Abdul Hameed Dogar, HCJ,--This petition for leave to appeal is filed against judgment dated 20.8.2008 passed by learned Judge in Chambers of Peshawar High Court, Peshawar whereby Crl.
Misc. No, 845 of 2008 filed by petitioner was dismissed and concession of bail was declined to him.
2. Briefly stated facts as narrated by complainant Sahib Khan in FIR No, 152 dated 20.3.1999 at Police Station Hangu under Sections 365/34 PPC are that on 19.3.1999 he along with his wife sister's son Muhammad Ishtiaq started for the house in a Suzuki Van. On their way an unknown person also boarded the vehicle. As the vehicle slowed down on a speed breaker the unknown person pushed Mohammad Ishtiaq out of the vehicle where four persons including the brother of the petitioner Amanullah Khan a fugitive from law and his companion Mula Din duly armed were standing on the road whereas petitioner Muhammad Najeeb was also present just near them in a blue colour vehicle. All the four persons abducted Mohammad Ishtiaq, pushed him in a vehicle and proceeded towards Thall. The motive for abduction was that in the year 1997, the petitioner's cousin Saib Nabi was murdered for which his brother at the instance of petitioner committed the murder of Khawaja Mohammad. On account whereof, he and his entire family members were annoyed and in order to exert pressure Ishtiaq was abducted. Initially FIR was registered under Sections 342/347/34 PPC which was subsequently altered to Sections 365/34 PPC. The abductee Muhammad Ishtiaq was recovered on 07.8.1999, who in his statement recorded under Section 164 Cr.P.C. charged petitioner and others for his abduction and for demanding ransom amount in the sum of Rs, 30,00,000/- from his father for his release.
3. Petitioner was arrested in this case on 14.5.2008 when his ad-interim pre-arrest bail was not confirmed by the learned trial Court. Feeling aggrieved, he filed Crl. Misc. No, 845 of 2008 before learned Peshawar High Court, Peshawar which was dismissed as stated above.
4. Learned counsel for the petitioner vehemently contended that learned High Court while declining bail to the petitioner has not appreciated the facts of the case in its true perspective which resulted in miscarriage of justice. According to him, FIR was lodged with a delay of one day. Learned counsel for the petitioner referred to the affidavit sworn by complainant wherein he has stated that after being fully satisfied with regard to innocence of the petitioner he does not want to pursue the matter further. He further contended that at the time of registration of FIR No, 412 dated 04.8.1998 under Sections 302/324/34 PPC. The petitioner was out of country whereas in FIR No, 34 dated 25.1.1999 registered at Police Station Hangu, he has been acquitted from the said case in terms of compromise, however, this aspect escaped from the notice of learned High Court. He contended that abductee was not recovered from the possession of the petitioner rather he was handed over to his parents by the elders of the Khoidadkhel tribe but their statements were not recorded by the police. He further contended that allegedly the complainant was present along with abductee at the time of occurrence but the abductee in his statement recorded after his release.
5. On the other hand learned Advocate General NWFP controverted above the contentions and supported the impugned judgment. He contended that petitioner was charged by abdutee for his abduction, moreover, petitioner remained absconder for more than nine years. He further contended that in the facts and circumstances of the case petitioner is not entitled for grant of bail.
6. We have considered the contentions raised at the bar and have also gone through the material brought on record in minute particulars. Though initially petitioner was nominated in the FIR by the complainant as an accused but later on through affidavit he stated that he is satisfied with regard to the innocence of the petitioner and does not want to proceed with the matter. This aspect of the matter has not been taken into consideration by the Courts below: We without touching the merits of the case are of the view that case of petitioner is of further inquiry. Accordingly, this petition is converted into appeal and is allowed. Appellant Muhammad Najeeb is granted bail subject to furnishing surety in the sum of Rs, 200,000/- (Rupees two lacs) with PR bond in the like amount to the satisfaction of the trial Court.
7. These are the reasons of our short order of even date.