2014 PLP 2532 (YLR)

MUHAMMAD DAUD KHAN, J.

Accused/petitioner, Havaas Khan, involved in case F.I.R No.42, dated 10-3-2013, under section 302/34, P.P.C. of Police Station Haveed, Bannu, was refused bail by the learned Additional Sessions Judge-I, Bannu, vide its order dated 3-4-2014. He has moved this further application through his counsel for his release on bail.

2. Facts shortly are that complainant Noor Ali Khan got information that the dead-body of his son Wakil Nawaz Khan was lying across a road in village Kotka Awart. The information was given to by his other son, Member Ali. The complainant rushed to the spot. He reported the incident to the police. Initially, the complainant did not charge any one for the murder of his son. Later on the complainant along with his son Member Ali charged the present accused/ petitioner and his sons co-accused Tarifullah and Waseemullah by recording statement under section 164, Cr.P.C.

3. Counsel for the petitioner argued that the petitioner was not directly charged for the offence. Rather, he maintained, the allegations were made against the petitioner after six days of the occurrence. The counsel argued that involvement appears to be driven by consultation and deliberation. He also stated that there is no eye-witness or even the last seen evidence of the incident. It was also argued that Member Ali has attributed a specific role to co-accused Tarifullah, as such the case of present accused/ petitioner is one of further inquiry.

4. Counsel for complainant argued that three bullets of 7.62 bore have been recovered from the walls of the residential kotha of the accused. He added that the petitioner Tarifullah was personal friend of the accused. Lastly, the learned counsel stated that the accused has remained absconder.

5. I have heard arguments of learned counsel for the parties, Asstt: A.-G. for the State and perused the record with their valuable assistance.

6. A tentative assessment of the record reveals that the accused/petitioner was involved in the case after six days of the occurrence. There is no worth while source of information as to the actual involvement of the accused/petitioner in the commission of offence.

7. The recovery of three 7.62 bore bullets shows that the offence seems to have been committed by one person. In the recovery, does not, in any manner, connect the accused/petitioner with the commission of offence.

8. As reflected in his card of arrest, the accused/ petitioner is aged about 64/65 years. There is a wide scope of further inquiry in the present case. The mere fact that the accused/ petitioner has remained absconder is not enough to refuse bail. Reliance is placed on case titled "Ikram-ul-Haq v. Raja Naveed Sahir and others" (2012 SCMR 1273), "Ehsanullah v. The State (2012 SCMR 1137) and "Mitho Pitafi v. The State" (2009 SCMR 299).

9. Similarly, in cases of further inquiry falling under section 497(2), Cr.P.C., it becomes right of the accused to be enlarged on bail and commencement of trial would not become hurdle in the way of bail.

10. Moreover, bail of accused/ petitioner can not be withheld as punishment, merely on the ground that he is charged for a heinous offence, when otherwise, he is found entitled for the same, because if he is found guilty at the trial, he may be convicted and sentenced accordingly but no proper reparation can be offered for his unjustified incarceration, albeit, his acquittal in the long run.

11. For the aforesaid reasons, this petition is allowed and the accused/ petitioner is admitted to bail, provided he furnishes bail bonds amounting to Rs.2,00,000 (Two Lac) with two sureties each in the like amount to the satisfaction of Illaqa Magistrate/MOD. The sureties must be local, reliable and men of means. Above are the reasons of my short order of the even date. MWA/337/P Bail granted.