AWAL BADSHAH Versus SATTAR GUL
Feeling aggrieved by an order of the learned Sessions Judge, Karak dated 3‑2‑1991, whereby bail after arrest has been allowed to Sattar Gul, accused‑respondent No.l, Awal Badshah complainant has moved this petition under section 497(5), Cr.P.C. for cancellation of the bail aforesaid.
2. According to the First Information Report, at 10‑00 a.m., on 17‑5‑1989 Sattar Gul, accused‑respondent, alongwith his brothers Hakim Gul, Ilyas Gul and Ghalib Gul had taken positions and fired with their Klashnikovs at Momin Badshah and his brother Mahmood Badshah in the area of village Terri. The complainant escaped unhurt whereas Mahmood Badshah was stated to have been hit by the fire shots of the accused‑respondent herein and Hakim Gul and instantly died on the spot.
3. Sattar Gul accused‑respondent has remained in abscondence from the day of occurrence until his arrest on 28‑1‑1991. His brothers Hakim Gul, Ilyas Gut and Ghalib Gul stood their trial before the learned Sessions Judge but were acquitted under section 265‑K, Cr.P.C. vide his order dated 7‑1‑1991. After his arrest the same learned Sessions Judge granted bail to the accused respondent mainly on the ground that co‑accused of the respondent had already been, acquitted. The learned Sessions Judge, while extending the concession of bail to the accused‑respondent, apart from some unreported judgments of this Court, had placed reliance on Sharif Gul v. Seenar Gul and another (1990 P Cr.LJ 142).
4. Mr. Afridi Khan, learned counsel for the petitioner, seeks cancellation of bail granted to the accused‑respondent on the following grounds:‑‑
(i) That with reference to Mehr Din v. Alamdar Hussain (PLD 1982 Lahore 377) and Atlas Khan v. Muzammullah Khan and another (1989 PCr.LJ 2044) mere acquittal of co‑accused of the accused respondent furnished no ground for granting bail to him; and
(ii) that on the authority of Awal Gul v. Zawar Khan and others (PLD 1985 SC 402) abscondence of the accused‑respondent from 17‑5‑1989 to 28‑1‑1991 disentitled him to the concession of bail.
5. As against this, Mr. Amjad Zia, learned counsel for the State, supported the plea of cancellation of bail raised on behalf of the petitioner.
6. Mr. Muhammad Naseer Khan, learned counsel for the accused respondent, 'on the other hand, relied upon the case‑law referred to in the bail granting order to contend that the accused‑respondent cannot now be found guilty because the eye‑witnesses who appeared against him, have already been disbelieved at the trial of his co‑accused. The learned counsel further submitted that the accused‑respondent has since been challaned to stand his trial, this Court should be reluctant to order cancellation of bail and placed reliance on: (1) Mst. Irshad Begum v. Muhammad Afzal and another (1985 SCMR 1691) and (2) Muhammad Ismail v. Muhammad Rahque and another (PLD 1989 SC 585) in support of the proposition.
7. While seeking guidance from the precedent of Ibrahim cited in the case of Atlas Khan cited above, I have had the occasion to make the following observations:‑
"In the instant case the role of effective firing at the deceased had been attributed to the accused‑respondent. He became fugitive from law and only surrendered after six long years when his co‑accused was acquitted. If absconders are given bail due merely to the acquittal of the co‑accused, then most of the accused would remain fugitives till the disposal of case and would appear only after acquittal of the co- accused which would be tantamount to a premium for abscondence rather than a category of evidence against them."
There are a number of authorities of this Court in which notwithstanding abscondence bail has been granted to the accused whose co- accused had been acquitted in an earlier trial. These authorities, with respect to the learned Judges, run counter to the dictum of the august Supreme Court in a long chain of authorities last of which being that of Ibrahim's case. In the case of Atlas Khan I have borrowed the following observations extensively quoted from Ibrahim's case and reproduced by the Supreme Court in particular:‑
"Suffice it, however, to observe that in so far as the believing or not believing a certain piece of evidence is concerned the Trial Court would be entitled to form its own opinion. Moreover a possibility of additional evidence examined at the instance of the parties or the Court at the second trial and/or the admission by the accused under section 342 during this trial which might furnish corroboratory/confirmatory/additional material can never by excluded on account of any bar by any law or principle. And to say the least the very factum of abscondence would ordinarily be led as additional evidence against the respondent which item would be in addition to the evidence led during the trial of his co‑accused and it cannot at all even be urged that evidence of abscondence is not relevant in cases like the present one."
It was then observed‑‑
"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. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf. However, it is correct that in some rare cases, notwithstanding abscondence the accused might be released on bail, for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. and/or the so called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence."
I would, therefore, reiterate the law that an absconding co‑accused who has been assigned an effective role in case of murder would not be p invariably entitled to bail notwithstanding acquittal of his co‑accused at an earlier trial because it would be tantamount to reward him for his abscondence rather than disentitling him to claim bail.
8. There‑ is however, force in the last submission of the learned counsel for the accused‑respondent that since he has been challaned to stand his trial, bail granted to him may not be interfered with in view of the dictum of the Supreme Court laid down in the precedents of Mst. Irshad Begum and Muhammad Ismail cited above. In the last mentioned case it was propounded‑‑‑
"The first point is not much in context. It is well‑known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. The observation of the learned Judge in the High Court with regard to prejudice, with respect, it is pointed out, would not be correct; because, the. principle underlying the above‑stated practice is directly relatable to the question of prejudice:"
9. For the last mentioned reason above, I am not inclined to interfere with the impugned order allowing bail to the accused‑respondent No.1. This petition is accordingly dismissed.
N.H.Q./1383/P Petition dismissed.