2012 PLP 2025 (YLR)

MAZHAR IQBAL SIDHU, J.

Muhammad Akhtar has come to this Court after being declined relief of bail by the learned trial court with the selfsame prayer in a case lodged vide F.I.R. No.127 dated 3-8-2003 under sections 302, 109, 148, 149, P.P.C. at Police Station Banmban Wala District Sialkot about an occurrence which took place on the same day at about 12-30 p.m. wherein Zulfiqar was shot dead by the petitioner along with his co-accused.

2. Learned counsel for the petitioner contends that petitioner has been involved on account of enmity; post mortem report negates the ocular account and mere abscondance is no ground to decline relief of bail provided the same is made out by the material available on the record and has placed reliance on 1999 PCr.LJ 1464.

3. Contrary to the same, dissentients have opposed the same by arguing that petitioner remained a proclaimed offender for about eight years and five months and such prolonged abscondance has not been explained by him and this fact alone is sufficient to decline him relief of bail; he is sole perpetrator for the assassination of Zulfiqar and dissonance in between the ocular and the medical evidence cannot benefit to the petitioner at this stage and the offence alleged falls within the prohibitory clause of section 497, Cr.P.C, therefore, the petitioner is not entitled for the grant of bail and if the same is granted then every prospect exists of abscondance of the petitioner again.

4. Heard. Record perused.

5. According to the contents of F.I.R. petitioner was holding a fire arm weapon and he made a straight fire hitting on the back of Zulfiqar deceased and the fire went through and through whereas scanning of post-mortem report of the deceased shows that he did not receive any fire shot injury on his back rather it is an exit wound described by the doctor and in this way the injury attributed to the petitioner as per allegation is exit one. No doubt the petitioner alone has been ascribed causing fire shot injury on the deceased but during the investigation it has been brought on the record that one Nasir son of Qamar Din had made the fire shot on the deceased and in this way by two counts i.e. medical incoherence with the ocular account and the opinion of the police favouring the petitioner, case of the petitioner has become a matter of further inquiry as to his involvement. So far as the abscondence of the petitioner is concerned, no doubt it reacts the character of a wrongdoer and this piece of evidence is created by the accused himself but under the Pakistan Penal Code abscondence itself has not been made as an offence, however, the same can be taken into consideration while disposing of a bail application but at the same time this Court as well as the august Apex Court of Pakistan have held in so many judgments that if on merits right of bail is accrued on the basis of further inquiry then the same cannot be refused owing to abscondence.

6. For what has been discussed above, the instant application is accepted and petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (two lacs) with two sureties in the like amount to the satisfaction of the learned trial court. M.W.A./M-184/L Bail granted.