Through instant application (Criminal Miscellaneous No. 1169 of 2002) under section 497, Cr.P.C.
Khawaja Noor son of Yaar Gul, petitioner seeks post-arrest bail. The petitioner is one of the accused persons involved in case F.I.R: No.637, dated 31-10-2000 Police Station Thall, for offences under sections 302/324/34, Pakistan Penal Code.
2. The prosecution story in brief is, that on the day of occurrence i.e. 31-10-2000 complainant Mumtala Khan accompanied by his uncle Eid Gul (deceased) and Attaur Rehman's and Gul Maunawar P.Ws., had gone to Thall Bazar to. Make purchases. Saeedullah Khan, Allah Din and petitioner Khawaja Noor met them in the Bazar. Thereafter at the instigation of Saeedullah, Allah Din and petitioner Khawaja Noor took out pistols and resorted to firing at the complainant party, as a result of which Eid Gul was hit and died there and then. The motive behind the occurrence was stated to be long-standing enmity between the parties. The matter was immediately reported to the S.H.O., Police Station Thall at about 9-15 a.m. Who happened to be on a ' Gasht' duty in the Bazar.
3. The petitioner was arrested on 13-8-2002. An application was moved on his behalf in the Court of Sessions Judge, Hangu for grant of bail which was declined vide order, dated 14-9-2002.
4. Messrs Assadullah Chamkani and Asif Nawaz Khan, Advocates for the petitioner, vehemently contended that exqept the bare allegations in the F.I.R. There is no other evidence on record to implicate the petitioner with the guilt; that for single shot two persons have been charged and it would be determined at the stage of trial after recording of evidence, as to whose shot proved fatal and resulted in the murder of Eid Gul deceased, and that medical evidence coupled with the site plan falsify the entire prosecution case. They relied on Inayatullah Khan v. The State (PLJ 1996 PCr.LJ 1548), Zafar Hayat v. The State (1995 SCMR 896), The State v. Muhammad Sharif and others (1995 SCMR 635), Muhammad Nawaz etc. v. The State (1981 PCr.LJ 1232) and Naila v. The State (PLD 1981 Kar. 45).
5. Conversely, Malik Muhammad Akhtar, Advocate learned State Counsel assisted by Mr. Sher Nawaz Khattak, Advocate learned counsel for the complainant, opposed the bail application and asserted with force that prosecution is in possession of sufficient incriminating material to associate the petitioner with the guilt and that in view of noticeable abscondence the petitioner is not entitled for the concession of bail. The learned counsel also contended that challan against the petitioner has already been submitted in Court and the trial, is likely to commence in near future. In support of the submissions reliance was placed on the cases reported as The State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322), Nadeem v. The State (PLD 1996 Karachi 490), Abdur Rauf v.
The State (PLD 1996 Karachi 372), Gul Hassan alias Hassan and another v. The State (2001 PCr.LJ 1491) and Khial Gul and another v. The State and another (2002 PCr.LJ 1054 (Peshawar)).
6. It will be observed that a Court, while considering the matter of bail application is required to take a decision, on the basis of the material available at the time on record, whether there are reasonable grounds to believe that accused is involved in the crime. Broadly speaking the condition laid down in subsection (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or lead to show that accused is not guilty of the offence with which he is charged.
7. Before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsections (1) and (2) of section 497, Cr.P.C. In its totality and the sine qua non for releasing an 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 case of commission of a non-bailable offence and particularly falling in the prohibitory clause in subsection (1) of section 497, Cr.P.C. Is not to be granted as a matter of course, with the 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. In the instant case the petitioner stands specifically charged in the promptly lodged report for the murder of Eid Gul deceased. The medical evidence and witnesses on the spot fully support the charge. By virtue of provisions contained in section 34, P.P.C. Each person is liable for the act done in furtherance of common intention of all, as if it was done by each one of them alone. The mere fact that one entry wound was found on the corps of the deceased whereas two persons have been nominated in the F.I.R. For firing, cannot be held a good ground for release of the petitioner on bail. The occurrence having taken place on 31-10-2000, the petitioner was arrested on 13-8-2002.
He remained absconder for about two years. It is not denied that fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law as held in Awal Gul v.
Zawar Khan and others (PLD 1985 SC 402), Raees Khan v. Said Hanif and another (1979 SCMR 90) and Qadeer Khan v. The State (PLD 1981 SC 93).
9. In the bail matters, an authority of one case is hardly helpful to another case because each case has its own peculiar circumstances. Therefore, I am not inclined to discuss the case-law cited on behalf of the petitioner in detail. It is trite law of criminal administration of justice that judgments in criminal cases are confined to the facts of a particular case and are not be treated as precedent until and unless the facts of two cases are similar, which are very seldom.
10. After hearing learned counsel for the parties in the light of the material on file, I am of the view that no case is made out for interference with the discretionary order passed by learned Sessions Judge, Hangu refusing bail to the petitioner. There is I sufficient material on record to connect the petitioner with the murder of Eid Gul deceased and prima facie the petitioner has not succeeded in making out a case for his admission to bail. The application fails which is hereby dismissed and bail is refused.