Saddique vs State etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

JUDICIAL DEPARTMENT

Cr.M/BA.No...379-P/2016.

JUDGMENT

Date of hearing...18/03/2016.......................................................... Petitioner (Saddique) By Sahibzada Assadullah, Advocate..................... State By Mr.Saeed Khan, Advocate .................................................... Complainant By Mr.M.Arif Khan, Advocate ........................................

QAISER RASHID KHAN, J:- The petitioner stands

charged in case FIR No.548 dated 24.08.2010 under

section 302/324/34 PPC, at Police Station Yar Hussain, District Swabi and seeks bail after being refused the

said concession by the learned ASJ-Lahor, Swabi on

2.Allegations against the accused-petitioner are

that he alongwith his co-accused had fired at Fazl-e-

Malik, son of the complainant Fazal Rehman with their

respective firearms with which he was killed, hence the FIR ibid.

3.The learned counsel for the petitioner though

contended that the accused-petitioner is innocent and

has been falsely implicated in the present case but the main thrust of his arguments was that since the co-

accused with a similar role has been acquitted by the learned trial court on 01.07.2011 under section 265-K Cr.P.C., therefore, the accused-petitioner is entitled to bail on such score as the trial of the accused-petitioner would not have a different outcome.

4.The learned counsel for the complainant on his turn vehemently opposed the bail petition and contended that the accused-petitioner cannot take benefit of the acquittal of his co-accused as he has not faced any trial but rather remained absconder for a considerable long time and it is premature to foresee the outcome of the trial) of the present accused-petitioner.

The learned State counsel also supported the arguments of the learned counsel for the complainant.

Arguments heard and available record perused.

5.As per the FIR, the complainant Fazal Rehman has attributed specific role of firing to the accused- petitioner alongwith his acquitted co-accused Yousaf Khan at his son Fazal-e-Malik with which he was hit and died on the spot whereafter the accused decamped from the spot and the motive was stated to be dispute over passage in the land. The only argument hard pressed by the learned counsel for the accused- petitioner is that since the co-accused Yousaf Khan has been acquitted after facing trial, therefore, the accused-

petitioner is entitled to bail as his trial would not fetch a different result i.e. his conviction.

6.I do not subscribe to the viewpoint of the learned counsel for the petitioner as in the case of co- accused Yousaf Khan, he had duly faced trial and during such proceedings, the complainant had also recorded his statement but did not charge him for the commission of the offence and that is how his application under section 265-K Cr.P.C. was allowed by the learned trial judge resulting in his acquittal. Such argument is not available to the present petitioner as r after being directly charged by the complainant for the murder of his son alongwith his co-accused, he preferred abscondence rather than surrender himself to face trial. It has been held in Ibrahim Vs. Hayat Gul and others reported in (1985 SCMR 382) that:- “It may straightaway be remarked that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have, during his abscondence, been acquitted on consideration of the evidence led by the prosecution.”

Grant of bail to the accused-petitioner at this stage would amount to giving him premium for his long abscondence and would lay a ground for accused charged in like manner cases to remain

absconders and fugitives from law and only surrender when their co-accused are acquitted of the charges and then straightaway apply for the concession of bail. Moreover, after the acquittal of the co-accused under section 265-K Cr.P.C, the prosecution is in no manner estopped to bring home the charge of guilt against the other accused directly charged for murder, as in the present case. Keeping in view all the available circumstances i.e., the accused-petitioner being directly charged, the recovery of empties from the spot, medical evidence r and of course the long abscondence of the accused- petitioner when he was proceeded against under section 512 Cr.P.C., I hold the accused-petitioner prima facie linked with the commission of the offence falling within the prohibitory clause of section 497 Cr.P.C. and thus disentitled to be enlarged on bail.

Resultantly, this petition stands dismissed.

However, the learned trial court is directed to conclude the trial as early as possible.

Before parting with this order, it is directed that any observations recorded in this order, being purely tentative in nature, should in no way prejudice the proceedings before the learned trial

court where the case be decided strictly on its own merits after recording evidence.

Announced. JUDGE Dt.17.03.2016.

(A.K.KHAN)

r