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CR Misc BA No 379 P 2016

The Peshawar High Court dismissed the bail petition of the accused-petitioner Saddique, who was charged with murder and attempted murder in a case dating back to 2010. The court found that the petitioner had absconded and was directly implicated in the crime, while the acquittal of a co-accused did not entitle him to bail. The trial court was directed to expedite the trial proceedings without prejudice to the case's merits.

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13 views5 pages

CR Misc BA No 379 P 2016

The Peshawar High Court dismissed the bail petition of the accused-petitioner Saddique, who was charged with murder and attempted murder in a case dating back to 2010. The court found that the petitioner had absconded and was directly implicated in the crime, while the acquittal of a co-accused did not entitle him to bail. The trial court was directed to expedite the trial proceedings without prejudice to the case's merits.

Uploaded by

Basit Ali
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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Judgment Sheet

IN THE PESHAWAR HIGH COURT,


PESHAWAR

JUDICIAL DEPARTMENT

Cr.M/BA.No…379-P/2016.
JUDGMENT
Date of hearing…18/03/2016………………………………………………….
Petitioner (Saddique) By Sahibzada Assadullah, Advocate………..…….…
State By Mr.Saeed Khan, Advocate ………………….………………………...
Complainant By Mr.M.Arif Khan, Advocate ..………………………………..

QAISER RASHID KHAN, J:- The petitioner stands

charged in case FIR No.548 dated 24.08.2010 under

section 302/324/34 PPC, at Police Station Yar Hussain,

District Swabi and seeks bail after being refused the

said concession by the learned ASJ-Lahor, Swabi on

09.02.2016.

2. Allegations against the accused-petitioner are

that he alongwith his co-accused had fired at Fazl-e-

Malik, son of the complainant Fazal Rehman with their

respective firearms with which he was killed, hence the

FIR ibid.

3. The learned counsel for the petitioner though

contended that the accused-petitioner is innocent and

has been falsely implicated in the present case but the

main thrust of his arguments was that since the co-


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accused with a similar role has been acquitted by the

learned trial court on 01.07.2011 under section 265-K

Cr.P.C., therefore, the accused-petitioner is entitled to

bail on such score as the trial of the accused-petitioner

would not have a different outcome.

4. The learned counsel for the complainant on his

turn vehemently opposed the bail petition and

contended that the accused-petitioner cannot take

benefit of the acquittal of his co-accused as he has not

faced any trial but rather remained absconder for a

considerable long time and it is premature to foresee the

outcome of the trial) of the present accused-petitioner.

The learned State counsel also supported the arguments

of the learned counsel for the complainant.

Arguments heard and available record perused.

5. As per the FIR, the complainant Fazal Rehman

has attributed specific role of firing to the accused-

petitioner alongwith his acquitted co-accused Yousaf

Khan at his son Fazal-e-Malik with which he was hit

and died on the spot whereafter the accused decamped

from the spot and the motive was stated to be dispute

over passage in the land. The only argument hard

pressed by the learned counsel for the accused-

petitioner is that since the co-accused Yousaf Khan has

been acquitted after facing trial, therefore, the accused-


3

petitioner is entitled to bail as his trial would not fetch a

different result i.e. his conviction.

6. I do not subscribe to the viewpoint of the

learned counsel for the petitioner as in the case of co-

accused Yousaf Khan, he had duly faced trial and

during such proceedings, the complainant had also

recorded his statement but did not charge him for the

commission of the offence and that is how his

application under section 265-K Cr.P.C. was allowed

by the learned trial judge resulting in his acquittal. Such

argument is not available to the present petitioner as

r
after being directly charged by the complainant for the

murder of his son alongwith his co-accused, he

preferred abscondence rather than surrender himself to

face trial. It has been held in Ibrahim Vs. Hayat Gul

and others reported in (1985 SCMR 382) that:-

“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.”

Grant of bail to the accused-petitioner at this

stage would amount to giving him premium for his

long abscondence and would lay a ground for

accused charged in like manner cases to remain


4

absconders and fugitives from law and only

surrender when their co-accused are acquitted of the

charges and then straightaway apply for the

concession of bail. Moreover, after the acquittal of

the co-accused under section 265-K Cr.P.C, the

prosecution is in no manner estopped to bring home

the charge of guilt against the other accused directly

charged for murder, as in the present case. Keeping

in view all the available circumstances i.e., the

accused-petitioner being directly charged, the

recovery of empties from the spot, medical evidence

r
and of course the long abscondence of the accused-

petitioner when he was proceeded against under

section 512 Cr.P.C., I hold the accused-petitioner

prima facie linked with the commission of the

offence falling within the prohibitory clause of

section 497 Cr.P.C. and thus disentitled to be

enlarged on bail.

Resultantly, this petition stands dismissed.

However, the learned trial court is directed to

conclude the trial as early as possible.

Before parting with this order, it is directed

that any observations recorded in this order, being

purely tentative in nature, should in no way

prejudice the proceedings before the learned trial


5

court where the case be decided strictly on its own

merits after recording evidence.

Announced. JUDGE
Dt.17.03.2016.

(A.K.KHAN)

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