' JAWAID NAWAZ KHAN GANDAPUR, J.---Briefly stated, the facts of the case are that on 10-11-1995 Zaibullah complainant reported to the police that on that very day, at about 16-30 hours, he alongwith his two sons namely, Tareenullah and Mustafa and one Damsaz son of Mumtaz was on his way to Village Kotka Said Ali when in the meantime accused Khanzada and Wazir Khan sons of Zaheer-ud-Din, Karam s/o Khanzada (on bail) and the petitioners, duly armed with lethal weapons started firing at them near the lands owned by Darey Shah. In the process the accused killed one of the sons of the complainant namely Tareenullah whereas P.W. Damsaz was seriously injured.
2. On the basis of the complainant's report F.I.R. No,177 was registered in Police Station Tajori, Tehsil and District Lakki Marwat, under section 302/ 324/148/149, P.P.C. Read with section 13 Arms Ordinance, against the aforementioned assailants/accused on the same day at about 20-30 hours.
3. After having failed to get bail from the Special Judge, Lakki (Shahid Naseem Khan), the petitioners have now come to this Court for the redress of their grievance and have prayed that they be granted bail as they are innocent and falsely charged.
4. Mr. Muhammad Karim Anjam Qasooria, Advocate learned counsel for the petitioners, Mr. Dost Muhammad Khan, Advocate learned counsel for the complainant and Syed Saeed Hassan Sherazi, learned Assistant Advocate-General for the State present and heard. We have also gone through the record of the case carefully with their assistance.
5. The learned counsel for the petitioners submitted that in this case three co-accused have already been granted bail, therefore, keeping in view the golden principle of consistency in granting bail, the petitioners also deserved to be enlarged on bail not as a matter of grace but as a matter of right. He further contended that the occurrence had taken place at about 16-30 hours whereas the report was lodged at about 20-30 hours. i,e,, after a delay of four hours which has not been explained plausibly, that in the circumstances, the prosecution case against the petitioners has become highly doubtful making the same as that of further enquiry.
6. On the other hand, the teamed counsel for the complainant submitted that the case was registered on 10-11-1995 vide F.I.R. No,177 and that the petitioners managed to get pre-arrest interim bail from the Special Court which was fixed for arguments on 27-1-1997. He further stated that it was indeed quite strange that the petitioners chose not to appear on the date fixed. Resultantly the concession of pre-arrest interim bail had to be recalled. He further submitted that thereafter both the petitioners went into hiding and remained fugitives from law for a long period of two years. He stated that Nawab petitioner was, however, arrested on 14-11-1997 when the police raided his house. An unlicensed Kalashnikov was also recovered from his possession. According to him the other accused/petitioner, Momin Khan, was arrested on 15-11-1997 during the course of "Nakabandi" which was held by police party of post Gambila, at Adda Gambila. He submitted that it is an admitted fact that both the accused had remained fugitives from law for a considerable long time (two years) and that, therefore, they were not entitled to be released on bail even on this score.
7. In support of his contention he placed reliance on case "Khushi Muhammad v. Rab Nawaz and 3 others" reported as 1996 SCM R 172 wherein it was held:-- "Accused had escaped from the custody and was rearrested after more than 1/1-2 years---Such act by itself was sufficient to refuse the exercise of discretion by Court in favour of accused--In such circumstances it was not necessary to enter into the merits of the case or to make any observation on it and, therefore, no prejudice could be caused during trial---Accused could not get the benefit of the third proviso of section 497(1), Cr.P.C. By calculating the statutory period of two years by adding the intermittent periods caused by his illegal and unlawful act---Bail granted to accused by High Court was cancelled in circumstances."
8. The learned counsel further contended *that a few days before his murder the deceased, a handsome boy of tender age, had also lodged a report against the petitioners and others in Police Station, Naurang, under section 506, P.P.C. Vide F.L.R. No,465 dated 7-11-1995 which fully establishes the motive for which he was killed by the petitioners.
9. The learned counsel further submitted that even on merits, the petitioners had no case inasmuch as six empties of .303 bore were recovered from point No,5, wherefrom accused Nawab had allegedly fired at the deceased. He, however, admitted that it was true that no empty of the Kalashnikov was recovered from Point No,6, wherefrom accused Momin has been alleged to have fired at the deceased and the injured P.W. Damsaz Khan. According to him the petitioners were prima facie connected with the commission of the offence and, therefore, not entitled to be bailed out.
10. Without dilating upon the merits of the case at this stage and keeping in view the dictum laid down by the Supreme Court of Pakistan , in case mentioned in para.7 above, we are of the view that since thepetitioners are, prima facie, connected with the commission of offence charged with, and had remained fugitive from law for more than two years, therefore, they do not deserve to be enlarged on bail.
11. This petition is without any substance and is accordingly rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.