' This is a petition under section 497(5), Cr.P.C. By Atlas Khan, petitioner for cancellation of to Mazamullah, respondent, by the learned Sessions Judge, Bannu on 14-9-1988.
2. The prosecution case in brief is that on 14-8-1982, Atlas Khan, complainant, and his son Noorqad Ayaz after offering evening prayers were on their way from the mosque to their house when Mazamullah respondent and his brother Saifullah confronted them duly armed with guns.
Mazamallah fired at the complainant's son hitting him on the lateral side of neck just near the angle of right lower jaw and on the right side of forehead just above the eyebrow. Noorqad Ayaz on receipt of these injuries fell dead. Saifullah's fire hit the complainant causing a grazed wound 4" x 1/2" on the sole side starting from the tip of big toe of the right foot. Thereafter both the accused decamped towards their house. The occurrence is stated to have also been witnessed by P.Ws. Mst.
Gul Haidra daughter of the complainant and Mst. Gul Anara wife of Gul Muhammad.
3. Mazamullah accused-respondent has remained in abscondence right from the evening of occurrence. His brother Saifullah Khan however, was placed on trial but was acquitted on 13-7- 1988. After the acquittal of his co-accused the accused-respondent is stated to have surrendered.
After his arrest the learned Sessions Judge granted him bail mainly on the ground the co-accused of the respondent had already been acquitted. The learned Sessions Judge while extending concession of bail to the accused-respondent placed reliance on Mehr Din v. Alamdar Hussain PLD 1982 Lah. 327 and an unreported judgment of this Court in Criminal Miscellaneous No, 145 of 1982.
4. Mr. Saadullah Khan Miankhel, the learned counsel for the petitioner, vehemently contended that mere acquittal of a co-accused furnished no justification for granting bail to the respondent. He further contended that the learned Sessions Judge seems to have been unnecessarily influenced by the acquittal of the co-accused of the respondent without taking due notice of abscondence of the respondent for over six years.
5. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate-General, besides adopting the arguments of Mr. Saadullah Khan very ably distinguished the case of Mehr Din and maintained that Khushi Muhammad ( P.W.) in that case did not support the prosecution case; Muhammad Yusuf (P.W.) was given up; the statements of Mehr Din and Tufail were full of improvements and contradictions and finally; that there was an unexplained delay of seven/eight hours in reporting the occurrence. In the instant case, the A.A.-G. Argued, there was no such infirmities; that the respondent and the acquitted co-accused-of the respondent were the real nephews of the complainant Atlas Khan and the question of substitution or of the mistaken identity did not arise; that the occurrence had taken place near the house of the complainant and that the report was promptly lodged.
6. Mr. Khawaja Nawaz Khan, the learned counsel for the respondent, on the other hand, argued that the site plan belied the allegations of the prosecution as set up in the F.I.R. In that the complainant and the deceased after offering the prayers should have gone towards north to reach their house but the site plan shows that the deceased was fired to death towards the eastern side. He also placed reliance on Mehr Din's case wherein it had been held that 'there was case-law to the effect that absconsion was not a bar to grant of bail' and further that:- "There were two presumptions in favour of the respondent; the first being the inherent one that every accused is presumed to be innocent unless his guilt is proved and the second that after full- fledged trial, prosecution story was disbelieved by the learned Additional Sessions Judge and all the co-accused had been acquitted including the one, who had caused injuries to the deceased with knife."
7. I have carefully considered the above submission, made by the learned Advocates before me and have gone through the record of the case carefully. The ratio in the case of Mehr Din is that absconder would not be entitled to the grant of bail is not a rule of universal application.
Nonetheless this view of the learned Single Judge seems to have not been approved by the august Supreme Court in Ibrahim v. Hayat Gul 1985 SCMR 382. My Lord Muhammad Afzal Zullah, J. Almost in the similar circumstances repelled the contention that there can yet be exceptional cases in which notwithstanding long ascondence bail might be granted and held:- "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.
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.
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."
8. In Ibrahim's case too, an argument was advanced as has been raised in the case in hand that the respondent cannot now be found guilty because the eyewitnesses who are to appear against him, have already been disbelieved during the trial of his co-accused. This contention did not find favour with their Lordships and it was observed:- "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 rnishorroboratory/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 he 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."
9. In the instant case the role of effective firing at the deceased had been attributed to the accused-respondent. He became fugitive from law and only surrendered after six long years when his co-accused was acquitted. If absconders are given bail due merely to the acquittal of the co- accused, then most of the accused would remain fugitives till the disposal of case and would appear only after acquittal of the co-accused which would be tantamount to a premium for abscondence rather than a category of evidence against them.
10. Respectfully following the dictum of the august Supreme Court in Ibrahim's case I hold that an accused who absconds after the occurrence for noticeable period would not be invariably entitled to bail merely because his co-accused has been acquitted in the case.
11. The upshot of the above discussion is that the name of the respondent does figure in the F.I.R.
The effective role qua the deceased had been specifically attributed to the respondent whereas the role assigned to the acquitted co-accused was one of causing fire-arm injury to the complainant herein on the tip of his toe. The medical evidence supports the version given in the F.I.R. The close relationship between the complainant and the respondent prima facie meets much of the criticism levelled against the P.Ws. The respondent had remained in abscondence for over long six years for which no explanation is forthcoming. The prima facie case at least under section 302, P.P.C. Which falls within the prohibitory clause of subsection (1) of section 497, Cr.P.C. Is made out. In consequence, I accept this petition for cancellation of bail which was illegally granted to the respondent by the learned Sessions Judge, Bannu, and order that the respondent be remanded to custody. Before parting, let me make it clear that the observations made above are tentative and, therefore, the trial Court will decide the case against the respondent on its own merits. .