2010 PLP 2423 (YLR)

MUHAMMAD SAFDAR KHAN SIKANDRI, J.

Having failed to concession of bail from the Court of learned Additional Sessions Judge-I, Lakki Marwat vide order, dated 31-5-2010, the petitioner Shamim Khan has now come up to this Court for securing his bail in case F.I.R. No.143, dated 12-8-2001 registered under sections 302/34, P.P.C. At Police Station Ghazni Khel, District Lakki Marwat.

2. The allegations against the petitioner are that on 12-8-2001 he along with the co-accused in furtherance of their common intention fired at Sher Muhammad, son of the complainant, as a result of which he got hit and expired.

3. Learned counsel for the petitioner contended that there is delay in lodging the F.I.R. that four accused have been attributed the role of firing at the deceased but it is not known as to with whose fire, the deceased got hit. He further contended that Sard Ali co-accused of the petitioner charged with similar role has been acquitted by the trial Court. He went on to argue further that according to the report of FSL the empties recovered from the spot were fired from two different weapons which belies the version of the complainant and that medical evidence and site plan also do not support the story put forth by the complainant. Regarding abscondence of the petitioner, learned counsel stated that when the petitioner has good case on merits, the abscondence alone would not come in his way while granting him bail. To support his contentions, learned counsel for the petitioner relied on 2009 SCMR 299 and PLJ 2010 Cr.C. (Lahore) 292.

4. On the contrary, learned counsel appearing for the State opposed the grant of bail and contended that the petitioner stands directly charged in the F.I.R. for firing at the deceased and that he remained fugitive from law for a considerable long period and does not deserve the concession of bail at this stage.

5. I gave my anxious consideration to the above arguments and perused the materials available on record.

6. The contents of F.I.R reveal that the petitioner along with his other co-accused is charged for firing at the deceased. Specific role of causing fatal injury to the deceased has not been attributed to anyone of the accused. Co-accused Sard Ali charged with similar role has already been acquitted by the trial Court, therefore, treated at the petitioner also deserves to be par co-accused. It has been held in PLJ 2010 Cr.C. Lahore 292 that, "As the Courts have to give equal treatment to the accused person having one and the same role in the same' case even according to the, Injunctions of Islam and the Constitution of Islamic Republic of Pakistan, 1973, equality between a person is to be maintained and Courts are always guardian for the right of the people." In view of plethora of dictums of superior Courts, the abscondence of the petitioner alone will not be a hurdle in his way for his release on bail. In this respect, I may refer to the case of Mitno Pitafi, v. The State (2009 SCMR 299) wherein it is held that, "Learned High Court of Sindh as well as learned trial Court has rejected the bail of petitioner on account of absconsion and not on merits. It is well settled principle of law that bail can be granted if an accused has good case for bail on merits and mere absconsion would not come in way while granting the bail."

7. In view of the attending facts and circumstances of the case and keeping in view the above, dicta, I am of the view that the case of the petitioner requires further inquiry into his guilt, therefore, without touching the other merits of the case, this petition is accepted and the petitioner Shamim Khan is admitted to bail provided he furnishes bail bonds in the sum of Rs.2,00,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate. H.B.T./213/P Bail granted.