P L D 2005 Peshawar 98

Before Shah Jehan Khan, J

BASHIR KHAN‑‑‑Petitioner

Versus

THE STATE through Advocate‑General, N.‑W.F.P. Peshawarand another‑‑‑Respondents

Bail Application No.97 of 2005, decided on 21st February 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497, 87 & 204‑‑‑Penal Code (XLV of 1860), Ss. 302, 34,148 & 149‑‑‑Bail, refusal of‑‑‑Accusedhad pressed his bail application on the sole ground of consistency as his co‑accused had already peen allowed bail Trial Court which was not recalled by the HighCourt‑‑‑Complainant had opposed bail on the ground that the case of the accused was distinguishable from the co‑accused due to his noticeable abscondence‑‑‑ Validity‑‑‑Accusedwho was well aware of the charge against him, opted not to surrender before the law for sufficient long time‑‑‑Abscondenceof accused was deliberate and unexplained which had made his case distinguishable from, co‑accused‑‑‑Motive behind occurrence was a political rivalry between accused and complainant‑‑‑Not only unexplained prolonged abscondence of accused for which he was proceeded against under Ss. 87 & 204 Cr.P.C., but the motive was also attributed to the accused which made his case distinguishable from the bailed-out accused‑‑‑Fugitive from the law would lose some of the procedural and substantive rights‑‑‑Bail of co‑accused was not helpful to the accused not only on the ground that unexplained deliberate prolonged abscondence of accused and a direct motive had distinguished his case from co‑accused, but also on the ground that principles for grant and cancellation of bail were altogether different‑‑‑Accused, prima facie, was connected with the commission of the offence and accused did not agitate grant of bail on merits of the prosecution case, but only had agitated the ground of consistency which was not conceivable due to said distinguishable features‑‑‑Bail petition was dismissed with direction trial Court to commence the trial of accused without any further delay.

Inayatullah v. The State PLD 2003 Kar. 416; Ibrahim v. HayatGul and others 1985 SCMR 382; Jan Muhammad v. The State and another 1978 SCMR 287; Muhammad ImranullahKhan v. The State 1995 PCR.LJ167 and Sardar v. The StatePLD 1979 Pesh. 16 ref.

Muhammad Zahoorul Haq for Petitioner.

Muhammad AyazKhan, A.A.‑G. for the State.

M. Mohibullah Kakakhel for theComplainant.

Date of hearing: 21st February 2005.

JUDGMENT

The petitioner was a non‑suited for grant of bail in case F.I.R No.357 dated 4‑8‑2002 undersections 302/34/148/149 P.P.C. registered at Police Station UmarzaiDistrict Charsadda, has moved the instant bail petition.

2. Facts, in brief, are that Alamzeb, the complainant charges the petitioner along with his two sons, namely, Shakeel and Mansoor, Dr. Younas; his son Kamal Nasir, Masood Khan, and Riaz Khan for effective firing at him, for the murder of his companion, namely, Zameer and ineffective firing at Khurshid and Mudassir, his companions.

3. I heard the learned counsel for the petitioner who agitated the concession of bail on the: sole ground of consistency as co-accused of the petitioner has already been allowed bail by the lower Court on 10‑3‑2003 which was not recalled by this Court through an order dated 15‑9‑2003 and relied upon Inayatullahv. The State (PLD 2003 Karachi 416).

4. Learned counsel for the complainant opposed the concession of bail to the petitioner on the ground that the case of the petitioner is distinguishable from his co‑accused due to unexplained noticeable abscondence. Placed reliance on Ibrahim v. Hayat Gul and others (1985 H SCMR 382) Jan Muhammad v. The State and another (1978 SCMR 287).

Muhammad ImranullahKhan v. The State (1995 PCr.L.J 167), Sardar v. The State (PLD 1979 Peshawar 16). Learned D.A.‑G.adopted the arguments of counsel for the complainant.

There are for and against judgments of this Court as well as the august Supreme Court of Pakistan for grant or refusal of bail for a fugitive of law-keeping in view of the facts and circumstances of each case. The case‑law cited at the bar need not be discussed in detail due to distinguishable facts and circumstances of the case.

5. The petitioner was well aware of the charge against him and he opted not to surrender before the law for a sufficient long time. The abscondence is deliberate and unexplained which makes his case distinguishable from his co‑accused. The motive behind the occurrence was intimated to be the political rivalry obviously between the petitioner on one hand and the complainant on the other. Itis is available on record that the petitioner and Alamzeb of the complainant party have got political rivalry. This fact cannot be denied that the petitioner got elected as MPA a number of time as a candidate of ANPfrom the same constituency and also inducted in Provincial Cabinet, as ForestMinister wherefrom in the recent past election Alamzeb(whose brother Khurshid and his companions were fired at) was elected as MPA as the candidate of PPP. The petitioner and his co‑accused except Dr. Younas were also subsequently charged under sections 302/324/148/149/427, P.P.C vide F.I.R No.36 dated 2‑2‑2003,(wherein Ayaz was done to death, AlamzebMPA, Sajjad and Farmanullahsustained bullet injuries) which reflects upon the gravity of motive between the parties. Despite indiscriminate firing through the lethal weapons life of Alamzeb, MPA was saved, however, he along with his three companions received bullet injuries and the vehicle damaged. Not only the unexplained prolonged abscondence of the petitioner for which he proceeded under sections 87 and 204 of the Cr.P.C but the motive is also attributed to the petitioner which makes his case distinguishable from the bailed-out accused. It has been observed by the august Supreme Court of Pakistan in a number of pronouncements that fugitive from law loses some of the procedural and substantive rights. The learned Sessions Judge has elaborately discussed this aspect of the case duly supported through case‑law which need not be repeated to save the time and the petitioner was refused bail through a well‑reasoned detail order.

6. Bail of the co‑accused was not recalled by this Court vide order dated 15‑9‑2003 but the same is not useful for the petitioner not only on the ground that unexplained, deliberate prolong abscondence of the petitioner anda direct motive has distinguished his case from the co‑accused but also on the ground that principles for the grant and cancellation of bail are altogether different. The petitioner is prima facie connected with the commission of the offence and the learned counsel did not agitate the grant of Bailon merits of the prosecution case but only agitated on the ground of consistency which is not conceivable due to the aforementioned distinguishable features.

7. In view of the above, I dismiss this Bail Petition, however, direct that the trialCourt to commence the trial of the petitioner without any further delay and the trial be concluded within four months from the date of commencement of trial.

H.B.T./327/P Petition dismissed.