On 6.7.2000 Mewa Khan s/o Payo Khan reported to the police that he got information to the effect that his maternal uncles Mir Rehman and Wahid Gul were killed in the brick kiln at Mattani Kohat Road by means of fire arm. When on such telephonic message they came to the brick kiln, there they found the above named persons dead. He did not charge anyone for the commission of offence.
2. It was later on 11.7.2001 that statement of Mst. Khail Marjana widow of Mir Rehman and aunt of Wahid Gul was recorded under Section 164 Cr.P.0 wherein she stated that nobody was charged in the FIR for the murder of her husband and nephew but now she was satisfied that the two deceased were done to death by Hazrat Umar, Said Umar, Nisar, Munawar (petitioner), Shafiq sons of Muhammad Umar and Muhammad Umar. The same day similar statement was recorded by Mst. Zari Khanam w/o Gul Rehman mother of Wahid Gul and sister-in-law of Mir Rehman deceased. She also gave identical statement as was given by Mst. Khail Marjana. None of the two ladies disclosed the source of their satisfaction nor anyone has been examined during the course of investigation to have informed them about the killing of the two deceased at the hand of the petitioner.
3. Learned counsel for the complainant vehemently argued that one Khawaja Saeed was examined by the police under Section 161 Cr.P.C. wherein he stated that three persons were seen by him while fleeing away from the spot after commission of the offence. However, the learned counsel could not controvert the fact that even that witness has not named any of the persons who were seen by him while fleeing away from the spot. Additionally, there is nothing on record to suggest that any identification test was conducted in respect of the present accused-petitioner through the said witness. Learned counsel for the complainant further submitted that accused may not be released on bail till the identification test is conducted.
4. I do not find any substance in this submission as the petitioner was arrested on 12.1.2010 and till now if identification test has not been conducted, how bail can be refused to him, if he is otherwise entitled to such concession.
5. Learned counsel for the complainant further contended that in view of long abscondence of the accused, bail cannot be granted to him in view of the judgment of this Court reported in 2004 P.Cr.L.J 280.
6. In the cited judgment in it has been observed in paras 4 and 5 that:-- "4. An accused would only be entitled to the discretionary relief of bail when on the tentative assessm ent of materials brought before it, the Court reaches the conclusion that there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence, or an offence punishable with death, imprisonment for life or imprisonment for ten years, and in absence of any such finding to this effect the Court is debarred to hold that the case is of further inquiry entitling the accused to bail within the meaning of Section 497 (2) Cr.P.C. No doubt, the deeper appreciation of evidence at bail stage is not the requirement of law pertaining to bail matters but nevertheless the fact remains that cases regarding bail are not and cannot be decided in vacuum. The Court has to form a view by assessing the evidence on record tentatively.
5. No doubt it is true that in the FIR lodged by Mst. Farzana complainant on 12.6.2003, no one has been charged for the murder of Mst. Tahira Bibi but it is equally true that in the magisterial statement of the complainant recorded on 21.6.2003 the petitioner has been implicated in the case and charged for the offence in question. The petitioner is real uncle of the complainant and apparently there is no enmity between the complainant party and the petitioner prompting the former to implicate the latter falsely. In support of the bail application the plea of alibi has also been taken and it is contended that at the relevant time the petitioner was in Islamabad and as such the question of the petitioner having participated in the crime does not arise. I am afraid, this ground cannot be pressed into service at this stage. The alleged theory of alibi has still to stand the test of scrutiny on the basis of evidence yet to be recorded by the trial Court. Muhammad Shaheen and others u. Arshad Siddique and two others 1997 SCM R 1829 and Safirullah u. The State and another 2003 P.Cr.LJ 1691 (Peshawar).
7. I would like to reproduce Section 497 (2) Cr.P.0 which reads:-- "497 (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided."
If the Court is of the opinion that the case appears to be one which stands covered by subsection
(2) of Section 497 Cr.P.C, then it becomes obligatory on the Court to direct the release of the accused on bail as he becomes entitled to bail as of right and not as a matter of grace and any case law contrary to the statutory provisions cannot be followed.
8. In view of the above facts and circumstances, when there is no material of such a nature which constitute reasonable grounds to make one believe that they are guilty of the offence charged with and when the case stands covered by Section 497 (2) Cr.P.C, I allow this bail application and direct that the petitioner be released on bail provided he furnishes bail bonds in the sum of Rs,500000/- (Five lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.