' MUHAMMAD YUNUS SURAKHVI, ACTG. C.J.--- This appeal has been directed against the judgment and order passed by the Shariat Court on 28-6-2001, whereby the order passed by the District Court of Criminal Jurisdiction, Bhimber on 29-9-2000 was upheld and the appellant's prayer for his release on bail was refused.
2. The necessary facts, giving rise to the present appeal, precisely stated, .Are that on 8-9-1993 at about 9 p.m. The complainant and Sanaullah alias Muhammad Amin, Mehndi Khan and Shabeer Hussain were going to their homes at Bharwal (Pakistan) while boarding on a pick-up No,KE- 0390/K which was being driven by Sabir Hussain. The moment they reached near Hazari Toll Post, their pick-up became slow because of the speed breakers. In the light of pick-up, they saw the accused persons namely, Shahbaz, Khawar, Nadeem, Jamshed, Shahid Shah and Javed Alam, accused-appellant (with whose bail application we are dealing with), armed and sitting in their two cars. Shehbaz, Khawar, Shahid Shah and Jamshed were armed with Kalashnikovs while Nadeem was armed with a .12 bore gun whereas the accused-appellant, Javed Alam, was having a .222 bore rifle with him. Shahbaz accused, by taking aim at the persons sitting in the pick-up, opened the first burst of Kalashnikov which injured Sanaullah Khan. On account of speed breakers, the speed of pick-up became more slow and the complainant and Mehndi Khan came out of the vehicle and took shelter behind a culvert. Shahid Shah and Jamshed with their Kalashnikovs while Nadeem with his .:12 bore rifle started firing indiscriminately. On account of firing of all the accused persons, Shabeer Hussain and Sabir Hussain, driver of the pick-up, were also injured. Sanaullah Khan, an injured person, breathed his last at the place of occurrence. The accused fled away from the scene of occurrence and before running away from the spot snatched .7 mm licensed gun of Sanaullah and took the same alongwith them.
3. The motive behind the occurrence is stated to be a dispute over a piece of land between Shahbaz and others and Sanaullah Khan. The occurrence is stated to have been witnessed apart from the complainant by Mehndi Khan, Shabeer Hussain and Sabir Hussain. On the report lodged against the accused persons, a case under sections 307, 147, 148, 149, 427 and 34, A.P.C. Read with sections 5/15, Islamic Penal- Laws Enforcement Act and under section 17(3) of the Offences Against Property (Enforcement of Hudood) Act, 1985 was registered. After the necessary investigation, the police produced the challan on 11-12-1993 against the accused Khawar Mehmood. Jamshed, Nadeem and Shahid Shah, whereas the accused Javed Alam, accused-appellant, was shown in the calendar of challan as an absconder and vide order of the Court dated 27-12-1993 he was proceeded under section 512, Cr.P.C. Ultimately the accused-appellant was arrested on 6-4-1998 and the supplementary challan against him was produced in the Court of competent jurisdiction on 2-5-1998. The accused-appellant on 6-3-2000 moved an application for his release on bail before the trial Court which was dismissed on 29-9-2000. This order of refusal of bail by the trial Court was assailed by the accused-appellant before the Shariat Court and the Shariat Court also concurred with the view taken by the District Court of Criminal Jurisdiction and dismissed the revision petition filed by the accused-appellant vide its order, dated 28-6-2001. It is the aforesaid order of the Shariat Court passed on 28-6-2001 which is the subject-matter of present appeal.
4. In support of appeal it was vehemently contended by Mr. Abdul Majid Mallick the learned counsel for the appellant, that his client was enroped in a criminal case on the charge of murder on account of enmity. The accused-appellant was arrested in another criminal case in Gujrat and remained in judicial lock-up at Gujrat (Pakistan). Ultimately the accused-appellant was acquitted by the Lahore High Court and thereafter having been arrested in the instant case, he applied for his bail before the trial Court but the same was refused. The Shariat Court also dismissed the revision petition filed by the accused-appellant. The learned counsel contended that the accused- appellant has been involved merely on the basis of suspicion. The prosecution so far has produced Sabir Hussain, the driver of the pick-up in which the murder took place. The alleged eye-witness of prosecution has declined to identify and involve the accused-appellant. The trial Court thus, according to the learned counsel, rejected the application of the appellant on merely conjectural grounds. The learned counsel also contended that in the circumstances of the case the accused- appellant could not have been declared as an absconder while proceeding against him under sections 512, 87 and 88, Cr.P.C. The learned counsel pressed into service the point that the alleged recovery of weapon of offence .222 bore gun was not recovered from the appellant. On the basis of recovery of aforesaid gun, a case was registered against the appellant at Police Station Jalalpur Jattan, Gujrat. The trial Court convicted the appellant on the charge of recovery of unlicensed gun, but the order of his conviction was set aside by the Lahore High Court. The learned counsel also contended that the appellant was not attributed any injury on the person of deceased or the witnesses, therefore, there was no credible evidence regarding the vicarious liability of the appellant in the alleged occurrence.
5. On the other hand Ch. Muhammad Yunus Arvi, the learned counsel for the complainant and Sardar Abdul Razik Khan, the learned Additional Advocate-General, appearing on behalf of the State, strongly opposed the release of accused-appellant on bail. They submitted that the accused-appellant is prima facie connected with the commission of offence alleged. The accused alongwith other accused duly named in the F.I.R. Were armed with deadly weapons and in pursuance of their common object, they fired indiscriminately on the complainant party and on account of their firing one person was killed and the others were seriously injured. The prosecution story, according to the learned counsel, is corroborated by the fact that on the body of deceased during the post-mortem 27 injuries of fire-arm were found and 85 firing shots were found on the pick-up which was under the use of complainant party.
6. The accused-appellant soon after the occurrence remained absconded for a period of four and half years, however, his explanation is that on 6-4-1998 he was arrested by Gujrat police and ultimately acquitted by the Lahore High Court but the important question to be taken note of is that the accused-appellant could not justify his absence or absconsion from 8-9-1993 to 24-1-1996, i,e, for a period of two years and four months during which he. Did not hand over himself to the police nor he surrendered before the Court. The argument advanced by the accused-appellant that he was not aware of the case registered against him cannot be accepted in this age of fast communication.
7. So far as the contention of the learned counsel for the appellant is concerned that the driver witness has not identified the accused-appellant, cannot be gone into deeply at this stage of bail.
There are other various factors which prima facie connect the accused with The commission of offence alleged by the prosecution. Apart from the other grounds mentioned above, the accused- appellant is also not entitled for his release on bail for the reason that he has been absconded for a- pretty long time. An offender who after committing the offence remains absconded is normally deprived of all the legal facilities including his release on bail. Our aforesaid view is supported by cases of this Court titled Alam Zaib v. Haji Muhammad Ramzan and another 2000 M LD 1718 and Nasru1lah Khan v. Khawar Ashraf and others Criminal Appeal No,19 of 1995 decided on 26-6-1995.
8. The point raised by the learned counsel for the appellant that recovery of .222 bore gun is also doubtful and has not been made at the instance of accused can also not be looked into at this stage as at the stage of bail only a tentative assessment of the evidence has to C be made and one has not to dive deep into the evidence of the prosecution.
' In the light of what has been stated above, finding no force in this appeal, the same stands dismissed.