Naikam Khan accused, the petitioner herein, was one of the three persons whom were charged for the murder of one Sher Wali as per F.I.R. No.96 dated 19-8-1986 under section 302/307/34, Pakistan Penal Code, Police Station, Latamber, registered on the report of Mst. Gul Mamana, the mother of the deceased.
2. While the petitioner allegedly absconded after the occurrence, his two co-accused Mir Kaim and Muhammad Ali faced their trial and were acquitted b` the learned Sessions Judge, Karak, vide his judgment dated 18-10-1989. The petitioner, however, surrendered on 9-3-1991. He moved an application for his release on bail before the learned Magistrate 1st Class, Karak, who vide order dated 26-3-1991 accepted his application and released him on bail in the sum of Rs.30,000 with two sureties each in the like amount. Mst: Gul Mamana, the complainant, however, successfully questioned the aforementioned order of the learned Magistrate before the learned Sessions Judge, Karak, and consequently the said order was recalled by the learned Sessions Judge, vide his order dated 8-6-1991. Hence the instant petition.
3. I have heard Mian Shakirullah Jan, Advocate, learned counsel for the petitioner and Malik Hamid Saeed, Additional Advocate-General for the State at length and also perused the record of the case with considerable degree of care.
4. It is contended on behalf of the petitioner that the two co-accused of his having already been acquitted, the case of the petitioner is in no manner distinguishable from that of the acquitted accused and as such the abscondence per se would not justify to remain in custody till the decision of his case. In the were of this, it is submitted that although the learned trial Court while acquitting the two co-accused has observed that its judgment will not affect the case of the absconding accused, yet the fact cannot be ignored that the evidence forthcoming against the petitioner is the same that stands disbelieved and there cannot be any possibility of recording a conviction in the case of the petitioner on the part of the trial Court. In such an eventuality, while the learned Sessions Judge has fallen in error to recall a well-reasoned order of bail recorded by the learned Magistrate 1st Class, Karak, the petitioner merits to be released on bail particularly when he is no more required by the Investigating Agency and the challan is ready to be submitted before the trial Court, the learned counsel added.
5. As against this; the -learned Additional Advocate-General, while supporting the impugned order of the learned Sessions Judge, Karak, maintained that the case of the petitioner is certainly distinguishable from that of his co---accused inasmuch as while one of them was given a role of `Lalkara' and the other had allegedly fired ineffectively; the petitioner has been assigned a positive role of effectively firing at the deceased thereby causing his death. He further submitted that his long abscondence for about four years and seven months is yet another distinguishing feature from that of his co-accused who did not evade arrest and faced their trial not too long after the occurrence. The learned counsel thus urged that the petitioner does not deserve to be released on bail.
6. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
7. The thrust of the arguments of the learned counsel for the petitioner is that in a situation when the prosecution evidence is common against both or, as' the case may be, all the accused charged for an offence and stood discarded in an earlier trial of some of the accused; in that event absconding accused arrested' later and answering the charge in a subsequent trial, when raising a plea of bail, the same shall inevitably be accepted and the under-trial accused be released on bail.
8. I am afraid, I cannot subscribe to this proposition, for, laying down such a rule is fraught with consequences which can hardly be called as healthy principles followed in safe dispensation of justice in criminal cases, inasmuch as' the possibility cannot be ruled out that at the latter trial, the same evidence may be presented to or, as the case may be, appraised by, the trial Court in a manner different from earlier trial and entailing a verdict which may just be opposite to the one recorded earlier.
9. In the context of the above, I have no hesitation in holding that no hard and fast rule can be laid down in this behalf and every case shall have to be decided on its own merits and in its own peculiar circumstances. Accordingly, the acquittal of the co-accused in an earlier trial, in its isolation, cannot be made the sole ground for exercising discretion in favour of the co-accused arrested later for the same offence. Rather, for the purpose of releasing him on bail, it will be the material available on the record which, if full-its the requirements, or falls within the ambit of section 497, Cr.P.C. Will furnish a reasonable ground for such an accused person to successfully seek his bail till the conclusion of his trial. In other words, an order of acquittal of the co-accused maybe used as complementary or supplementary to such grounds as are available to an accused under the law for his release on bail but is not by itself sufficient, or constitutes valid ground, to necessarily warrant the release of an absconder on bail.
10. Viewed in the perspective of the above, when I examine the case of the petitioner, I feel that it is a broad daylight occurrence, the petitioner has been directly attributed in the F.I.R. The fatal shot at the deceased and, having remained a fugitive from law for a period of more than four years in waiting, one may say, to see the outcome of the trial of his co-accused, while on one hand distinguishes his case from those of his acquitted co-accused, on the other hand, stands disentitled to successfully press his plea of bail into service. The learned Sessions Judge has thus rightly recalled the bail vide his impugned order which is neither arbitrary nor exceptional and as such does not call for any interference therewith.
11. Resultantly, while maintaining the order of the learned Sessions Judge, I hereby dismiss this petition. The prosecution is, however, directed to submit challan before the trial Court at its earliest and, I hope, that the trial shall conclude as expeditiously as possible.