2013 PLP 42 (YLR)

WAQAR AHMAD SETH, J.

Mukhtiar, accused/petitioner has applied for the grant of bail in case F.I.R. No.131 dated 31-1-2007 registered under sections 302/324/34, P.P.C. Police Station, Swabi after remaining unsuccessful in obtaining bail before the lower forum.

2. As per story of the prosecution, complainant while reporting the matter in casualty of Civil Hospital, Swabi alleged that he and his nephew, namely, Yasin on the eventful day came to the courts of Lahore and after making attendance over there, he along with his brother Bahadar Khan and said nephew proceeded to Swabi Adda in a Flying Coach and after de-boarding were walking towards Swabi chowk. When they reached the place of occurrence where accused Hukam Khan, one Khalis Khan, Mukhtiar (the present petitioner) and Afsar Shah emerged there duly armed with deadly weapons and on sight started firing at them, as a result his nephew Yaseen and a pedestrian namely Muhammad Rasool got hit and died on the spot whereas his brother Bahadar Khan a pedestrian namely Faisal Muhammad and Farhad sustained injuries while he luckily survive. He ran away towards the residential area and subsequently the dead bodies and the injured were shifted to the Hospital by the people present in the Bazar. Motive as alleged was the abduction of married sister of Hukam Khan by the deceased Yasin. The occurrence was stated to be witnessed by his brother Bahadar Khan and the injured. The delay in lodging the F.I.R. is stated to be due to fright he ran away towards village Swabi and has lost the way, hence the case was registered.

3. Learned counsel for the petitioner contended that there is unexplained and unusual delay in lodging the F.I.R., which has not been explained reasonably; that general role has been attributed to all the four charged persons/accused and out of them, one accused Afsar Khan has been acquitted by the learned trial Court vide judgment dated 12-3-2010, against which no appeal has yet been filed. Moreover, another accused/petitioner namely Khalis Khan has been allowed bail by this Court vide judgment/order dated 15-6-2012; that according to site plan point No.9 is shown for the accused/petitioner from where no recovery has been made and that no alleged crime weapon has been recovered from the possession of the accused/petitioner. Since the challan had been submitted in the court, trial had commenced, therefore, it was also argued that the same does not debar the accused/petitioner for grant of bail as prima facie the case of accused/petitioner appears is to be one of further inquiry, hence pending trial accused/petitioner be granted bail.

4. As against this, learned counsel for the State assisted by the learned counsel for the complainant argued that accused/ petitioner along with others has been directly charged in the case wherein, two innocent persons had lost their lives while others had sustained injuries, which is collaborated by incriminating material and being remained fugitive from law for sufficient time, he is not entitled to any concession and that the case of Khalis Khan is quite different from that of the petitioner while referring to the recovery memo: etc., thus, on the available record the accused/petitioner is not entitled to the concession of bail.

5. Arguments heard and record perused.

6. Admittedly, there is a delay of 2 hours and 15 minutes in lodging the F.I.R., which has not been explained properly and the reason advanced is not appealing to a prudent mind.

7. The contents of the F.I.R. and the other record available before me reflects that all the four accused are similarly charged. It has been noted that co-accused of the present petitioner namely Khalis Khan has already been admitted to post arrest bail in this case by this Court vide order dated 15-6-2012 passed in Criminal Miscellaneous (BA) No.593-P of 2012. It is not disputed that the case against the present petitioner is not in any manner dissimilar to or distinguishable from the case against the said co-accused. In these circumstances, there is no reason why the present petitioner may not be treated in the same manner in the matter of bail as his co-accused who has already been admitted to bail. The principle of consistency is to be followed in order to maintain balance and the doctrine of an equality before law as enshrined in Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.

8. The record further reveals that one co-accused namely Afsar Shah has been acquitted under section 265-K, Cr.P.C, after recording as many as 9 P.Ws., on the basis of evidence, this fact also could not be ignored where an identical role has been given. Moreover, his abscondence could not be treated as a bar to his release on bail. The rule that fugitive from law shall under no circumstances be enlarged on bail is not absolute if the case of an accused is otherwise found fit for bail on merits and that bail cannot be refused if he had remained an absconder, reference is made to, State v. Malik Akhtar Ahmad, 1991 SCMR

322. As the abscondence by itself is not a pointer towards the guilt of an accused, Gul Khan v. State 1999 SCMR 304 is referred.

9. Although, the challan has been submitted in the court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under the provision of section 497, Cr.P.C, then it becomes a right of accused that he be released on bail and practice of a refusal in such cases where challan is submitted shall not be bar to refuse a right. Reliance is placed on PLD 1989 Supreme Court

585. It is also settled principle of law that observations made by superior courts dealing with the bail matters are always tentative in nature.

10. For the reasons discussed above, this bail application is allowed. Petitioner is directed to be released on bail on furnishing bail bonds in the sum of Rs.300,000 (three lac) with two sureties each in the like amount to the satisfaction of learned Illaqa/Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means. Above are the reasons of my short order of even date. MWA/279/P Bail allowed.