This is a petition under section 497(5), Cr.P.C. For cancellation of bail granted to Khial Mast, accused-respondent by the District Magistrate and was not, cancelled by the learned Addl.
Sessions Judge, Kohat in a case registered against him along with two others under section 302/34, P.P.C. Vide F.I.R. No.08 dated 26-2-1983 of Police Station, Hangu.
2. The case of the prosecution was that on 2fi-2-1983 at 5.30 p.m. Khial Mast, accused-respondent, his son Noor Asghar and his nephew Fazal Muqeem in common concert, opened firing at Issa Khan deceased and his son/complainant-petitioner and another when they were on their way to their field. All the three accused including the accused-respondent absconded soon after the occurrence. The accused-respondent, however, surrendered himself on 16-2-1991 after 8 years before the District Magistrate, Kohat, who released him on bail the same day on the ground of prima facie delay in lodging the report.
3. The petitioner, feeling dissatisfied moved a petition for cancellation of bail of the accused- respondent but to his dismay that too was dismissed by the learned Addl. Sessions Judge on the ground of commencement of the trial.
4. I have heard Mr. M. Tehmash Khan, learned counsel for the petitioner, Mr. Zeshan Ali Kiyani, learned counsel for the accused-respondent and Mr. Muhammad Sardar Khan, Advocate-General for the State.
5. It is submitted on behalf of the petitioner that on account of direct charge in the F.I.R. Of broad daylight occurrence which is fully corroborated by the medical evidence and the statements of prosecution witnesses recorded under sections 161 and 164, Cr.P.C. And abscondence of over 8 years of the accused-respondent, he was not entitled to bail granted by the District Magistrate notwithstanding the examination of two formal witnesses. Additionally, the bail granted to the accused-respondent is sought to be cancelled on the ground that he was suborning the witnesses and an affidavit and statements of some of the witnesses recorded by the S.H.O. Concerned have been annexed with the petition.
6. Mr. Zeshan Ali Kiyani, learned counsel for the accused-respondent, while supporting the impugned orders, has contended that in view of commencement of the trial of the accused- respondent, the discretion by the trial Judge should not be interfered with lightly by this Court.
7. I tend to agree with the contention of the learned counsel for the petitioner that the accused- respondent and his co-accused have been directly charged for the murder of Issa Khan deceased in the F.I.R. Itself which lends ample support not only from the post-mortem report but also from the statements of the P.Ws. Recorded under sections 161 and 164, Cr.P.C. In this view of the matter, the case of the accused-respondent clearly falls within the prohibitory clause of section 497(1), Cr.P.C.
The accused-respondent is also shown to have remained in unexplained abscondence of over 8 years. There is also no denying the fact that the accused-respondent surrendered himself to the District Magistrate on 16-2-1991 who admitted him to bail the same day.
8. The crucial point calling for determination is whether an accused whose case falls within the prohibitory clause of subsection (1) of section 497, Cr.P.C. And who has remained in abscondence for 8 years would be entitled to practically bail before arrest notwithstanding the commencement of the trial in which only two formal witnesses have been examined.
9. I am aware of the practice of the Superior Courts of Pakistan that when a murder case is fixed for hearing `ordinarily' bail applications are not decided on merits and the matter is `often' left to the discretion of the trial Judge. The use of the words `ordinarily' and 'often' in the aforesaid practice receiving judicial recognition in Muhammad Ismail v. Muhammad Rafique and another PLD 1989 Supreme Court 585 is not without significance. The practice alluded to above is thus not of universal application. It may at times be departed from if there are `extraordinary circumstances' and the matter in `exceptional case' may not be left to the trial Judge. In the authority of Muhammad Ismail cited above, the distinguishing features were that in the case of accused- respondent therein the High Court had after tentative assessment of material found that two essential conditions contained in section 497(2), Cr.P.C. Were satisfied and the trial was to shortly.
Commence; noticeable abscondence was not attributed to the accused-respondent therein and; that in those circumstances subsection (2) of section 497, Cr.P.C. Would have operation notwithstanding the aforesaid practice. In the instant case, on the parity of reasoning, it may also be held that subsection (1) of section 497, Cr.P.C. Would have operation notwithstanding the aforesaid practice of the Superior Courts particularly when the accused-respondent had remained fugitive from law for 8 years.
10. After careful consideration of all these circumstances, I am of the view that an accused whose case falls within the prohibitory clause of section 497(1), Cr.P.C. And has remained in abscondence for a noticeable period would not be entitled to bail before arrest notwithstanding the commencement. Of the trial in which only formal witnesses have been examined.
11. I also find force. In the submission of the learned counsel for the petitioner that material to show that the accused-respondent was suborning the witnesses has got semblance of truth in it. There is no counter-affidavit on behalf of the accused-respondent. In this view of the matter also, the accused---respondent is not entitled to bail.
12. For the foregoing reasons, this application is accepted and the bail granted to the accused- respondent Khial Mast is cancelled. He has been taken into custody and remanded to Jail. Before parting it may, however, be added that my observations in the foregoing paragraphs are tentative in nature and should not be taken as determinative of the fate of the case.