' Gul Pur and his brother-in-law Issa Khan petitioners, stand arrested in case F.I.R. No,286, dated 23- 3-2002 Police Station Gul Bahar,. Peshawar under sections 302/304, P.P.C. The petitioners have applied for grant of bail under section 497, Cr.P.C. On refusal of the same by the Courts below i,e, Judicial Magistrate and Additional Sessions Judge Peshawar vide their orders, dated 21-6-2002 and 3-7-2002, respectively.
2. A.S.I. Khan Khel Khan, Police Station Gulbahar, Peshawar (complainant in this case) on 25-3-2002 received an information that a person has been shot to death by some unknown assailants in General Bus Stand Peshawar. The A.S.I. Alongwith the police party reached the spot and found a person lying murdered there. Upon Search an Identity Card in the name of Shahi Gul son of Akhtar Gul resident of Malakandher and driving licence etc. Were recovered. After completing necessary formalities at the spot, the- dead body was despatched to Khyber Medical College, Peshawar for post-mortem examination under the escort of Noor Hayat F.C. Subsequently, the dead body was identified to be that of one Shahi Gul son of Akhtar Gul of Malkandher, Peshawar.
3. During the course of investigation Akthar Gul father of the deceased in his statement recorded under section 164, Cr.P.C. On 30-3-2002 implicated the petitioners for the murder of his son and stated that deceased had developed illicit relations with Mst. Shamsud Duha, sister of petitioner No,1 and wife of petitioner No,2 and had eloped with the deceased and in this connection a case is pending for adjudication:
4. Mst. Khial._Bibi (mother) and Noor Muhammad (brother) of the deceased in their statements under section ' 164, ( r.P.C. Recorded on 16-4-2002 stated that at the relevant time they were accompanying the deceased and that the deceased lost his life due to firing, of the petitioners.
5. Sahibzada Riazatul Haq, Advocate for the petitioners 'in support of the bail application contended, inter alia, that the petitioners have not been nominated in the F.I.R.; that petitioners had . No hand in the offence: that supplementary statements of father, -mother and brother of the deceased, recorded after. Considerable delay should not have been made a ground for refusal of bail and that keeping in view the facts' and circumstances of the case petitioners were entitled for the benefit of bail.
6. As against this the learned State counsel assisted by Mr. Jalaluddin Akbar Azam Khan, Advocate for the complainant supported the impugned order and maintained that in view of the material available on the record and abcondence of the petitioners, the concession of bail was rightly refused and the impugned, order warrants no interference of this Court.
7. It needs no reiteration that before releasing the accused on' bail, the' Court is required to apply its mind keeping view the provisions contained in subsection (1) of section 497 and subsection (2) of section 497, Cr.P.C. In its totality and the sine qua non, for releasing the accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non bailable offence as provided in subsections (1) and (2) of section 497, Cr.P.C.
Or to prevent the abuse of the process of. Court or to do justice, keeping in view the particular facts of each case. The bail in the cases of commission of non-bailable offences and particularly falling in the prohibitory clause in subsection (1) pf section 497, Cr.P.C. Is not to be granted as a matter of course, with a simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C.
8. Undoubtedly no one is nominated in the report for the murder of Shahi Gul deceased but the fact cannot be lost sight of that prosecution is in possession of sufficient evidence to .Implicate the petitioners with the commission of crime. The mere fact that names of petitioners are not mentioned in the F.I.R., by itself, cannot be considered a good ground to extend them the concession of bail.
9. The crime in question is alleged to have taken place on 25-3-2002. The petitioners appeared before the police after two/three months of the occurrence and stated that at the relevant time they were in Azad Kashmir in connection with earning livelihood. It is a settled law that fugitive from law loses some of the normal rights granted by the procedural and substantive law and noticeable abscondence disentitles the absconder to the concession of bail, notwithstanding the merits of the case.
10. Most of the submissions made on behalf of the petitioners in support of the application in hand, relate to the merits of the case and cannot be gone into at this stage. It is a settled principle of law that at bail stage the Court has only to see whether the accused was connected with the commission of the crime or not. For that purpose only tentative assessment of evidence is to be made and a deeper appreciation is not called for. At the stage of bail and before recording of evidence in the trial Court, only tentative assessm ent is to be made for the purpose of deciding bail application and it is not permissible to go into the details of the evidence one way or the other because that might prejudice the case of one party or the other.
11. Tht rulings cited by learned counsel for the petitioners are distinguishable and have no bearing on the facts of the present case. Even otherwise case law in a particular case specially in bail matter, has no applicability to the facts of other cases. Therefore, if bail is granted in one criminal case it is not necessary that the same is to be granted in other cases.
12.For the reasons detailed above, finding no substance in this application, I dismiss the same.