2008 P Cr (PLP)

MUHAMMAD ALAM KHAN, J.

Having failed to get the concession of post-arrest bail from the Courts of learned Judicial Magistrate-I and learned Additional Sessions Judge-IV, D.I. Khan vide heir orders 'dated 19-3-2008 and 28-3-2008 respectively incase F.I.R. No.494, dated 6-10-2007 under sections 302/324/34, P.P.C. of Police Station Cantt. D.I. Khan, Farooq Shah, accused/petitioner has filed the application in hand for the same relief.

2. The prosecution story as narrated by the complainant Gul Rahman in his initial report lodged on 6-10-2007 at 1110 hours in the Emergency Room of Civil Hospital D.I. Khan is to the effect that he (the complainant) used to sell fruit on a cart on Dinpur Road near Adda Zhoab and as usual he was present there at about 10-30 a.m. when he heard fire shots and saw that a person was lying dead with the firing and he himself was also injured on left buttock. However, none was charged for the occurrence. Subsequently, during investigation, on 25-10-2007 Ahmad Jan, brother of the deceased Ghazi Marjan recorded his statement under section 164, Cr.P.C. wherein Mustafa Shah son of Muhammad Noor Shah, Hayat Shah son of Mustafa Shah, residents of Darazinda, Farooq Shah and Anar Shah, residents of Deh Shah Alam Abad D.I. Khan were charged for the murder of the deceased Ghazi Marjan due to previous enmity.

3. Accused/petitioner, Farooq Shah, at first instance obtained pre-arrest bail but it was recall on 11-3-2008 whereafter his-post-arrest applications for bail were rejected as mentioned above and hence this petition.

4. Learned counsel for the petitioner argued that the case of the accused/petitioner is identical to that of his co-accused Abdur Razzaq who has been released on bail by the learned Additional Sessions Judge-V, D.I. Khan vide order dated 4-12-2007 and thus rule of consistency is applicable. That the occurrence is un-witnessed and no one is directly charged by the complainant in his first report. That the change against the petitioner is belated one after 19 days of the occurrence and thus, it smacks of consultation and premeditation and the alleged abscondence of the accused/petitioner has not been properly appreciated by the lower Court. In support of his contentions, reliance was placed on the cases reported as Muhammad Sultan and others v. The State 2007 YLR 228; Abdul Salam v. The State 1980 SCMR 142; Sher Zaman alias Alamsher v. The State 1992 PCr.LJ 409; Abdus Sattar and others v. The State 1982 SCMR 909; Rajada v. The State 2005 PCr.LJ 570; Daterdino and 3 others v. The State 2005 PCr.LJ 572; Ahmad Jamal v. The State PLD 1996 Lah. 261; 2004 MLD 221; State v. Malik Mukhtiar Ahmed Awan 1991 SCMR 322 and Shah Jehan v. Imtiaz alias Parache and another 1993 PCr.LJ 683.

5. On the other hand, learned Deputy Advocate-General representing the State resisted the bail prayer of the petitioner on the ground that he has been directly nominated by Ahmad Jan, brother of the deceased, in his supplementary statement recorded under section 164, Cr.P.C., supported by motive and that he has remained fugitive from law for an unexplained and noticeable period which disentitled him to the concession of bail. He relied on the judgments reported as Bashir Khan v. State through Advocate-General N.-W.F.P. Peshawar PLD 2005 Pesh. 98 and Saifullah v. The State 2003 PCr.LJ 1691.

6. The complainant, Gul Rahman has, however, sworn on affidavit which is placed on file wherein he has stated that he did not oppose the grant of bail to the petitioner on the ground that he has not identified anyone committing the offence though he himself was injured therein.

7. I have anxiously considered the valuable arguments advanced at the Bar and thoroughly scanned the record.

8. Admittedly, the accused/petitioner is not named by the complainant in his first report wherein he himself was injured and the accusation levelled against him by Ahmad Jan, brother of the deceased, was after nineteen days of the occurrence. Abdur Razzaq, co-accused of the petitioner who has been assigned identical role has already been released on bail by the learned Additional Sessions Judge-IV, D.I. Khan on 4-12-2007 and, therefore, the principle of consistency is fully attracted in the case, in hand as well. No recovery has been made from the place of occurrence and the rule is not absolute that an absconder should under no circumstances be admitted to bail, though abscondence does constitute a relevant factor when examining question of bail. Reliance in this respect is placed on 1991 SCMR

322. Prima facie, the available facts and circumstances of the case brings the case of accused/petitioner within the ambit of further inquiry entitling him to the concession of bail. However, the observations made in this order are tentative in nature and shall not prejudice case of either party at trial.

9. Resultantly, this application is accepted and the accused/ petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. two lacs with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall see that the sureties are local residents of D.I. Khan City, reliable and men of means. Above are the reasons for my detailed order of even date. H.B.T./84/P Bail granted.