2013 P Cr. L J 1284
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD ISHAQUE ---Applicant
Versus
The STATE ---Respondent
Criminal Bail Application No.164 of 2013, decided on 14th May, 2013.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Penal Code (XLV of 1860), S. 302/34 ---Qatl-e-amd, common intention --- Bail,
refusal of --- Lengthy abscondence of 15 years --- Effect --- Accused was apprehended after a
lapse of about 15 years, and his abscondence seemed to be deliberate ---Absc ondence of 15 years
disentitled the accused from concession of bail ---Accused claimed that he was unaware of his
implication for the offence during all the years, however such fact could not be believed as two
of his close relatives (co -accused) faced tria l for the same offence ---Incident was timely
reported ---Name of accused also appeared in the contents of F.I.R. ---Accused was refused bail
accordingly.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Bail---Abscondence ---Effect ---Fugitive from law lost some of his normal rights
available to him in procedural and substantive law.
(c) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Penal Code (XLV of 1860), S. 302/34 ---Qatl-e-amd, common intention ---Bail,
refusal of ---Evidence recorded i n absence of accused as a ground for grant of bail ---Accused
remained absconder while co -accused faced trial and were acquitted ---Plea of accused that
during trial of co -accused, the evidence recorded failed to make out any case against him,
therefore, he should be granted bail on basis of such evidence ---Validity ---Considering evidence
recorded during trial of co -accused for purposes of bail of accused would amount to decision of
the case against the accused even before commencement of his trial ---Such evi dence could not
be considered for purposes of bail of accused ---Accused was refused bail accordingly.
(d) Criminal Procedure Code (V of 1898) ---
----S. 497 --- Bail--- Grounds --- Advance age of accused --- Physical infirmity ---Such grounds
were not considered to be valid grounds for grant of bail in circumstances.
Muhammad Ayub for Applicant.
Amir Hamza Mengal, Deputy Prosecutor -General for th e State.
Noor Ahmed Bangulzai for the Complainant.
Date of hearing: 26th April, 2013.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. ---The applicant Muhammad Ishaque preferred
the instant application with prayer for grant of bail in his favour contending th at he being
innocent, committed no offence, while the F.I.R. failed to assign him any specific role in
commission of the offence. Further, the co -accused Hazoor Bakhsh and Muhammad Arif were
already acquitted of the charge on completion of trial vide judgm ent dated 8th June, 2001 of
Additional Sessions Judge - IV, Quetta therefore, his case being at par with them, and as a rule of
consistency he also deserves to be released on bail. Furthermore, the mentioned facts brought his
case within the ambit of furthe r inquiry. In addition thereto the evidence, on record neither
appealed a prudent mind, nor free from reasonable doubt, therefore, the benefit arising therefrom
need to be exercised in his favour. Furthermore, he being a man of old age, the fact entitled h im
for his release on bail.
2. Pursuant to F.I.R. No.138 of 1998 Police Station Civil Line, Quetta an incident allegedly
happened on 3rd August, 1998 was reported on the same date by one Muhammad Bakhsh,
thereby specially nominated six persons along with some unknown persons, with an allegation
that they (nominated persons) killed his brother namely Abdul Razaq through firearms. Initially
the case was challaned to the extent of Hazoor Bakhsh and Muhammad Arif, apprehended soon
after the occurrence, who on completion of trial acquitted of the charge vide judgment dated 8th
June, 2001. The applicant remained absconder during the intervening period, but apprehended in
recent past, thereby approached the trial Court for his release on bail, but the request was
declined vide order dated 10th April, 2013, hence the instant application.
3. Learned counsel for the applicant contended that there was no eye -witness of the
occasion, nor even the complainant was an eye -witness. Further, no any specific role was
assig ned to him in commission of the act, as only one injury was described to be found on the
body of the deceased. Furthermore, history of previous enmity made the case of further inquiry,
thereby entitled him for grant of bail. The learned counsel further con tended that the,
contradictions appearing in the statement of the complainant with the contents of F.I.R. created
doubt, and benefit whereof to be extended in his favour even at the stage of bail. Furthermore;
his old -age also entitled him for grant of bai l during pendency of trial. It was further contention
of the 1earned counsel that though the applicant described as absconder during all these years,
but in fact was at Quetta having no knowledge about his involvement in any criminal case.
