AWAL GUL vs ZAWAR KHAN AND arHERss

1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave of this Court is directed against the order dated 11-2-1984 of the Peshawar High Court ; whereby the respondents No, 1-6 were allowed bail in a case of double murder as also attempted murder-two victims were killed and two were injured.

2. Leave to appeal was granted to examine the question of abscondence by the accused on their right to seek concession of bail-all the respondents seem to have absconded some for a short time, others for long periods of time. One of respondents Ajab Gul is stated to have committed another murder during his abscondence. Two of the accused (not respondents) are, it is stated, still absconding.

3. ' The facts of the case as summarised by the High Court for purpose of bail are that : "Zawar Khan and seven others are charged under section 302/307/148/ 149, P. P. C. In the report lodged by Shindi Gul in Police Station Gurguri District Karak on 9-3-1983 at 5.00 p. m. According to the report the occurrence took place at 3.30 p. m. When the complainant accompanied by his father Khani Gul, his uncle Zameer Gul and his brother Sanab Gul went to the Baithak, of Ajab Gul accused in the village and demanded his loan from Sahib Gul who was sitting there. At that time in the Baithak of Ajab Gul, Zawar Khan, Iftikhar Ahmad, Sanam Gul, Ajab Gul, Qadir Khan, Hukam Khan accused and Naboot Shah and Ghani Khan (absconders) were also sitting. All of them were duly armed. The accused (and the absconding accused) felt annoyed over the demand of loan made by the complainant from Sahib Gul. When the complainant party left the Baithak of Ajab Gul, they were called upon by Ajab Gul and the other accused to stop whereupon they fired at indiscriminately by Qadir Khan, Bakhat Khan (Noor Khan), Hukam Khan, Zawar Khan, Ajab Gul, Iftikhar Ahmad, Ghani Khan and Sanam Gul. With the fire shots of the accused, the complainant and his mother Mst. Zari Khela were injured whereas Sanab Gul and Zameer Gul were killed. The motive mentioned in the I-. I. R. Is the existence of blood feud between the parties. Out of the eight accused, Ghani Khan and Naboot Shah are still absconders. Qadir Khan and Ajab Gul were allowed prearrest bail but later on their bail was not confirmed by the learned Sessions Judge. Zawar Khan surrendered to the police on 11-6-1983 and the learned counsel states that he surrendered because his pre-arrest bail was also not confirmed. Hukam Khan and Sanam Gul were arrested on 13-3-1983. During the investigation two empties of '303 bore and two empties of 7 mm were recovered from the spot. From the house search of Hukam Khan accused a '303 rifle was recovered on 13-3-1983. Similarly, from the house search of Sanam Gill accused another '303 rifle was recovered on the same date. Both the rifles were forwarded for the opinion of the Arms Expert along with the empties recovered from the spot. The opinion of the Arms Expert revealed that the crime empties of '303 bore have not been fired from the rifles mentioned above. One 7 mm rifle was taken into possession by the Investigating Officer on 26-6-1983 which was produced by Ajab Gul accused. This rifle along with the two 7 mm crime empties was also forwarded to the Arms Expert for opinion. But his opinion is in the negative." ' learned Judge in the High Court noted several points to come to the conclusion that it is a case of blood feud wherein witnesses are interested--the fact that some of them are natural and injured was ignored ; and, that the question whether all the accused participated in the firing and if so with what intention object needed further inquiry-unless the eye-witnesses account is rejected outright these aspects are well-known in the case ; and lastly, that specific roles have not been attributed in so far as the injuries to the four victims are concerned with respect it has been assumed though wrongly, that such a circumstance even in a case where injured-natural eye-witness charged all the accused of firing, entitles them to bail."

4. Unfortunately it has not been noticed in the High Court that all the accused in this case absconded.

5. It has also been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing the conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions also this question has been duly highlighted. They are Rais Khan v. Said Hanif and another (1), Rao Qadeer Khan v. The State (2), Hayat Bakhsh and others v. The State (3) and Kit. Azhar Hussain and another v. The State (4). It is now well

(1) 1979 SCM R 90 (2) PLD 1981 SC 93

(3) PLD 1981 SC 265 (4) 1983 SCM R 978 established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits o the case-the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law The explanation of the learned counsel for the respondents that people some time abscond for fear of being killed in retaliation is too wide to be accepted. It will be only in exceptional circumstances that when whole material for such a situation is analysed and apprehension is treated as absolutely well-founded that it might be so treated. Actually (ordinarily) the arrest and custody with the law enforcing agency furnish a better chance of protection than remaining at large and making oneself available always to the adversaries. It is also no defence in the present proceedings that two of the respondents surrendered themselves for bail before arrest. They did so after an abscondence of about three months.

6. ' After careful consideration of all the circumstances we are of the view that release on bail of the respondents was against law and principle except of Saman Gul and Hukam Khan, whose period of abscondence is negligible in view of the possibility that in the circumstances of the case (when all had absconded) the police might also, have become slack in effecting the arrest immediately.

7. ' The bail granted to the other four respondents namely Zawar Khan, Iftikhar Ahmad, Qadar Khan and Ajab Gul is accordingly cancelled. They shall surrender to the custody or law. If they do not, this act might be noticed against them as adverse conduct at the trial.