Pakistan Case LawAbdur Rehman Versus State
This is a post-arrest bail application filed by the petitioner, Abdur Rehman, in a case involving murder and attempted murder. The core legal question is whether the petitioner is entitled to bail given the direct charge in the FIR, the recovery of incriminating evidence, his prolonged abscondence, and the acquittal of a co-accused. The Court held that the petitioner is prima facie connected to the offence, as he is specifically nominated in the FIR, and the allegations are supported by ocular evidence, medical reports, and forensic analysis of the crime scene and weapon. The Court further held that the acquittal of a co-accused does not automatically entitle an absconding accused to bail, as the evidence against the petitioner must be independently assessed by the trial court. Additionally, the petitioner's unexplained prolonged abscondence weighs against the grant of bail. Consequently, the petition was dismissed. The Court affirmed the principle that the acquittal of a co-accused in a separate trial does not benefit an accused who was not part of those proceedings, as the trial court must independently evaluate evidence recorded in the presence of the accused.
- Does the acquittal of a co-accused in a separate trial automatically entitle an accused to the concession of bail?
- Can an accused who has remained a fugitive from law for a significant period claim entitlement to bail?
- Is evidence recorded in the absence of an accused in a co-accused's trial admissible or relevant for the purpose of granting bail to the accused?
Inam ullah Khan, J .--- Through instant application, the petitioner Abdur Rehman son of Ghulam Hussain seeks post arrest bail in case FIR No.475 dated 18.8.2017, offences under sections 302/324/34 P.P.C of Police Station Paharpur, District D.I.Khan.
2.Briefly stated the facts of case as divulged from the FIR registered on the strength of a murasila, are that on 18.8.2017, at about 10:30 hours, complainant Ghulam Baqir, while present with the dead body of his brother-in-law Bashir Ahmad son of Muhammad Nawaz, reported to the local police at Civil Hospital, Paharpur, to the effect that on the day of occurrence at morning, Bashir Ahmad was riding the motorcycle and he was sitting behind him, while Mumtaz son of Falaksher was driving another motorcycle; they were proceeding to D.I. Khan and at about 07:40 hours, when they reached to the spot, accused Abdur Rehman, equipped with Repeater shotgun and acquitted co-accused Sher Dil son of Hanif, armed with a Kalashnikov, came behind on a Motorcycle CG 125, driven by Sher Dil, while Abdur Rehman (the present petitioner) was sitting behind him; that accused Abdur Rehman made firing upon them with Repeater, as a result thereof, they fell from their motorcycle; that Bashir Ahmad was hit and died on the spot, while he (the complainant) sustained injuries. After commission of the occurrence, the accused fled away. Besides the complainant, the occurrence was stated to have been witnessed by afore-named Mumtaz. Motive for the offence was stated to be a dispute over landed property and pendency of criminal cases with the petitioner. He charged the accused for the commission of offence.
3.Learned counsel for the petitioner contended that the matter was reported with an in ordinate delay and the material available on file do not connect the petitioner with the commission of offence. He further argued that bail could not be declined to the petitioner, merely because of abscondence, when otherwise his case requires further probe into his guilt. The learned counsel vehemently submitted that the co-accused Sher Dil has already been acquitted by the trial Court after facing full-fledged trial and this aspect of the case entitles the petitioner to the concession of bail. The learned counsel relied on the cases reported in 2016 SCMR 676, 2016 SCMR 1593, 2016 SCMR 1520, 2017 SCMR 486, 2022 SCMR 393 and 2024 SCMR 1133.
4.To the contrary, the learned AAG assisted by learned counsel for the complainant contended that the accused/petitioner is directly charged in the FIR for effective role of firing at the deceased with a specific motive. He further submitted that the occurrence took place in a daylight, so no question for false involvement of the petitioner arises. It was further submitted that the FSL report regarding the crime empties collected from the spot and the weapon of offence recovered from the petitioner, duly connects the petitioner with the commission of offence. It was lastly contended that acquittal of co-accused would not entitle the petitioner to the concession of bail in view of the evidence connecting him with the commission of offence. Reliance was placed upon the cases reported in 2022 SCMR 640, 2022 SCMR 849, 2024 SCMR 594, 2022 SCMR 726, 2022 SCMR 267, 2020 SCMR 1198, 2018 PCr.LJ Peshawar 481, 2021 MLD Peshawar D.I.Khan Bench] 202, 2023 PCr.LJ Peshawar (Abbottabad Bench) 1508, 2021 YLR Peshawar (Abbottabad Bench) 2185, 2018 YLR Note 183 (Peshawar [D.I.Khan Bench], 2023 PCr.LJ Note 48 [Peshawar (Bannu Bench)], 2017 MLD 1804 [Gilgit-Baltistan Chief Court and 2020 PLR 1319 [Peshawar (D.I.Khan Bench)].
