Pre-arrest bail granted to Mian Sarfraz Gul in a double murder case by Sessions Judge, Charsadda arising out of F.I.R. No. 273 dated 1-7-1988 of Police Station Shabqadar is sought, through this application, to be cancelled by Mian Tahir Farid.
2. A flash-back on the original occurrence would reveal that Muhammad Ghani, a complainant injured in this very occurrence was going to Peshawar along with Mian Farid Gul and Mian Touhid Gul and another Muhammad in a motorcar which was being driven by Mian Farid Gul. On Matta Road when they reached near Kochi Baba, a motorcar in sky blue colour came from behind.
Muhammad Israr was identified to be the driver thereof while Mian Sarfraz Gul (the respondent) and Mian Ijaz Gul of Abazai were the other inmates duly armed with Klashnikovs. While overtaking the car of the complainant party, both Mian Sarfraz Gul and Ijaz Gul opened fire with which Mian Farid Gul and Mian Touhid Gul died on the spot while Muhammad Ghani complainant got injured.
Previous blood feud supported by F.I.Rs to that effect, reinforced by the recent Election enmity was stated to be the motive.
3. So for as the prima facie case is concerned, the present respondent is directly and by name charged with others for encounter in which two lives had been taken without any provocation on their part on the spot. The charge is supported by two eye-witnesses out of whom the complainant is injured as well. The medical report also supports the case coupled with motive as well as the prolonged abscondence of the respondent Mian Sarfraz Gul. On merits, no case is made for pre- arrest bail. No mala fides in bringing about the charge were either alleged before the Court of Session or before this Court and hence under normal circumstances it was not a fit case for grant of pre-arrest bail.
4. The learned Sessions Judge has granted bail on medical grounds, as the respondent suffered from a disease known as polycythaemis rubra vera where red blood corpuscles acquire a tendency towards abnormal increase. When asked if' how long the respondent has been suffering for from this disease, Mian Fasihul Mulk, the learned counsel for the accused/respondent replied that it was since 1970. It is quite interesting to note that since 1970 the respondent has been conducting as a normal man and attending to his day-today affairs. It is only after the present occurrence that the disease became prominent the reason whereof by the Foreign Specialists is said to be stress and over-smoking. Rather in one report E.C. Garden Smith was even not sure that the respondent suffered from polycythaemia rubra vera. All that appeared to have come in picture during the prolonged abscondence in a double murder case where the son of the accused/respondent was directly charged along with him. It is also quite conspicuous that the respondent appeared before the Law Enforcing Agencies only when the original trial got concluded and resulted into acquittal. Such facts of claiming exemption with reference to the peculiar circumstances of the present case where the mala fides rather appears to be on part of the accused/respondent.
5. No doubt this Court in Kiramatullah v. The State 1992 PCr.LJ 392 had held that abscondence would not operate as bar in grant of bail to an accused but the word used in that ruling is the "absolute bar", to which also I respectfully agree but do not extend the benefit thereof in the instant case and in peculiar circumstances. Moreover, in that case the accused was a minor of thirteen years and had come for bail after arrest.
6. This very principle of abscondence was further elaborated in Gul Afzal v. State by this Court PLD 1992 Pesh. 125 where it was observed that unexplained abscondence, which in the present case is also for a prolonged period of more than five years, "bespeaks of a conduct rather a misconduct of the accused". It was further observed that the duration and type of the abscondence also matters in the circumstances of each case. In the instant case; I hold that it is a case of prolonged abscondence where the respondent has been waiting for the conclusion of one trial and most probably acquittal as well. The disease that he is suffering from, is now become a part of his biology since 1970, and it is nowhere opined that it cannot be treated in jail. I such state o affairs, the extension of extraordinary concession was unwarranted, the consideration for bail after arrest being altogether different, of course.
7. This application is, therefore, accepted and the pre-arrest bail already granted to the respondent Mian Sarfraz Gul by the Court of Session at Charsadda is recalled. He be taken into custody and be produced before the Ilaqa Magistrate on 17-1-1994.
The above are the reasons for my short order dated 15-1-1994 whereby the bail was so cancelled.