' This is a petition for cancellation of bail granted to Imtiaz alias Papache, accused-respondent No,1, by the learned Additional Sessions Judge, Swabi vide his order dated 20-6-1992 in case F.I.R. No,183 dated 7-4-1992 of Police Station Kalu Khan registered under section 337-D read with section 34, P.P.C.
2. The prosecution case, briefly stated, is that on 7-4-1992 at 11-00 a.m., while the petitioner was going to "Arhat" accompanied by his co-villager Safarash Khan, accused-respondent No, 1 who was accompanied by his brother Israr, the absconding co-accused of the former, caught hold of the petitioner and both the accused started belabouring him with stick blows. In consequence, the petitioner sustained as many as six injuries of which one was an incised wound size 2" x 1/2" surrounding the upper end root of the left ear.
3. The accused-respondent was admitted to bail by the learned Additional Sessions Judge on the grounds; firstly, that injury No,1 belies the version of the petitioner furnished by him in the F.I.R. In that stick blows could have caused an incised wound and, secondly, that the injuries sustained by the petitioner squarely fall under section 337-A (iii) of the Pakistan Penal Code which provides punishment with imprisonment for seven years as "Tazir" and "Arsh" equivalent to ten per cent. Of Diyat which does not fall within the prohibitory clause of section 497(1), Cr.P.C.
4. Mr. Muhammad Ashraf Khan Gadoon, learned counsel for the petitioner, submitted that the learned Additional Sessions Judge has fallen into an error to hold that the accused-respondent had prima fade committed an offence punishable under section 337-A(iii) of the Pakistan Penal Code. According to him, the accused-respondent had committed an offence punishable under section 337-D of the Pakistan Penal Code which is punishable with imprisonment which may extend to ten years as "Tazir" and thus falls within the prohibitory clause of section 497(1), Cr.P.C. He also contended that the accused-respondent had remained in abscondence from 7-4-1992 to 22- 5-1992 and was thus not entitled to claim the concession of bail.
5. Malik Hamid Saeed, learned Additional Advocate-General, has not supported the plea for cancellation of bail allowed to the accused-respondent and submitted that the order of the learned Additional Sessions Judge was in conformity with guiding principle enunciated by the Superior Courts for grant or refusal of bail pending trial.
6. Mr. Muhammad Quresh Khan, learned counsel for the accused-respondent, contends that the accused-respondent was at worst liable under sections 337-F(ii) and (iii) of the P.P.C. Which are punishable with imprisonment for three years and five years respectively which do not fall under the prohibitory clause of section 497(1), Cr.P.C. The learned counsel then contended that the rule is not absolute that a fugitive from law should under no circumstances be allowed bail and relied upon the latest dictum of the Supreme Court reported as The State v. Malik Mukhtar Ahmad Awan 1991 SCM R 322.
7. It would be for the trial Judge to determine, after recording evidence, as to which offence under the newly added sections of the Pakistan Penal Code the petitioner has committed. Prima facie, however, the petitioner is not shown to have committed any offence which falls within the prohibitory clause of section 497(1), Cr.P.C. The proposition is now well-settled 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 or an 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 as to establish that in reality it did not amount to abscondence.
8. In the circumstances narrated above, there are not reasonable grounds for believing that the accused-respondent has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt. In this view of the matter, it appears to be a case of further inquiry qua the accused-respondent within the contemplation of subsection (2) of section 497, Cr.P.C. The allegations of abscondence would not be a bar to the grant of bail to the accused-respondent.
This petition being without substance is dismissed.