5.Arguments heard at a considerable length. Record was scanned from cover to cover.
6.Tentative assessment of the record reveals that undoubtedly the accused/petitioner is directly charged for the commission of offence with a specific motive. The occurrence took place in a daylight and the parties having previous motive are duly known to each other, so no question arises with regard to mis-identification of the accused. Moreso, the allegations contained in the FIR are duly supported by the ocular account, site plan, recoveries effected from the spot in the shape of blood and empties and the FSL report in respect of crime empties and weapon of offence. In Jahanzeb Khan's case [1] , it was held that:
"The instant occurrence has taken place in broad daylight whereas the parties are known to each, therefore, there is no chance of mis-identification, which further gives strength to the prosecution case. The locale of injury ascribed to the respondent is fully supported by medical evidence".
In Syed Hamad Raza's case [2] , it was held that:
"The respondent prominently figures in the array of assailants in the crime report with a specific role supported by the witnesses in their statements recorded under section 161 of the Code of Criminal Procedure, 1898; medical evidence, prima facie, confirmed the role assigned to the respondent and, thus, we failed to find any justification for the High Court to extend judicial protection merely on the ground that "he was related to the co-accused or that probability of his false implication as a result of wider net and exaggeration being possible factors constituted mala fide intention and ulterior motive"; such sweeping findings with drastic consequences for the prosecution at the initial stage of the case, that too, structured subjectively on a premise lacking evidential foundations failed to commend our approval".
In Sahaukat Ali's case [3] , it was held that:
"It is settled that in criminal matters. each case has its own peculiar facts and circumstances and the same has to be decided on its own facts. In the present case, the petitioner is specifically nominated in the FIR for causing firearm injury on the head of the deceased and the said injury was spelt out from the medical evidence".
7.So far as the argument of learned counsel for the petitioner regarding acquittal of co-accused Sher Dil by the trial Court is concerned, suffice it to say that the acquittal of co-accused would not benefit the accused/petitioner for the reason that evidence collected by the investigating agency against the present petitioner is yet to be analyzed by the trial Court. In Habibullah's case [4] it was held that:-
"True that in all cases co-accused have been acquitted at an earlier trial held before different courts, but whether acquittal of co-accused would entitle the accused/petitioners for concession of bail, who were arrested subsequently sitting on the fence, while watching the proceedings of their co-accused, who were arrested or surrendered earlier and faced the trial as an under-trial prisoners. Answer is in negative, as evidence recorded in absence of accused/ petitioners in the case of their acquitted co-accused cannot be taken into consideration, neither at bail stage nor during trial. Fate of the case of the accused/petitioners would be decided on the evidence recorded in their presence and believing or disbelieving of evidence is the exclusive domain of trial court, where it will form its own opinion after recording of evidence in presence of the accused/petitioners. It is not necessary that the trial court will come to same conclusion which was arrived at the trial of co-accused".
In this respect, Akbar Said's case [5] can also be referred.
8.Besides above all, the petitioner remained fugitive from law for a sufficient time and no plausible explanation is forthcoming for such a long abscondence. In Raja Fazal-ur-Rehman's case [6] it was held that:
"The conduct of the respondent/accused by remaining fugitive from law further lends support to the prosecution story and particularly at the bail stage when such a conduct is relevant one and to be taken into consideration as when he does not care to be a law abiding person to surrender himself immediately to the law enforcing agencies, if he is not guilty, and did not make himself available to the investigating agency to help it in arriving at a fair conclusion by associating him with the investigation."
In this respect, Zahoor Khan's case [7] can also be referred.
9.At the moment, reasonable grounds do exist to believe that the accused/petitioner is prima facie connected with the commission of offence, which falls within the restrictive clause of Section 497, Cr.P.C., hence, he is not entitled to the concession of bail. Accordingly, this petition, being bereft of merit, is hereby dismissed. Needless to say that the observations in this order are purely tentative which shall not prejudice the trial Court in any manner whatsoever.
JK/128/P Petition dismissed.
Footnotes
[1] Jahanzeb Khan v. Umer Zahid and another (2022 SCMR 726)
[2] Syed Hamad Raza v. The State and others (2022 SCMR 640)
[3] Shaukat Ali and another v. The State through Prosecutor General, Punjab, Lahore and another (2024 SCMR 594)
[4] Habibullah v. Qadir Khan and 2 others (2018 PCr.LJ 481)
[5] Akbar Said v. Moambar and another (2017 PCr.LJ Note 137)
[6] Raja Fazal-ur-Rehman v. Muhammad Afzal and another (2010 SCMR 179)
[7] Zahoor Khan v. Akhter Muhammad and another (2020 SCMR 993)
Judges on this bench
- Inam Ullah Khan21 judgments