1. Abdul Nadeem Paracha son of Abdur Rashid Paracha seeks after-arrest bail in case F.I.R. No,345, dated 15-10- 1996 registered with Police Station Sadiqabad, Rawalpindi under sections 302, 148, 149, P.P.C. At the instance of Israr-ul-Haq for murder of Ikram-ul-Haq, Anwar-ul-Haq and Gulfraz Abbasi.
2. The brief facts of the prosecution case as contained in F.I.R. Are that on 15-10-199 6, Malik Ikram-ul-Haq brothel of the complainant was driving Pajero Jeep bearing Registration No,IDD-204, whereas his brother Anwar-ul-Haq was sitting on front seat and Gulfraz Abbasi was sitting in the rear seat and were going to their place of work. The complainant alongwith his brother Iftikhar-ul-Haq and Raja Zafar were following them in Vehicle No,IDB-8606 and when they reached near Al-Malik Hosp ital, Chandni Chowk, Rawalpindi, the accused Nasir Butt armed with Kalashnikov riding on a motocycle driven by Nasir Khan and white colour car driven by Khalid Butt, in which Jahanzeb alias Zaibi armed with Kalashnikov , Shoaib Butt and Abdullah alias Hafiz armed with automatic rifles were sitting alongwith others white colour car driven by Abdul Nadeem Piracha present petitioner in which Abdul Rashid alias Sheeda armed with automati c Rifle was present overtook the Pajero and the petitioner stopped his car in front of Pajero and forced him to stop his Pajero. The complainant also stopped. The accused armed with weapons came out of their vehicles and encircled the Pajero. Nasir Butt from the right front side and Jahanzeb from left front side fired at Ikram-ul-Haq and Anwar-ul-Haq hitting on their different parts of the body . Shoaib Butt accused fired at Gulfraz Abbasi. Thereafter , all the accused continued indiscriminate firing and fled away from the spot in their respective vehicles. The occurrence was witnessed by Iftikharul-Haq, Raja Zafar and Abdul .Majeed, P.Ws. Apart from the complainant.
3. Nasir Butt, Nasir Khan and the present petitioner became absconder while their co-accused Khalid Butt, Shoib Butt, Abdullah, Jahanzeb and Abdur Rashid were arrested and they faced the trial. Jahanzeb co-accused was convicted and sentenced to death by trial Court vide judgment dated 28-5-2001. Khalid Butt, Shoaib Butt, Abdullah and Abdur Rashid were acquitted. Jahan zeb who was on bail also absconderd at the time of announcement of judgment.
4. The petitioner surrendered himself and was arrested on 8-1-2002. He applied for his after arrest bail which was declined by learned Additional Sessions Judge, Rawalpindi vide order dated 20-6-2002. Hence this petition.
5. Learned counsel for the petitioner conten ds that the role attributed to the petitioner is that he was driving a vehicle in which Abdul Rashid, co-accused was sitting who fired at the deceased. Khalid Butt who was driving other car has been acquitted by the trial Court and the role of the petitioner is at par with Khalid Butt, Abdur Rashid who has been attributed fire-arm injuries to the deceased riding in car being driven by the present petitioner was also acquitted. The petitioner after his arrest has been declared innocent, therefore, his case is of further inquiry and he is entitled for concession of bail. He is now in jail without trial as the file of the case has been sent to this Court in Murder Reference, therefore, there is no likelihood for early commencement of the trial against the petitioner and he cannot be kept in judicial lock-up for an indefinite period. About the abscondence of the petitioner it has been argued that bail cannot be declined bail mere on tne basis of abscondence, as he was not arrested by the police intentionally . Reliance has been placed on 1991 SCMR 322 (The State v. Malik Mukhtar Ahmad Awan) and PLD 1996 Kar . 372 (Abdul Rauf v . The State).
6. Conversely , the petition has been oppos ed by learned counsel for the complainant and for the State by placing reliance on 1978 SCMR 287 (Jan Muhammad v. The State and another), PLD 1979 Pesh. 16 (Sardar v. The State), 1985 SCMR 382 (Ibrahim v. Hayat Gul and others). (PLD 1985 SC 402, (Awal Gul v. Zawar Khan and others) PLD 1985 SC 182 (Muhammad Sadiq v . Sadiq) and PLD 1994 SC 172 (Liaqat Ali v. The State).
7. Heard. Record perused.
8. The occurrence took place at 9-15 a.m. On 15-10-1996 and report was lodged at 10-00 a.m. The petitioner is nominated in the F.I.R. He was driving a car alongwith his ed-accused which was stopped by him in front of Pajero in which the deceased were travelling. The petitioner escorted the co-accused in his vehicle from the place of occurrence. He has been attributed active participation in the occurrence and sharing common intention with his co-accused for murder of the deceased. The acquittal of the co-accused is not relevant as the prosecution evidence is to be evaluated independent ly. The petitioner also remained abscond er for 5-1/2 years. Reliance can be placed on 1978 SCMR 287 (Jan Muhammad v. The State and anoth er), wherein it has been held that finding of the Sessions Court in trial against petitioner's father are not relevant in the petitioner's own trial and the quality of the evidence would have to be judged independently of the previous findings. The same principle has been followed in PLD 1979 Pesh. 16 (Sardar v. The State), wherein it has been held that the accused/petitioner remaining out-law after the occurrence for a period of 8 years and his trial to be held independently of the previous trial resulting into acquittal of his co-accused and was held not entitled for concession of bail. In 1985 SCMR 382 (Ibrahim v. Hayat Gul and others), it has been held that the co-accused during his abscondence been acquitted on consideration of evidence led by the prosecution. The factum of abscondence would ordinarily be considered as additional evidence against the accused. In PLD 1985 SC 402 (Awal Khan v. Zawar Gul and others), it has been held that unexplained noticeable abscondence disentitles a person to concession of bail notwithstanding merits of the case and the persons fugitive from the law and the Court, lose some normal rights granted by procedure as well as substantial law , therefore, the petitioner disentitles himself to be released on bail.
9. The contention of the learned counsel that the petitioner was declared innocent by the Investigating Officer or was not arrested by the police is also no ground for grant of bail as such opinion is not based on cogent reasons and it is settled law that the opinion of the Investigating Officer is not binding on the Court as held in PLD 1994 SC 172 (Liaqat Ali v. The State).
10. Nothing has been brought on record to show that the petitioner had ever joined the investigation prior to his present arrest and was not arrested by the police. The petitioner is involved in a heinous offence in which three persons were brutally murdered in day light and three co-accused are still at large, therefore, the instant petition is dismissed having no force.
11. However , as far as contention of the learned counsel that trial has not commenced so fai against the petitioner due to non-availability of the record which has been summoned by this Court in Murder Reference and petition filed by the complainant against acquittal of co-accused is concerned, it is correct that no person can be kept in judicial lock-up for an indefinite period as under-trial prisoner without trial, therefore, the trial Court is directed to proceed with the trial of the petitioner expeditiously and conclude the same within a period of six moths. Office is directed to send back the record of the lower Court immediately which can be summoned through a special messenger for a particular date if and when it would be required by this Court.