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Criminal Miscellaneous No. 566 of 1985, decided on 23rd November, 1985.

‑‑‑ S. 497 (5)‑Penal Code (XLV of 1850), Ss. 302; 148 & 149 Cancellation of bail‑Accused alongwith his cot‑accused allegedly murdering four persons‑Investigating Officer opining about inno cence of accused‑Occurrence taking place in broad daylight--Accused directly charged in F. I. R.‑Accused absconding after com mission of crime and remaining in abscondence for about five months‑Strong motive present at back ‑of crime‑Accused, held. was disentitled to get concession of bail‑High Court. without going deep into merits of case cancelling bail granted to accused by Sessions Court.

Manzur Ahmad v. Manzur Ahmad and 8 others 1972 P Cr. 1, I 1192 ; Mehr Din v. Alamdar Hussain and another P L D 1982 Lah. 327 : Farzand Ali and 2others v. The State‑ P L D I P82 Lah. 776 : Khaqan v. The State P L D 1982 Lah. 344 ; Haibat Khan v. Haji Nawaz Khan and another 1985 P Cr. L J 799 and Awal Gul v. Zawar Khan and others P L D 1985 S C 402 ref.

Abdul Qadir Khattak for Petitioner.

Qazi Talib Mohyuddin for Respondents.

Asghar Ali for the State.

Date of hearing : 23rd November, 1985.

Eid Akbar son of Mir Akbar, accused‑respondent, stands charged alongwith his co‑accused under section 302/148/149, P. P. C. for the murder of four persons, vide F. 1. R. No. 557, dated 11‑12‑1984 recorded at P. S. Hangu. After the commission of the offence, the accused respon dent and his co‑accused all absconded. Later on, the accused‑respondent applied for pre‑arrest bail but the same was rejected, vide order, dated 10‑3‑1985 by the Additional Sessions Judge, Kohat. Thereafter, the accused‑respondent applied for bail after arrest but the same was also rejected by the S. D. M., Hangu on 18‑3‑1985. Again, the accused‑respon dent applied for bail to the Sessions Court but this time the case file was taken on his own diary by the Sessions Judge, Kohat and granted him bail, vide order, dated 4‑7‑1985. Noor Hassan complainant has filed the present application for the cancellation of bail granted to the accused respondent.

2. I have heard the learned 'counsel for the petitioner and the accused‑respondent, and also the State at length and have also gone through the record with their assistance. The main ground of attack of the learned counsel for the petitioner is that the occurrence took place on 11‑11‑1984 whereafter the accused‑respondent went into hiding till 10‑3‑1985 when be applied for pre‑arrest bail. He also contended that the accused‑respon dent has been directly charged in the first information report for the murder of four persons. The learned counsel also contended that it is a broad daylight occurrence having a strong motive at its back, therefore, the learned Sessions Judge, Kohat was not justified in granting bail to the accused‑respondent in the circumstances of the case. The learned counsel for the accused‑respondent could not rebut the above contentions of the learned counsel for the petitioner. I have been also shown case law by the learned counsel for the petitioner applicable to the facts of the case in hand. Firstly, he referred to a case reported in Manzur Ahmad v. Manzur Ahmed and 8 others (1972 P Cr L J 1192) in which it has been held that opinion of the Investigating Officer is not binding on Court in bail matters such opinion also not relevant for purpose of determining guilt or otherwise of accused. In the case in hand, it was argued by the learned counsel for the accused‑respondent that the Investigating Officer has opined about the innocence of the accused‑respondent. Next, the learned counsel for the petitioner cited Mehr Din v. Alamdar Hussain and another (P L D 1982 Lah. 327) wherein it has been held as under :

"Bail, grant of‑(Murder case)‑Accused absconding for a pretty long time, held, disentitled himself to concession of bail, in circumstances."

In the same authority in another case Farzand Ali and 2 others v. The State (P L D 1982 Lah.776) it has been held that conduct of a person in absconding after commission of a crime, can be taken as a circumstantial piece of evidence against him to show his concern in the offence.

The learned counsel for the accused‑respondent argued that the report was lodged after some delay which makes the case of the accused‑respondent arguable for the purposes of bail, but the learned counsel for the petitioner met this contention by referring to a case reported in the same authority i. e. Khaqan v. The State (P L D 1982 Lah. 344) which lays down as under

"S. 154.‑First information report‑Delay‑Place of occurrence being 10 miles from police station and occurrence having taken place at 12 noon, no appreciable delay, held, can be said to have occurred in lodging F. I. R. at 1‑30 p. m. Even otherwise complainant having had no difficulty in identifying assailants, delay, held further, in consequential."

The learned counsel for the petitioner then referred to a case reported in Haibat Khan v. Haji Nawaz Khan and another (1985 P Cr. L J 799 ) which runs as follows :

"Section 497 (5)‑Penal Code (XLV of 1860), S. 302/34‑Bail, cancellation of‑Accused directly charged in F. I. R. for firing at deceased ‑Accused absconding after commission of crime surrendered to police after more than 24 days‑Opinion of Investigating Officer rendering accused innocent, not based on material on record‑‑Grant of bail being not justified, bail cancelled."'

Lastly the learned counsel for the petitioner laid great stress on a case reported in Awal Gul v. Zawar Khan and others (P L D 1985 S C 402) which runs as under :‑

"In proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye‑witness) on showing the conduct of the accused. A fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. Unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of 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 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 each 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. Bail requesting refused to such accused in circumstances."

3. It is an admitted fact that the occurrence in the case in band took place at day time at 1600 hours. The accused‑respondent has been directly charged in the first information report and he absconded after the com mission of the crime and remained in abscondence for about five months. There is also a strong motive at the back of the crime. Therefore, all these facts coupled with the authorities cited at the Bar, In my opinion, dis entitle the accused‑respondent from the concession of bail. I, therefore, without going deep into the merits of the case, accept this application, cancel the bail granted to the accused respondent by the learned Sessions Judge, Kohat, vide order dated 4‑7‑1985. The accused‑respondent is present in Court. He is taken into custody and remanded to judicial lock‑up as under‑trial prisoner.

H. A. K. Bail cancelled.

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