2012 PLP 1164 (YLR)

ATTAULLAH KHAN, J.

Petitioner Abid Ali Khan, who is charged in a case registered against him and others under Sections 302/34, P.P.C., vide F.I.R. No.170, dated 15-3-2003 in the Police Station Nasir Bagh, District Peshawar, has asked for his release on bail mainly on the grounds that he has been falsely implicated in the case as there is no evidence against him and his co-accused as one of the co-accused involved in the case has already been acquitted by the trial court; that the only evidence against him is his abscondence which cannot be taken into consideration unless some other incriminating material connecting him with the commission of offence is available against him.

2. On the other hand, learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant by opposing the grant of bail to the accused/petitioner contended that the accused/petitioner is directly charged in the promptly lodged F.I.R.; that abscondence of the petitioner for a sufficient long time too proves his guilt, disentitling him to the concession of bail and that acquittal of one of the co-accused charged in the case, would not automatically create a right for the petitioner for enlarging him on bail as each case is to be adjudged on its own merits and that the offences he is charged with attract the prohibitory clause of section 497, Cr.P.C.

3. I have gone through the record carefully and considered the submissions made by the learned counsel for the parties.

4. The perusal of record shows that co-accused Muhammad Ali, charged in the case, has been acquitted by the trial court vide judgment dated 23-5-2011. The reasons for acquitting the co-accused prevailed with the learned trial Judge have been mentioned in Paragraphs Nos.7 and 8 of the judgment. Its perusal shows that some of the material witnesses were either abandoned being won over or reportedly dead, e.g. the evidence of material witnesses recorded under section 512, Cr.P.C. was not transferred to the present case; eye-witness Sadia Gul, who happened to be sister of the deceased, was abandoned being won over; Mst.Shagufta widow of deceased could not be examined being not traceable and lastly Mst.Shah Tareena who is complainant of the case was never examined being reported dead. This was the scanting nature of evidence led by the prosecution against the co-accused charged in the case and on the basis of such evidence, conviction cannot be recorded. As regards the case of the petitioner, suffice it to say that in view of the hollowness of the prosecution case, the only evidence against the petitioner is his abscondence which may not affect his right to get the concession of bail as there is no circumstantial evidence against him which could differentiate the case of the petitioner from that of the co-accused acquitted of the charge and as such the case of the petitioner is fit for grant of bail. In support of petitioner's right for grant of bail, I rely on the dictum laid down by the honourable Supreme Court in the case of Mitho Pitafi v. The State (2009 SCMR 299) wherein it has been held as under:-- "According to F.I.R. neither any role has been attributed to the petitioner nor his presence has been shown at the time of occurrence. Vide order, dated 18-2-2002, co-accused namely Jam Patafi has been released on bail by as learned trial court but the concession of bail was declined to the petitioner on the ground that he was fugitive from law. Learned High Court of Sindh as well as learned trial court has rejected the bail of petitioner on account of absconsion and not on merit. It is well-settled principle of law that bail can be granted if an accused has good case for bail on merit and mere absconsion would not come in way while granting the bail. We are, prima facie, of the view that the learned High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner." The judgment of this Court in Bail Petition No.14 of 2010 decided on 5th March, 2010, may well be referred in this behalf.

5. For the reasons discussed above, this petition is allowed and the petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.Two lac, with two sureties, each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate who shall see that the sureties are local, reliable and men of means. M.W.A./39/P Bail granted.