Naseeb Ullah Khan Vs The State

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IN THE PESHAWAR HIGH COURT,

BANNUBENCH

(Judicial Department)

Cr.Misc:BA No.98-B/2024

Naseeb Ullah Khan and another v The State etc.

ORDER

Date of hearing 01.04.2024

For petitioners: Mr. Farooq Khan Sokari Advocate For respondents: Respondent #4 in person

For State: Mr. Muhammad Asghar Khan Ahmadzai, A.A.G.

Dr. Khurshid lqbal, J.- l. Whether the postponement or adjoumment of a trial under section 344 Cr.P.C and the consequential release of the accused facing trial on bail due to the abscondence of the complainant-who is nominated as an accused in a cross version and/or any other case---ran serve as a decisive fr ground for the grant of bail under section 497 Cr.P.C to a proclaimed offender/co-accused subsequently arrested? This question arises in the bail petition at hand. As a discussion on merit could only proceed if the answer is replied in the negative, therefore, I would address it in the first instance.

2.Before delving into that, it is imperative to sketch out the pertinent facts of the case. The complainant Zakir Ullah alias Munir Shah has accused Mamtali ICran, Allah Jan, Syed Alam alias Khan, and Nasib Ullah Khan of murdering his brother Rahmat Shah and inflicting firearm injuries on him, Eida Khan alias Ghoot, and Manza Pir. Similarly, injured Sher Wali, belonging to the accused party, reported a cross version ofthe incident. He accused Surat Khan, Munir Shah, (Ghafoor Zaman) (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal

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and Muhammad Anwar fiom the complainant party of effectively attempting to murder him and his cousin Allah Mir Khan.

3.Subsequently, accused Allah Jan and Syed Alam alias Khan were arrested and denied bail upto this Court, whereas, co-accused Mamtali Khan and Nasib Ullah Khaa (the present petitioners) went into hiding. Likewise, the complainant Zakir Ullah alias Munir Shah, being nominated as accused in the cross version, absconded. The arrested accused were indicted, where the prosecution examined all witnesses except the complainant Zakir Ullah alias Munir Shah, as he was absconding. By its order dated 29.11.2023, the trial Court proceeded to postpone the trial for a six months period as per the provisions of section 344 Cr.P.C. Additionally, the accused facing trial were released on bail, while the present petitioners were declared proclaimed offenders.

4.Later, the present petitioners Naseeb Ullah Khan and Mamtali Khan were arrested and denied bail by the trial Court. Now, they have moved this Court, seeking post arrest bail for being confined in case FIR No.36, dated 01.02.2023, under sections 1021324134 PPC of Police Station Baka Khel, District Beurnu.

5.The rnain thrust of the arguments of the leamed counsel for the petitioners is that since the complainant is absconding and for this very reason, the co-accused have been released on bail by virtue of the aforementioned order, daled 29.11.2023, therefore, the petitioners, too, deserve bail as the complainant is still absconding.

6.Heard. Record perused

7.'fhe concept ofbail hinges on ensuring that the liberty of an innocont person is not curtailed unless and until proven otherwise through due process of law. Central 10 this matter is section 497 Cr.P.C, which unequivocally states that a person accused of a non-bailable offence shall not be released on bail ifthere are 'reasonable grounds' to believe that he has (Chafoor Zaman) (S.B) Hon'ble Mr. Justice Dr. Khurshid lqbal

committed an offence punishable with death, imprisonment for life, or imprisonment for ten years. It ensues that in the absence of 'reasonable grounds', but with 'suffrcient grounds' for further inquiry into his guilt, the accused shall be entitled to bail. Pertinently, the term 'reasonable grounds' connotes legally valid justifications substantiated by factual evidence capable of convincing a judicial mind as to the guilt of the accused. These grounds, however, must be rational, logical, and grounded in credible evidence rather than being speculative or unfounded. Similarly, the phrase'further inquiry' refers to a theoretical and investigative assessment aimed at casting doubt qua the culpability of the accused. Reliance, for instance, can well be placed on Salman Mushtas v. State (2024 SCMR 14) and Fahad Hussain v. State (2023 SCMR 364)

8.In this context, the scope of section 497 Cr.P.C is limited to determination as to whether, upon a tentative assessment of the record, there exist reasonable grounds or sufficient grounds, as aforesaid, qua the guilt of the accused. Should the former be the case, bail shall not be granted to the accused. However, if the latter is manifest, bail shall be k granted.

