' Shortly narrated facts of the case are that complainant Habib-urRehman lodged a report with Tahir Khan, S.H.O., Lakki in Emergency Ward of Civil Hospital, Lakki to the effect that on 31-7-2002 at 2230 hours he alongwith his brothers Zain-ul-Aabidin and Inayat-ur-Rehman were proceeding towards their village from the Baithak. No sooner they came , out of the Baithak, they noticed Mir Hawas empty-handed, Jamshed, Salahuddin and Saif-ur-Rehman armed with Kalashnikovs. All the persons came near to them and at the command of Mir Hawas, started firing with their Kalashnikovs at the complainant party. As a result of firing, complainant sustained injuries"while his brothers escaped unhurt. After accomplishing the mission, the accused decamped from the spot.
Motive for the occurrence was stated to be family dispute between the parties.
2. The petitioner has moved instant application seeking his release on bail after refusal of the same by learned Additional Sessions Judge-II, Lakki Marwat vide his order, dated 31-1-2004.
3. Mr. Ahmad Ali Khan, Advocate for the petitioner contended that the occurrence having taken place in dark hours of the night, identity of the assailants becomes doubtful; that four persons have been charged for a single injury found simple in nature; that co-accused attributed similar role qua the petitioner have already been released on bail and disappearance of a person named as a murderer/culprit after the occurrence, is but natural, whether named rightly or wrongly.
Abscondence per se is not a proof of the guilt of an accused person. It may, however, create suspicions against him but suspicions after all are suspicions. He placed reliance on Rasool Muhammad v. Asal Muhammad and another 1995 SCM R 1373 and The State v. Malik Mukhtar Ahmad Awan 1991 SCM R 322.
4. Conversely, Mr. Muhammad Sharif Chaudhary learned Deputy Advocate-General for the State strongly opposed the bail application maintaining that the prosecution is in possession of sufficient evidence to associate the petitioner with the crime and that noticeable abscondence of the petitioner for more than one year stands in his way and disentitles him for the relief of bail.
5. It is a settled principle of law that at bail stage, the Court has only to see whether the accused was connected with the commission of crime or not. For that purpose, only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mind of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail in line with guidelines covering legal requirements.
6. No doubt it is true that the petitioner has been nominated as one of the accused persons in the report lodged at the instance of Habib-ur-Rehman complainant and a specific role of firing has been attributed to him and he remained fugitive from law for more than a year, but it is equally true that four persons have been charged for the single injury declared simple by the Medical Officer. Co-accused Mir Hawas, Salahuddin and Jamshed alleged to have participated in the commission of offence have already been released on bail on the basis of compromise. The complainant is absconding in another case. The petitioner cannot be kept in jail till arrest and trial of the complainant. The mere fact that the petitioner remained in hiding, it itself, is not sufficient to withhold him the 'concession of bail. It is not an absolute rule that a fugitive should under no circumstances be enlarged on bail.
7. For the above stated reasons, this application is accepted and the accused-petitioner is ordered to be released on bail provided he furnishes bail bonds in the sum of Rupees five lacs with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.