2017 PLP 1771 (MLD)

MALIK HAQ NAWAZ, J.

The petitioner was booked for the above offences vide FIR No.18/12 registered under section 302/34, P.P.C. read with sections 6/7 of ATA-1997 at Plice Station Basin Gilgit.

2. The brief facts of the case as narrated in the FIR are that on 26.3.2012 one Essa Khan lodged an FIR No. 18/12 with police station Basin regarding murder of his brother Khush Muhammad by some unknown assailants.

3. The local police started investigation and arrested some suspects, who after interrogations, were released under section 169, Cr.P.C. The local police arrested one Inayatullah, who disclosed the name of present petitioner and one Naveed in commission of offence. The accused Naveed was released by the police under section 169, Cr.P.C., while accused Inayatullah was released on the basis of a compromise affected between him and legal heirs of deceased.

4. The petitioner could not be arrested as he went underground and was arrested after a period of 3 years of the alleged occurrence.

5. The learned counsel submitted at bar that there is no worth reliance evidence against the accused except the statement of his co-accused Inayatullah, who has been exonerated from the case on the basis of compromise and co-accused Naveed, who was attributed similar role has been released by the JIT under section 169, Cr.P.C. Per learned counsel the only evidence against the petitioner is his statement under section 21-H, which is not corroborated from any other evidence. No recovery has been effected from the petitioner nor there is any direct or circumstantial evidence against the petitioner to connect him with the alleged offence. The learned counsel further submitted that no conviction could be based on a bare statement of 21-H and abscondence by itself is not a ground to refuse bail to the petitioner in absence of any corroboratory evidence.

6. On the other hand the learned Dy.A.G, vehemently opposed the petition on the main ground that the petitioner remained absconder for a long period of 3 years and such a long and unexplained abscontion by itself sufficient to refuse bail to the petitioner and as per the arguments of learned Dy.A.G, he confessed his guilt before SSP Gilgit under section 21-H, which if read with the factum of abscondence is sufficient incriminating evidence to refuse bail to the petitioner. The learned Dy.A.G, further contended that bail to fugitive from law will encourage likeminded people and bail being a discretion should not be extended to the petitioner.

7. We heard the learned counsel for both the parties and perused the record with their able assistance. There is no worth reliance evidence against the petitioner either direct or circumstantial except a statement under section 21-H and his abscondence. It may be mentioned here that abscondence by itself is not sufficient to sustain conviction and abscondence is always considered a factor between guilt and innocence. Some people become absconder because of their guilty conscious but some to avoid unnecessary harassment and torture of police. Mere abscondence cannot be made a ground for refusal of bail if the ingredients of a prima facie case are lacking. There is no worth reliance evidence against the petitioner except statement of his co-accused, which will not be sufficient to sustain conviction as a capital charge in absence of any corroboratory evidence.

8. As a result of above discussion, we feel that case of the petitioner is one of the further inquiry falling under section 497(2), Cr.P.C., therefore, we in the result of above discussion vide our short order dated 23.6.2016 allowed bail to the petitioner which reads:-- "The instant bail petition is accepted. The petitioner/accused be released on bail subject to furnishing his bail bonds in the sum of Rs. 1,00,0000/- (Rupees ten lac only) with two sureties each in the like amount to the satisfaction of trial Court"

9. The instant petition is disposed of accordingly. File. HBT/92/GB Bail granted.