---S. 497(5)--Cancellation of post arrest bail--Respondent admitting that the accused alongwith his brother, armed with Kalashnikovs, fatally targeted deceased, in the backdrop of an ongoing blood feud; witnesses survived the assault unscathed--

PLJ 2022 SC (Cr.C.) 17

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(5)--Cancellation of post arrest bail--Respondent admitting that the accused alongwith his brother, armed with Kalashnikovs, fatally targeted deceased, in the backdrop of an ongoing blood feud; witnesses survived the assault unscathed--Autopsy confirmed solitary fire shot in the left eye with corresponding exit--During spot inspection, the Investigating Officer secured 30 casings of Kalashnikov-- High Court, ignoring respondent’s absconsion, granted him bail on the ground that given the joint role it was far from being clear as to whose shot hit the deceased-- Both the respondents opted to avoid the law; one of them is yet not arrested, thus, in the absence of any investigative analysis or conclusion, there was no occasion for the High Court to itself presumptuously extricate the respondent from the web, woven by the identity of circumstances jointly hovering upon both the accused--The entire prosecution case to the wind, an opinion neither contemplated by law nor falling with the remit of “further inquiry”, a case of intervention stands made out--Criminal petition is converted into appeal and allowed; impugned order is set aside and bail granted to the respondent is cancelled.         [Pp. 18 & 19] A, B & C

Mr. Salah-ud-Din Malik, ASC/AOR for Petitioner.

Ms. Aisha Tasneem, ASC for State.

Mr. Saleem Ullah Khan Ranazai, ASC with Respondent No. 1 in person

Mr. Mahmood Ahmed Sheikh, AOR for Respondents.

Date of hearing: 8.2.2021.

PLJ 2022 SC (Cr.C.) 17
[Appellate Jurisdiction]
Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ.
MUHAMMAD KHAN--Petitioner
versus
IQBAL KHAN and another--Respondents
Crl. P. No. 687 of 2020, decided on 8.2.2021.
(Against the judgment dated 20.05.2020 passed by the Peshawar High Court Bannu Bench in Crl. Misc. BA No. 205-B/2020)

Order

Qazi Muhammad Amin Ahmad, J.--Impugned herein is order dated 20.05.2020 by a learned Judge-in-Chamber of Peshawar High Court at Bannu Bench, admitting Iqbal Khan respondent, accused in a case of homicide, to post arrest bail; according to the prosecution, he, on the fateful day, alongwith his brother Ayub Khan, armed with Kalashnikovs, fatally targeted Fazal Rehman, deceased, in the backdrop of an ongoing blood feud; witnesses survived the assault unscathed. Autopsy confirmed solitary fire shot in the left eye with corresponding exit. During spot inspection, the Investigating Officer secured 30 casings of Kalashnikov. The accused avoided arrest, however, the respondent was arrest after almost four years of the incident, co-accused still away from the law. The High Court, ignoring respondent’s absconsion, granted him bail on the ground that given the joint role it was far from being clear as to whose shot hit the

deceased. A position defended by the learned counsel for the respondent.

2. Heard. Record perused.

3. Totality of circumstances does not admit space, that too, within the restricted scope of tentative assessment to hypothetically absolve the respondent from the indivisibility of his role of being in the community of intention with the allegation of active participation in the crime.

Though the absconsion by itself is not proof of guilt nor insurmountably stands in impediment to release of an offender if otherwise a case for grant of bail is made out, nonetheless, it is a circumstance which cannot be invariably ignored without having regard to peculiarity of circumstances in each case as there are situations that possibly entail consequences. In the present case, both the respondents opted to avoid the law; one of them is yet not arrested, thus, in the absence of any investigative analysis or conclusion, there was no occasion for the High Court to itself presumptuously extricate the respondent from the web, woven by the identity of circumstances jointly hovering upon both the accused; the impugned exercise transcends beyond the barriers of tentative assessment; it throws the entire prosecution case to the wind, an option neither contemplated by law nor falling with the remit of “further inquiry”; a case for intervention stands made out. Criminal petition is converted into appeal and allowed; impugned order dated 20.05.2020 is set aside and bail granted to the respondent is cancelled.

(K.Q.B.)          Petition allowed