' This is an application for the bail of Muhammad Aslam Khan who is facing trial under sections 302 and 307 read with section 34, P.P.C. Vide F.I.R. No, 114 registered at Police Station Tajori, District Bannu.
2. Facts of the case briefly stated are that on 21-9-1987 at 9-45 hours, Mst. Zulaikha, first wife of the petitioner, lodged a report (F.I.R. No,114) at the Police Station according to which on the eventful day her stepfather Ghulam Rasool was with her having joined her 14/15 days earlier. She had been married to the petitioner some 10 years back but the petitioner had contracted a second marriage 1-1/2 years ago because they were issueless due to which her and the petitioner's relation had fallen out and that the petitioner used to give her the threats of divorcing her. In this connection the Maulvees had effected a comprimise in the terms that the petitioner would not divorce her and would treat her well. It is alleged that on the morning of 21-9-1987 at about 7-00 a.m. The petitioner came to her house and told Ghulam Rasool, her stepfather, that he was being summoned by one Raees Khan upon which Ghulam Rasool went out and after some time returned and told the complainant that Raees Khan wanted her to vacate the house to which the deceased replied that since the complainant had not been divorced, therefore, they would not vacate the house on which the petitioner volunteered to divorce her there and then. It is further alleged that afterwards the petitioner again summoned the deceased outside the house which was followed by noise which attracted her out of the house where she saw that the petitioner and his co-accused Races Khan, Misal Khan and Sard Ali Khan were belabouring Ghulam Rasool with kicks and blows. When she wanted to affect separation she was also beaten and that afterwards the petitioner gave dagger blows to Ghulam Rasool who was injured and expired on the spot.
3. S. Zafar Abbas Zaidi, the learned counsel for the petitioner contended that even if the petitioner's implication is accepted, it cannot be considered in disregard of the circumstances set up in F.I.R.
No, 113 wherein Mst. Akhto Jan was hit with the fireshot of Mst. Zulaikha, the complainant herein, who intended to shoot the petitioner and that thus the petitioner's case becomes arguable being of further inquiry as to which of the party was aggressor. He further submitted the learned Additional Sessions Judge has unduly stretched the alleged abscondence of the petitioner to disentitle him to the concession of bail in disregard of the material available before him. In this regard, the learned counsel referred to the case diary dated 28-1-1988 and maintained that the delay in surrender of the petitioner to the police had occasioned due to the refusal of his superiors to grant him leave.
The learned counsel thus urged that in the circumstances it could not be held that the petitioner had intentionally remained fugitive from law it could be said that there was unexplained abscondence to the discredit of the petitioner. In this context, reliance was placed on Ghulam Akbar Shah v. The State 1988 SCMR 1093, wherein the learned counsel for the petitioner had brought to the notice of their Lordships of the Supreme Court a letter dated 26-3-1988 from the Officiating Commanding Officer to Safdar Hussain co-accused to show that the latter was not absconding but was in fact not being permitted by the higher officials to attend the Court as they recorded him to be innocence.
4. Mr. Hamesh Gul Khan, Advocate, appearing on behalf of the State, has opposed that bail of the petitioner and submitted that the case of Ghulam Akbar Shah cited at the Bar was distinguishable in that in the statement of the petitioner herein recorded on 2-2-1988 he has himself admitted that he had been granted leave for one month and fifteen days with effect from 23-8-1987 and that even after 21-9-1987 when the occurrence had taken place, he had fifteen days to his credit and thus he could have easily surrendered to the police. The learned counsel for the State, therefore, submits that having not surrendered to the police, the ascendance attributed to the petitioner would onerate against him in claiming the concession of bail in this case.
5. The learned counsel for the petitioner has himself referred to the statement of the accused which he had made on 2-2-1988 to the Investigating Officer. From the perusal of the statement it transpired that the petitioner had still to his credit leave of fifteen days or so after the occurrence and having not surrendered to the police would be deemed to have remained in ascendance till some more material is made available to show that he was on leave for a month as suggested by the learned counsel for the petitioner.
6. For the foregoing reasons, the petitioner seems to be disentitled to the concession of bail due to his aforesaid ascendance. His application for bail is, therefore, rejected.