' Muhammad Subhan petitioner is one of the accused persons involved in case F.I.R. No,36, dated 27-4-1993 registered at Police Station Shah Salim, District Karak under sections 302/324/148/149, P.P.C. At the instance of complainant Khawaja Ahmad Khan, regarding an occurrence in which Mir Payo Khan was shot dead by the tiring of Saifullah Khan accused and complainant and Muhammad Rasool Khan sustained fire-arm injuries attributed to co-accused Nabi Sarwar, Noor Sali Khan and Raqibullah respectively. Three of the co-accused, it is stated, are still absconding.
The petitioner has been assigned the role of ineffective firing.
2. The prosecution case in brief is that on the day_ of occurrence i,e, 27-4-1993 complainant, Muhammad Rasool Khan, Mir Payo Khan, Fazal Subhan, Muhammad Ayaz and Afsar Khan were engaged in cutting wheat crops in their flews in Lachi Wali in the limits of Behad Jarcy, Karak when at about 12-45 hours Saifullah, Azizullah, Noor Sali Khan, Ali Khan, Rqibullah, Nabi Sarwar and Muhammad Subhan duly armed reached there and started firing at the complainant-party on account of which Mir Payo Khan was hit and died at the spot with the firing of co-accused Saifullah.
The complainant and Muhammad Rasool Khan also received injuries in the turmoil by the firing of Nabi Sarwar, Noor Sali Khan and Raqibullah. The existence of blood feud between the two families was Mated to be the motive leading to the tragedy. The complainant and his companions were alleged to have witnessed
3. The petitioner has applied for grant of bail before this Court through instant Application No,268 of 2002 on refusal of the same by the learned Courts below.
4. Mr. Safirullah Khan, learned counsel for the petitioner, in support of the bail plea, contended that there is nothing on the file to connect the petitioner with the crime in question and that abscondence alone, in absence of corroborative evidence, is meaningless and in no way implicate the petitioner with the guilt. Additionally, he reiterated that in view of the role assigned to the petitioner a case for grant of bail has been made out within the contemplation of section 497, Cr.P.C. Reliance was placed on Mehmood Akhtar v. The State 1995 SCM R 310, Basharat Hussain v.
Ghulam Hussain 1978 SCM R 358 and Haji Punhal v. The State PLD 2002 Kar.
99.
5. Mr. Jamil Qamar, learned State's counsel assisted by Haji M. Zahir Shah, Advocate, for the complainant, opposed the bail application and submitted that the discretion has been properly exercised by the Courts below and bail has been declined for valid reasons. Reliance was placed on Mst. Barkat Bibi v. Gulzar 1979 SCM R 65, Kunawar v. The State 1981 SCM R 1092, Awal Khali v. Zawar Khan PLD 1985 SC 402.
6. Having heard the arguments of the learned ocunsel for the parties in the light of the material on record I find that prima facie the petitioner is connected to the crime in question and the issue of vicarious liability can be considered at the bail granting stage provided the material placed on the file justifies the same. Muhammad Rasheed v. The State 1979 SCM R 92.
It is true that as per allegations contended in the F.I.R. The petitioner figures as one of the accused persons charged for ineffective firing and main role of firing has been attributed to Saifullah co- accused but it is equally true that there is material on file to connect the petitioner with the guilt. In the site plan prepared at the instance of eyewitnesses, the presence of the petitioner is shown at Point No,11, 13 empties of 7.62 bore have been recovered from this point which prima facie shows complicity of the petitioner in the guilt. Adverting to the question of abscondence, I 'find that the occurrence having taken place on 27-4-1993, the petitioner was arrested on 6-1-2000 from District Lakki Marwat. The petitioner remained absconder for sufficient long time. It is not denied that fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. The following observations were made in Awal Gul v. Zawar Khan PLD 1985 SC 402:-- "Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also been ignored that in proper case, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing the conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions also this question has been duly highlighted. ' They are Rais Khan v. Said Hanif and another 1979 SCM R 90, Rao Qadeer Khan v. The State PLD 1981 SC 93, Hayat Bakhsh and others v.
The State PLD 1981 SC 265 and Kh.Azhar Hussian and another v. The ' Satate 1983 SCM R 978. It is now well-established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition That unexplained noticeable abscondence disentitles a person to the concession of bail not withstnading the merits of the case. The principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law)."
7. Having found that at this stage there is ample evidence against the petitioner on the record to suggest that there are reasonable grounds to believe that the petitioner is guilty of the offence covered by the prohibitory clause of section 497(1), Cr.P.C., the petitioner does not deserve bail. The request of the petitioner is declined and bail is refused.
8. The observations made above are tentative in nature and the learned trial Judge shall decide the case with open mind on the basis of the material available before him.
9. I had refused bail to the petitioner on 14-6-2002 for reasons to be recorded later. Above are the detailed reasons for the same.