Learned counsel placed reliance on: --
Ehsanullah v. The State 2012 SCMR 1137
Qamar alias Mitho v. The State PLD 2012 SC 222
Nigah Hussain Shah v. The State 2009 PCr.LJ Lah. 1101
4. In reply the learned counsel for the complainant stated that the applicant was specifically
nominated in commission of the offence, while the contents of F.I.R. also describe the motive
behind the act. He referred to: --
Muhammad Sadiq v. Muhammad Arshad 1997 PCr.LJ 866
It was further contention of the learned counsel that the d etails of the case need not to be
considered at the stage of bail, as it would have an effect on merits of the case. Further, the fact
that the applicant remained absconder for a long period had to be taken in account while granting
concession of bail in h is favour. The reliance was made on: --
Ch. Javaid Riaz v. The State 2007 PCr.LJ 1332
The learned counsel further contended that the evidence recorded in absence of an
accused person cannot be used against him, not any finding can be made on its basis . Same was
the case in the instant case; therefore, the fact of acquittal of co -accused would not benefit the
applicant at this stage. Furthermore, as the absence of the applicant was wilful, and he never
surrendered during all these years. Therefore, this fact disentitled him for concession of bail at
this stage. Learned counsel referred to: --
Mst. Mastari v. Noor Nawaz alias Noor Niaz 1999 PCr.LJ 616
Nawshad Khan v. Irshad Khan 2009 YLR 2123
Khial Gul v. The State 2002 PCr.LJ 1054
Jan Muhammad v. The State 1978 SCMR 287
Muhammad Iqbal v. The State 2003 MLD 669
5. Learned Deputy Prosecutor -General stated that the applicant was specifically nominated,
with a specific role, and being declared as proclaimed offender, due to his absence, theref ore, not
entitled to be released on bail in the instant case, which pertains to an offence non -bailable in
nature.
6. The facts as transpired from the papers annexed with the application that the matter was
timely reported, and the name of the applicant appeared in the contents of F.I.R. along with other
persons alleged to be involved in commission of the offence. The F.I.R. was lodged in the year
1998, while two of the nominated persons namely Hazoor Bakhsh and Muhammad Arif were
apprehended, and the tri al commenced to their extent. On finalization there was an order of
acquittal on 8th June, 2001. During course the applicant remained absconder, while apprehended
in the year 2013, after lapse of 15 years. The applicant claimed himself to be resident of th e area,
but asserted his ignorance about pending of criminal case against him, but, he being close
relative of the two of the co -accused persons facing trial, it cannot be believed that he (applicant)
was not in knowledge of the fact during all these years . His absence seemed to be deliberate. The
fact that the applicant remained fugitive from law for about fifteen years disentitled him for
concession of bail in his favour at this stage. Furthermore, it is an established principle that a
fugitive from law l oses some of his normal rights available to him in procedural, and substantive
law due to his own act.
7. It was also case of the applicant that two of the nominated persons already faced trial,
thereby acquitted, during course the evidence recorded fail ed to make out any case against him
(applicant). The argument of the learned counsel do not have the force, for the reasons that the
evidence recorded in absence of an accused person cannot be made basis for recording any order
of conviction or acquittal t o his extent. Further, if the evidence recorded earlier is considered at
this stage, it amounts to decision of the case against the applicant, even before commencement of
trial against him, therefore, the evidence recorded earlier is out of consideration a t this stage.
8. The applicant also prayed for his release on bail being an elderly person. In view of the
narrated facts this ground is not available to him. Even otherwise the plea of being a man of
advance age, and physically infirmed is not considered to be a valid ground for grant of bail, an
established principle.
9. In view of the above discussion there is no need to go into merits of the case, the
unexplained absence of the applicant from the legal process for a period of fifteen years,
disentitled him for grant of bail in his favour at this stage, resultantly the instant application is
hereby dismissed.
The observations made hereinabove are tentative in nature, thus shall have no bearings on
findings of the trial Court.
MWA/50/Q Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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