Dilawar vs State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

Cr.M No.606-A of 2014

JUDGMENT

Date of hearing.....................05/12/2014........................................ Petitioner...(Dilawar) by Mr. Abdul Saboor Khan, Advocate...................

Respondent ...(The State) by M/S Muhammad Naeem Abbasi, AAG ........

QALANDAR ALI KHAN, J:- Dilawar,

petitioner, has invoked the jurisdiction of this Court for post arrest bail after failing to secure bail from the trial Court.

2.Accused/petitioner alongwith co-accused, was charged for causing the murder of Mohtabar, brother of injured complainant Akhtar and attempt at his life by effectively firing at him and also for ineffective firing on his father and brother, Ijaz Ahmad in furtherance of their common object vide FIR No.86 dated 20.05.2011 under Sections 302/324/148 and 149 PPC Police Station Pattan, District Kohistan. In the FIR, the

accused/petitioner alongwith co-accused Abdullah and Muhammad Hassan were

specifically attributed the role of attempting at the life of the complainant / respondent No.2, Akhtar, who is not present before the Court as he is reportedly absconder in another case, and causing him firearm injuries, whereas the role of firing and causing the death of brother of complainant, namely, Mohtabar was attributed to co-accused Dosham Khan and Muhammad Geer, while co- accused Taleh Zar and Muhammad Faraz were charged for the role of ineffective firing on the father and brother of the complainant. After registration of the case, the accused/petitioner went into hiding and was therefore declared proclaimed offender vide order dated 28.9.2011.

The co-accused, Taleh Zar and Sarfaraz Ahmad alias Muhammad Faraz approached this Court for post arrest bail, and were granted bail vide order dated 12.09.2014. The remaining co-accused are still at large.

3.The first contention of the learned counsel for the accused/petitioner was that the aforementioned two accused have already been granted post arrest bail by this Court, therefore, the accused/petitioner will also be entitled to the same concession under the principle of consistency. The simple answer to this contention is that principle of consistency will not be applicable to the case of the accused/petitioner, as the co-accused admitted to post arrest bail were charged for ineffective firing, whereas, the accused/petitioner is charged for attempt at the life of the complainant by effectively firing at him and causing firearm injuries. The next contention of the learned counsel for the accused/petitioner that the accused/petitioner has not been charged for the murder of deceased Mohtabar and firearm injuries attributed to the accused/petitioner were on the non-vital part of the body of the injured complainant and further that three persons have been charged for one or at the most to firearm injuries, is also without force as all the accused

named in the promptly lodged FIR have been charged for the offences committed in the furtherance of their common object.

4.Above all, absconsion of the accused for years together, and the fact that the other co- accused are still fugitive from law, would render the accused/petitioner disentitled to the concession of bail, especially when he is charged for the offences falling within the prohibitory clause of section 497 Cr.P.C.

5.The learned counsel for the

accused/petitioner while placing reliance on 1996

SCMR 1693, 2004 YLR 431, 2005 YLR 275,

2008 YLR 1064, 2009 MLD 141 and 2014 YLR 1491, argued that since the accused/petitioner alongwith two others is charged for less than three firearms injuries on the complainant, and only one empty shell of 30 bore pistol has been recovered from the place assigned to him in the site plan, his case for firing on the non-vital part of the body of the complainant would become arguable for the purpose of bail, and his absconsion, though for a

longer period, would not come in his way for release on bail, once his case is found that of further inquiry. To say the least, each and every case has its own peculiar circumstances, and the matter of bail is to be decided while keeping in view circumstances of a particular case. In this case, the conduct of the accused/petitioner, reflected from his prolonged absconsion and also the absconsion of co-accused charged with heinous offences of murder and attempt on the lives of the complainant and others, would hardly leave any room for extending concession of bail to the accused/petitioner.

6.The bail petition is, therefore, dismissed.

Announced. JUDGE Dt.05.12.2014 /*M.S.Awan*/