2012 PLP 2645 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

Petitioner Ishfaq, through this petition, seeks bail in case F.I.R. No.489 dated 10-7-2010 registered for offence under section 400/401 P.P.C., 512 Cr.P.C. at Police Station Choora District Mardan.

2. The complainant Niaz Hussain, S.I. Chowki Dubai while on gusht present at village Palo Dheri alleged that the accused Ishfaq son of Hawas Khan (the present petitioner) along with co-accused belong to a gang involved in dacoity and theft and taking Ghunda Tax by force from the people but no one from the locality come forward to bring the same into the notice of law-enforcing agency. The complainant also alleged that he himself noticed the accused while taking money from the people by force, thus, a case against them under the above section of law was registered.

3. Learned counsel for petitioner contended that the petitioner has been falsely implicated in the instant case with ulterior motive. Further contended that except the sole statement of the complainant, who is a police official, there is no other evidence whatsoever on record to connect the petitioner with the alleged crime. He was of the view that the prosecution story is false and fabricated one having no supporting evidence. He also pointed out that initially the petitioner was granted bail by learned Additional Sessions Judge-V, Mardan but at the commencement of the trial he did not attend the court due to some circumstantial compulsion, thus, proceedings against him under section 512, Cr.P.C. were initiated. He further submitted that since co-accused has been acquitted by the learned trial Court on 17-12-2011, therefore, on the same charge and evidence the prosecution would not advance the case against the petitioner. In support of his contentions, he relied on a case reported through 1998 PCr.LJ 1450.

4. Learned State counsel while opposing this petition contended that once the petitioner was granted bail and he misused the same, then, subsequently he is not entitled to the same concession. He was of the view that trial has commenced and when the petitioner absented himself from the trial and remained fugitive from law for about two years and joined the proceedings after the acquittal of co-accused, thus, in this background the accused is not entitled to the concession of bail. Arguments heard. Record perused.

5. The allegation against the petitioner is that he being member of a Gang of dacoits and thieves, who used to take money from the people by force but strange enough that during the investigation the I.O. did not record the statement of any affectee in support of the alleged crime When the learned State counsel was confronted that as to whether there is any criminal history or previous conviction of the petitioner in such like cases, his answer was in the big "NO".

6. Keeping in view the aforementioned fact remains that the petitioner was deemed fit to be entitled to the concession of bail earlier but having misused the same does not alter/change the merits of the case. Moreso, abscondence would not create any hurdle in the way of accused/petitioner, if otherwise he is entitled to the concession of bail. Moreover, the co-accused Abdur Rehman has been acquitted by learned Additional Sessions Judge-V, Mardan on 17-12-2011, therefore, being similarly charged and on the same set of evidence to be produced against him at the trial, hence keeping him behind the bars for indefinite period would be of no useful purpose for the prosecution, therefore, on the available record the petitioner has made out a case for bail. For the aforestated reasons, this petition is allowed and the petitioner is granted bail in the sum of Rs.300,000 with two sureties each in the like amount to the satisfaction of learned trial Court. The local status and financial strength of the sureties shall be ensured before admission of bail bonds. MWA/263/P Bail granted.