' The petitioners, charged for having committed offences, under section 302/ 324/34, P.P.C. Vide F.I.R. No, 280 dated 2-6-1997, registered at Police Station Pishtakahara, District Peshawar, were in the first instance admitted to pre-arrest bail by the Additional Sessions Judge (V), Peshawar, Mr.Muhammad Ayub Khan, by his order, dated 21-9-1998 recorded in B.B.A. No,1155 of 1998 (Fazal Shah etc. v. Ghulam Hussain etc.).
2. Aggrieved, by the said order, Ghulam Hussain respondent No,1 complainant approached this Court for the cancellation of their bail.
3. Bail cancellation petition i,e,, Criminal Miscellaneous/BCA No, 1280 of 1998 (Ghulam Hussain v. The State) was accepted by me vide my detailed order (11 pages) recorded on 17-5-1999 and the bail granted to respondents Nos.1 to 3 was accordingly recalled. All of the respondents-accused were taken into custody and sent to Judicial Lock-up.
4. After their arrest, respondents Nos.1 to 3 applied for bail to Civil Judge/Judicial Magistrate, Peshawar (Ms. Kulsoom Azhar) who by her order, dated 22-5-1999 dismissed their bail petition.
5. Thereafter the petitioners approached the Additional Sessions Judge, Peshawar, Mr. Muhammad Ayub Khan, for the redress of their grievance stating that they were entitled to be released on bail, inter alia, on the grounds that the deceased had himself remained as an absconder and that the medical report is not in line with the prosecution version. It was also contended that the grounds on which bail is granted are quite different from the grounds on which bail before arrest was granted.
It was also urged that the investigation of the case has been completed, therefore, the petitioners were no more required by the Police and hence entitled to bail.
6. The Additional Sessions Judge (V), Peshawar, however, by his order dated 11-6-1999, dismissed their bail petition on the grounds that the petitioners-accused were directly charged in the promptly lodged F.I.R., had remained absconders for sufficient long time and as such, not entitled to be released on bail because, in the circumstances of the case, they were apparently connected with the commission of the crime charged with. The Additional Sessions Judge, was further of the view that "old age", by itself, was not a ground for bail. By holding so the Additional Sessions Judge then dismissed the bail petition, as stated earlier.
7. Hence this petition.
8. Khawaj a Muhammad Khan, Advocate assisted by Mr. Astaghfirullah, Advocate learned counsel for the petitioners, Mr. Tehmash Khan, Advocate learned counsel for respondent No,1 complainant and Kh. Azhar Rashid, learned Assistant Advocate-General for respondent No,2/State present and heard. Record of the case perused carefully.
9. As far as the contention of the learned counsel for the petitioners that the petitioners being of old age are 'entitled to be released on bail is concerned it would be sufficient to remark that this alone is not a ground on which the bail shall have to be granted under all circumstances. Reliance is placed on the following two cases decided by the Hon'ble Supreme Court of Pakistan:---
(1) 1977 Supreme Court (Monthly Review) 27 Present: Muhammad Gut and Muhammad Afzal Cheema, JJ Gul Ahmad---Appellant versus Masam Khan and 3 others----Respondents "(c) Criminal Procedure Code (V of 1898)--- ----Ss. 497 & 498---Bail---Old age---Relevant consideration for grant of bail to persons of old age--- Infirmity---No medical evidence in support of old age of accused---Bail not admissible merely on account of old age.. "
(2)
Present: Karam Elahi Chauhan and Nasim Hasan Shah, JJ Hakim Ali and 3 others---Petitioners versus The State---Respondent "(b) Criminal Procedure Code (V of 1898)--- ----S.497(1), proviso---Petitioner though 70 and 80 years old yet not shown to be sick or infirm--- Concession of bail envisaged in proviso, held not attracted in circumstances."
10. Accordingly I am not inclined to release the petitioners on bail on this ground alone.
11.Beside this the fact that petitioners Nos.1 to 3 had remained fugitive from law for about a year or so, therefore, they have lost some of the normal rights granted by the procedural/substantive law, cannot be lost sight of. On this ground too they can be refused bail. In this respect I am fully supported by the following case decided by an Hon'ble Division Bench of the Supreme Court of Pakistan:--- 1998 Supreme Court (Monthly Review) 190 Present: Ajmal Mian and Nasir Aslam Zahid, JJ Sher Ali alias Sheri---Petitioner versus The State---Respondent
(d) Criminal Procedure Code (V of 1898)--- 497---Bail---Absconder--Fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law...
(e) Criminal Procedure Code (V of 1898)--- ----S.497---Bail---Abscondence of accused--- Effect--- Unexplained noticeable abscondence of accused disentitled him to the concession of bail notwithstanding the merits of the case..
12. The next contention of the learned counsel for the petitioners is that the F.I.R. Was lodged with considerable delay of about one hour and that, therefore, the case has become doubtful, that according to the site-plan, seven (7) empties of .30 bore were recovered from point No,1 whereas the accused were shown to be present at points Nos.2, 3 and 4, a place 10 paces away, that the deceased being a "hardened criminal" was in the. Habit of collecting "Ghunda tax" therefore, he could have been killed by somebody else, is concerned, it would be sufficient to remark here that deep appreciation of evidence, of such a nature, cannot take place at bail stage. In this respect the following case decided by the Hon'ble Supreme Court of Pakistan may be perused:--- 1998 Supreme Court (Monthly Review) 496 Present: Saiduzzaman Siddiqui and Mukhtar Ahmad Junejo, JJ Qadar Mand---Petitioner versus Muhammad Amroze and 4 others---Respondents
(a) Criminal Procedure Code (V of 1898)--- ----S.497---Bail--Appreciation of evidence---Appreciation of evidence cannot take place at bail stage...
(b) Criminal Procedure Code (V of 1898)--- ----S.497---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art. 185(3)--- Cancellation of bail---Evidence on record as collected by police had made out reasonable grounds for believing the accused to be guilty of the offence allegedly committed by them--- Petition for leave to appeal was, therefore, converted into appeal and bail granted to accused by High Court was cancelled in circumstances."
13. It may be noted that in the above-cited case the bail granted by the High Court was withdrawn by the Hon'ble Supreme Court of Pakistan.
14. In the case in hand, a perusal of the F.I.R. Would show that it was promptly lodged vide which the complainant/ respondent No,1 has directly charged the three petitions. 6-accused for having killed his nephew by tiring at him who (deceased) in turn had received 6 injuries out of which five injuries had exit wounds. Besides seven (7) empties and two (2) spent bullets were recovered from the spot.
15. Apparently the prosecution version for the time being is supported by two witnesses.
16. In the circumstances I am of the considered view that prima facie reasonable grounds do exist for believing that the petitioners are connected with the commission of the offence with which they have been charged. Therefore, without dilating upon the merits of the case at this stage, I am of the view that the petitioners are not entitled to concession of bail especially when their case also falls under the prohibitory clause of section 497, Cr.P.C.
17. This bail petition is without any substance and is accordingly dismissed.