JUDGMENT ATTAULLAH KHAN, J,.---Hafiz Shahmaroz alias Hafiz has filed this petition for his release on bail in case F.I.R. No.41 dated 26-4-2004 wherein he is charged under sections 302/324/34; P.P.C.
For the murder of Bahadur Nawaz, son of the complainant.
2. He earlier applied for bail to the two Courts below but failed to get the concession of bail.
3. Briefly stated the facts are that on 26-4-2004 complainant reported in Casualty of Civil Hospital, Bannu that he received information that accused Hatiz, Aqal Nawaz, Habibullah Khan and Alif Khan are busy in cutting trees in the land of Inamullah. When the complainant reached there at about 12'O Clock along with his son, he found the petitioner along with his co-accused busy in cutting trees. The complainant wanted to stop them but in vain and they also got annoyed and opened fires with their Kalashnikovs with which his son Bahadur Nawaz was hit and thereafter the accused decamped. The injured was taken to the hospital, but on way, he succumbed to his injuries. The motive expressed in the F.I.R. Is that the accused were annoyed on account of a previous theft committed by them in which they were arrest on his report.
4. The learned counsel for the petitioner contended that according to the report, all the four accused fired effectively hit it caused only one injury and thus it has become a case of further inquiry as to whose lire was proved effective. His next submission is that the only evidence against the petitioner is absconsion which cannot be hurdle in the way of the petitioner for availing the concession of bail.
5. On the other hand, learned counsel for the complainant, in reply, contended that the petitioner remained fugitive from law for more than six years with no explanation, therefore, he has lost his right of bail. He further submitted that the F.I.R. Is promptly lodged and there is no question of misidentification. He also contended that there is a strong motive for the accused to commit the murder, therefore, the petitioner is not entitled to the concession of bail.
6. I gave my considered thought to the above submissions and perused the materials available on record.
7. The first fact which needs consideration is the involvement of four accused in this case. The petitioner is one of them. As per report, all the four accused opened fires with which Bahadur Nawaz, son of the complainant was hit and subsequently succumbed to the injuries. In this case,.
Four accused are charged and if not more, at least four shots have been tired. If this allegation of number of fires is kept in juxtaposition with recovery memo dated 26-4-2004, it stands negated for the reason that in the recovery memo, only one empty has been recovered from the place of occurrence. The questions remains to be resolved as to what happened with the rest of the empties fired by the other three accused. This fact makes the case of the petitioner arguable. The medical report also speaks something else against the contents of the F.I.R. The postmortem report Exh.PM discloses one entry wound which is again contradictory to the stand of the complainant taken the F.I.R. That four shots were fired which hit the deceased. Question antics that if four shots were fired which hit the deceased, then how it caused one injury. This is again a question to be answered at the trial stage. I may rely on 1997 SCMR 251 wherein it is held that:- "The learned Judge, however, failed to take notice of the fact that apart from the fact that only one injury on the head of the deceased can be Meld to be the cause of death of Muhammad Ashraf and the material so far collected by the police did not show as to which of the two petitioners caused this particular injury."
I may also rely on 2010 MLD 1-114 Karachi wherein the observations given by the learned Judge are that:- "There are 18 such other accused, therefore, it is not yet determined as to how many fired because no empties have been recovered from the side and it is not yet determined as to whose fire hit the deceased. Therefore, the case is of further inquiry."
I also rely on 2010 PCr.LJ 83 and 2010 PCr.LJ 537 Karachi. In the latest case law, it is held that:--"It is also pertinent to mention that there is recovery of only one empty cartridge at the scene of offence. Keeping in view the facts, I am of the opinion that the case of the present applicant/accused is of further enquiry and is not free from reasonable doubt, the benefit of which must go to the accused person."
Similarly, I also place reliance on 2005 A PCr.LJ 698. Keeping in view the above facts of the case and the principles laid down by the superior Courts, I am of the view that it is a case of further inquiry relating to the trial for determination.
The only question remains is that of absconsion of the petitioner for a period of more than six years.
As discussed above, there is no other evidence except the absconsion of the petitioner available against him. In such like cases, the settled principle of law is that abscondence cannot be a ground for refusing bail if the case of an accused otherwise falls within the ambit of further inquiry or he is entitled to bail on merits. The, facts of this case also disclose no merit. It is .Also of further inquiry, therefore, the petitioner is entitled to bail. Reference may be given to PLD 2000 Quetta 72 wherein the following observations have been made:-- "Bail cannot be refused to an A accused for abscondence if he has no knowledge about the case pending against him in any Court. Similarly, if the case of an accused falls within the ambit of further inquiry or otherwise entitled to bail on merits, the bail becomes his right notwithstanding with his abscondence. Mere abscondence does not disentitle accused for grant of bail."
In this case, at this moment, the involvement of the petitioner has become doubtful and this doubt may be taken into consideration at bail stage. I rely upon 2008 PCr.LJ 1312 Lahore wherein it is held that, "Benefit of doubt arising out if any can be given to an accused even at the bail stage and there is no cavil with the proposition that the law is not to be stretched in favour of the prosecution and bail 'cannot be withheld as a punishment."
9. On the other hand, learned counsel for the complainant relied on PLD 2009 Karachi 265. I have perused this case law. The facts of both the cases are different because in the reported case, the medical evidence was supporting the prosecution version and a Kalashnikov and pistol were also recovered from two accused but in the case in hand, neither the medical report supports the prosecution case nor any weapon of offence has been recovered from the accused. The learned complainant counsel also referred to 2009 MLD 1106. The perusal of this case law reveals that again the facts of both the cases are quite different.
10. The upshot of my above discussion is that four accused including the petitioner have been attributed the effective shots but only one empty has been recovered from the spot. The medical report also does not support the complainant's version because only one injury has been found on the body of the deceased. The only evidence of abscondence cannot be taken into account against the petitioner. The involvement of the petitioner as per record is doubtful unless the trial is conducted and true facts are disclosed.
11. For the reasons mentioned above, this petition is accepted 'and the petitioner is admitted to bail on furnishing 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/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means. This order shall not affect the trial.