2008 P Cr (PLP)

MUHAMMAD ALAM KHAN, J.

Saeed son of Mehraban resident of Nodeh Payan Tehsil and District Peshawar has moved this Court for his release on bail who has been charged in case F.I.R. No.514, dated 26-8-2005 under sections 302/324/34, P.P.C. Police Station, Pishtakhara, Peshawar.

2. Briefly narrated the facts of the case are that on 26-8-2005 at 2320 hours Khushdil Khan son of Abdul Malik complainant lodged a report under the above mentioned section of law to the effect that on the fateful night of occurrence he along with his maternal-uncle's son Khalid Asghar son of Badshah Gul were coming from Peshawar Saddar through Motorcycle No.9487-F, Peshawar to their village Nodeh Payan. The motorcycle was being drivel, by the complainant while Khalid Asghar deceased was occupying the rear seat when they reached the place of occurrence, in the meantime a car red in colour came in which four persons were present, out of those persons, one Shakirullah son of Nasrullah and Sajjad Hussain son of Ghulam Hussain were duly armed with kalashnikov. They deboarded from the motor car and started firing at them. The complainant made good his escape while Khalid Asghar was hit with the firing of those persons who was being taken to the hospital with the help of his co-villagers, but he could not survive and succumbed to the injuries. According to the complainant he has identified the two persons above mentioned in the electric light as the bulb was lit at that time. The two accused along with those two unknown persons decamped from the spot. This narration was incorporated in F.I.R. No.514, dated 26-8-2005. Subsequently the statements of the complainant Khushdil Khsn son of Abdul Malik, Muhammad Nawaz son of Said Ali, and Zahir Shah son of Roshan Khan was recorded under the provisions of section 164, Cr.P.C. and the complainant on 1-9-2005 charged one Saeed son of Mehraban the present accused/petitioner and Ghulam Hussain son of Badshah Gul and consequently Saeed petitioner was arrested by the local police.

3. Saeed petitioner submitted bail application to the learned Judicial Magistrate who rejected the same on 16-1-2008 then he moved post-arrest bail application in the Court of learned Sessions Judge, Peshawar which came for hearing before learned Additional Sessions Judge-VII, Peshawar and the learned Additional Sessions Judge after perusing the record and hearing the arguments of the learned counsel for the parties vide order, dated 25-1-2008 rejected the application, hence, Saeed petitioner has come to this Court for bail.

4. Qaisar Rahim, clerk of Mr. Hussain Ali, Advocate submitted detailed written arguments wherein it was contended that the petitioner has not been charged in the F.I.R. and no effective role has been given to the petitioner. Further submitted that the petitioner has been charged at a very belated stage after about seven days of the occurrence and that too, that no identification parade has been conducted, the occurrence being night occurrence, the identification was doubtful and the charge at such a belated stage call for further inquiry and the petitioner is entitled to the concession of bail. It was also argued that the investigation is complete in the present case and presence of the petitioner is no longer required for investigation. The complainant was served in this case through substituted service with affixation but he inspite of the service has not appeared.

5. Ms. Sakina Gul, Advocate learned counsel appearing on behalf of the State submitted that the accused has been duly named in the supplementary statements recorded under section 161, Cr.P.C. and duly authenticated by statements under section 164, Cr.P.C. there is incriminating evidence available on the record to connect the accused with the commission of the offence, thus, it was submitted that reasonable grounds exist to believe that the accused has committed an offence which is punishable with death or transportation for life and furthermore the accused/petitioner remain absconder for sufficient long time thus, he is not entitled to the concession of bail.

6. I have given my anxious consideration to the facts and circumstances of the case, the accused/petitioner has not been charged in the F.I.R., even in the statements recorded after about a week of the registration of the case, he had not been given any role of effective firing and has been given the role of only presence in the car at the time of the occurrence, I would avoid to go into deep appreciation of detailed evidence lest it may not prejudice the case of either party. Suffice it to say that the role of ineffective firing with no specific role when attributed to a person, cannot be a hurdle in the way of release of a person on bail, specially when a person had not been named in the F.I.R. and was subsequently incriminated in the supplementary statements recorded after seven days of the registration of the case as held in the case of Rasool Bakhsh v. The State 2003 PCr.LJ 119; Muhammad Ilyas v. The State 2004 MLD 221 and Muhammad Shahbaz v. The State 2008 MLD 27.

7. Mere absconsion of an accused person cannot be a ground for refusal of bail to a person because this is not the proof of the guilt of the accused/person. Disappearance of a person charged in a murder case, after the occurrence is but natural and presumption of guilt as well as of innocence can be scanned from the absconsion subject to the proof at the time of trial of the case as held in Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 and Muhammad Mansha v. The State 1997 Cr. LJ

569. The case on the available data on the record is one of further inquiry entitling the petitioner to the concession of bail.

8. In view of the facts and circumstances of the case narrated above the instant petition is accepted and the accused/petitioner Saeed son of Mehraban resident of Nodeh Payan Tehsil and District Peshawar is ordered to be released on bail provided he furnishes bail bond in the sum of Rupees two lass with two sureties each in the like amount to the. satisfaction of Duty/Judicial Magistrate. H.B.T./212/P Bail granted.