NISAR KHAN vs THE STATE
This matter comes before the Peshawar High Court through a criminal bail petition filed by Nisar Khan seeking post-arrest bail in a case registered under sections 302, 324, 216, 148, 149, and 34 of the Pakistan Penal Code 1860, along with sections 10, 11, and 16 of Ordinance VII of 1979, arising from F.I.R. No. 228 dated 22-4-1993 at Police Station Nowshera Kalan. The core legal question involves whether the petitioner is entitled to post-arrest bail despite being directly charged by eye-witnesses, including an abductee victim, and having remained a proclaimed absconder for over seven years. The Peshawar High Court held that the petitioner is prima facie connected with the heinous offences of murder and abduction based on consistent eye-witness accounts and further noted his prolonged, unexplained abscondence of seven and a half years, coupled with the advanced stage of the trial. Consequently, the court dismissed the bail petition, laying down the principle that prolonged unexplained abscondence disentitles an accused to the concession of bail, particularly when prima facie evidence links them to the crime.
- Does prolonged and unexplained abscondence disentitle an accused person from obtaining post-arrest bail?
- Whether an accused charged with murder and abduction can be granted bail when directly implicated by eye-witnesses and victims during investigation?
- Does the acquittal of a co-accused on different grounds enure to the benefit of another accused who was an absconder?
- Is bail appropriate when the trial has already commenced and material witnesses have been examined?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 216, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 494, Code of Criminal Procedure 1898
' Involved in a case under sections 302/324/216/148/149/34, P.P.C. Read with sections 10, 11 and 16 of Ordinance VII of 1979 vide F.I.R. No,228 dated 22-4-1993 of Police Station Nowshera Kalan, the petitioner Nisar Khan having been refused bail by the Courts below, has come up to this Court.
2. In the occurrence one Mst. Hukam Jana was murdered and one Mst. Zar Sanga was abducted.
Though the complainant Mst. Amrood Jana is not an eye-witness yet another Mst. Gohar Taja is an eye-witness who had been examined on the very day of occurrence. She had categorically charged numerous persons given in the F.I.R. Including the present petitioner. It is a case of formation of unlawful assembly apparently for the prosecution of the object whereof numerous persons had assembled together to commit the murder as well as the abduction. The accused- petitioner is prima facie linked with all the offences as alleged by the eye-witness Mst. Gohar Taja which was further confirmed by another eye-witness cum victim of the case Mst. Zarsanga who was recovered on 25-4-1993 and whose statement under section 161, Cr.P.C. Was recorded the same day wherein, she charged all the persons including the petitioner. It is a case of two eye- witnesses, one being a victim herself.
3. No doubt, one Noor Azam, a co-accused, had been acquitted on 13-10-1996 but such acquittal does not benefit the petitioner because the accused aforesaid was neither involved in murder nor in abduction. It was during abduction that for one night the abductee was made to stay in his house and realising the innocence of Noor Azam, the case was withdrawn under section 494, Cr.P.C.
4. The deceased as well as the complainant are the relatives of the present accused and thus, one cannot expect the petitioner's ignorance about the occurrence yet, despite having been charged, the petitioner since 22-4-1993 remained absconder and was arrested on 18-10-2000, almost seven and a half years after the occurrence. He simply cannot explain such prolonged abscondence and hence must lose certain rights as an absconder.
5. All the remaining accused, directly charged in the F.I.R. As well as in the statements of the eye- witnesses are still absconders for the last eight years and hence this matter can also be not ignored. The trial of the accused has already commenced and two witnesses stand already examined even after the charge framed against the petitioner leaving aside the eight witnesses which were examined during the trial of co-accused Rahimzada. This is not a proper stage for the release of the petitioner technically as well as on merits. The application is hereby dismissed.