused. A fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law.
8. Unexplained noticeable abscondence disentitles a person to the concession 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). The explanation that people some time abscond for fear of being killed in retaliation is too wide to be accepted. It will be only in exceptional circumstances that when whole material for each a situation is analysed and apprehension is treated as absolutely well-founded that it might be so treated. Actually (ordinarily) the arrest and custody with the law enforcing agency furnish a better chance of protection than remaining at large and making oneself available always to the adversaries. Bail requesting refused to such accused in circumstances."
3. It is an admitted fact that the occurrence in the case in hand took place at day time at 1600 hours. The accused-respondent has been directly charged in the first infomatioa report and he absconded after the commission of the crime and remained in abscondence for about five months. There is also a strong motive at the back of the crime. Therefore, all these facts coupled with the authorities cited at the Bar, In my opinion, disentitle the accused-respondent from the concession of bail. I, therefore, without going deep into the merits of the case, accept this application, cancel the to the accused-respondent by the learned Sessions Judge, Kohat, vide order dated 4-7-1985. The accused-respondent is present in Court. He is taken into custody and remanded to judicial lock-up as under-trial prisoner.
9. Bail cancelled.
(1) 1985 P Cr. L J 799 (2) PLD 1985 SC 402