9.As pressed time and again by the leamed counsel for the petitioners, it is imperative to take into consideration the effect of section 344 Cr.P.C in bail matters brought under section 497 CI.P.C. This provision, undoubtedly, establishes a significant link with section 497 Cr.P.C. It stipulates that if there exists a reasonable cause, notably the absence of a witness, to postpone the commencement of, or adjoum, an inquiry or trial, the court is empowered to do so and may remand the accused to custody. The explanation accompanying this section is pivotal in understanding the concept of 'remanding the accused to custody'. It reads as follows:

Explanation-Reasonable cause for remand: If sufficient evidence has been

(Ghafoor Zaman) (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal

obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

10.The decision to remand the accused to custody indicates the existence of sufficient evidence on record and the potential for obtaining further evidence through the remand. However, by necessary implication, the contrary would be correct that if the court finds that sufficient evidence has not been obtained or that no further evidence being collected is anticipated, it may grant bail to the accused. This is why section 497 Cr.P.C envisages that when any person accused of a non-bailable offence is arrested or detained without a warrant by the offrcer-in-charge of a police station, or appears or is brought before the court, he may be granted bail.

11.A combined reading of sections 344 and 497 Cr.P.C elucidates that the former can only be invoked if the conditions laid down therein are met. Those primarily entail the absence of a witness or any other reasonable cause. Consequently, the court must ascertain that no fr-uther evidence is anticipated and that there is no sufficient evidence to reasonably connect the accused with the alleged offence. Should these circumstances indeed prevail, the court may consider the plea for the grant of bail. Moreover, the provisions of section 344 Cr.P.C cannot be stretched at this stage, as it is within the domain of the trial Court to determine, at the appropriate stage, whether the trial should be postponed or adjoumed? It is also the prerogative of the trial Court to decide, based on the evidence on record, whether the accused should be remanded or released on bail? Since such decisions can only be made after a thorough appreciation of the evidence, this Court, seized of the matter under section 497 Cr .P .C , would refrain from delving into that aspect.

(Ghafoor Zaman) (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal

12.Notably, the release of co-accused on bail cannot be interpreted as indicating that it occurred solely because the trial Court found no sufficient evidence or did not anticipate the collection of further evidence. The reason is twofold. Firstly, there is yet another condition for the grant of bail, which is 'any other reasonable cause', upon which, perhaps, no comment can be made, as the same falls within the domain ofthe trial Court. The least warranted to say in order to properly attend to the contention is that when the ocular account was not recorded owing to the absconcion of the complainant, then, of course, the accused facing trial could not have been kept in jail for indefinite period. Secondly, the evidence was recorded in absence of the petitioners, which cannot be taken into consideration for or against them, neither at the bail stage, nor during the trial, as their case must be looked into on its own merits, and based on the evidence recorded in their presence.

13.Above all, the accused, who have been indicted, were denied bail upto this Court on the basis of same set of evidence. While the role attributed to the present petitioners is identical, their release on bail would result in rendering of conflicting views on the same set of evidence. Therefore, it becomes imperative to maintain consistency.

14.Based on the aforementioned rationale, this Court opines that the mere fact of the complainant, who is nominated as an accused in the cross version or any other case, being absconding, or the lack of prospect for his appearance as a prosecution witness before the trial Court, does not automatically warrant the gant of bail to the subsequently arrested co-accused within the purview of section 497 Cr.P.C, and in view of limited scope of this provision, the Court is duty bound to conduct a tentative assessment of the record and independently form an opinion as to the grant or refusal of bail. Accordingly, the question formulated is answered in the negative.

(Ghafoor Zaman) (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal

n 15. Delving into the merits, undoubtedly, every cross version case does not necessarily make the case of an accused person one of further inquiry. The Court in such cases can resort to, and not precluded from, making tentative assessment of material produced to form an opinion as to whether a case of frrrther inquiry is made out or not. Thus, while tentatively assessing the record, it transpires that the petitioners stand directly charged in a promptly lodged FIR. The occurrence took place in broad daylight and the parties were previously known to each other. Therefore, the possibility of misidentification is out of the question. The prosecution has come up with direct ocular testimony, further supported by the recovery of bloodstained earth and 10 crime empties of 7 .62mm bore from the scene of the crime. Notably, the bloodstains and the crime empties were subsequently sent to the FSL. The reports confirmed that the bloodstains belonged to human blood, and the crime empties had been fired from different 7.62mm bore weapons, suggesting the involvement of more than one assailant in the crime. Medical evidence also supports the prosecution version as regards the nature, locale, number, and impact of the injuries on the bodies of the deceased and the injured.

16.As for the no objection raised by the injured Manza Pir qua the grant of bail to the petitioners, suffice it to say that he was merely a passerby. In the absence of a valid compromise between the accused and the complainant party, no credence can be given to such plea.

17.The tentative assessment of the record prima facie links the petitioners with the commission of the offence, which falls within the barring provision of section 497 CI.P.C. Therefore, the petitioners are not found entitled to the grant ofbail. Consequently, this petition is denied Announced

JU

if ,r.*6firy' (Ghafoor Zaman) (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal ,rph 2,