SHAHID HAMEED DAR, J.---Rehan, the petitioner was arrested on 15-9-2010 in case F.I.R. No, 508, dated 29-9-2009, under sections 302/365-B/201/34, P.P.C., registered at Police Station Murree, District Rawalpindi, on the complaint of Muhammad Safeer.
2. Precisely, the story of F.I.R. as unfurled by the complainant is that his daughter Faiza, aged 18, was attending a telephone call on the cell phone of her mother at about 1-30 a.m. on 23-9-2009 when she suddenly went missing; the complainant kept searching for his lost daughter but could not find her; the complainant showed strong suspicion and belief in the F.I.R. that his daughter had been enticed away on the promise of marriage by Rehan (petitioner) and his unknown accomplices for committing zina with her.
3. The 'dopatta' of the unfortunate missed girl was found on the bank of River Jhelum by her father on 29-9-2010 whereas, the dead body of the ill-fated girl was found from the waters of River Jhelum by her father-complainant on 1-10-2009.
4. The corpse of the deceased lady was subjected to autopsy at THQ Hospital, Murree and during the course of these proceedings the medical officer found ligature marks around the neck ,of the deceased, the hyoid bone was fractured and there was an injury on the trachea as well. According to the necropsy report the medical officer opined that it was a case of asphyxiation/ throttling. He, however, preserved some parts of the internal visccrae in some boxes, which were handed over to the police for onward transmission to the office of the Bacteriologist/ Histopathologist. The medical officer while recording his findings about the death of the deceased, also opined that it was not a case of death by drowning. The vaginal swabs of the deceased lady were also obtained by the medical officer to fetch a report from the office of the Chemical Examiner qua the presence of the spermatozoa, which was received `positive' as the swabs were found stained with semen. The police also went for the DNA test of the petitioner to establish whether or not the petitioner had committed the act of coitus with the ill-fated victim, before she was murdered. According to the report issued by the Center of Excellence in Molecular Biology, Lahore, the vaginal swabs of the deceased victim did not generate any DNA profile, therefore, no comparison could be made with the DNA profile of the accused, so, the above said report is inconclusive.
5. Learned counsel for the petitioner submits that the petitioner has been nominated in the F.I.R. merely as a suspect and no evidence is available to connect him with the allegation contained in the F.I.R.; the complainant has not disclosed the source of his belief as to how he learnt the name of the petitioner as a suspect of this case; after his arrest on 15-9-2010 the petitioner underwent physical remand of 11 days but it did not yield to the recovery of the case property or any incriminating evidence against him; the prosecution is deficient of direct or indirect connecting evidence against the petitioner and the prosecution case against him has not traversed beyond ifs and buts, during the course of investigation; the co-accused of the petitioner, namely, Rizwan-ul- Haq, Shahzad Ahmad and Asad Shamrooz have been admitted to post-arrest bail and the case of the petitioner is not distinguishable from the case of the said co-accused, so, on the dictum of consistency he may be released on ball; the petitioner had not absconded after the registration of the F.I.R. and fake proceedings have been fabricated against him by the prosecution to strengthen its false case; the petitioner was found not involved in the occurrence by the Investigation Officer and his name stands placed in column No,2 of the challan; the petitioner's case is open to further probe within the scope of section 497(2), Cr.P.C., therefore, the alleged abscondence may not impede the grant of bail to the petitioner. Relies upon Mithu Pitafi v. The State (2009 SCM R 299), Muhammad Muqeem alias Muqeem v. The State (2010 PCr.LJ 1479), Muhammad Sadiq v. The State and another (2010 YLR 3070) and Imam Bux v. The State (2009 PCr.LJ 476).
6. The learned DPG assisted by the learned counsel for the complainant has strenuously opposed the grant of bail to the petitioner with the contention that the complainant had a reason to suspect the credentials of the petitioner and it was why he nominated him as an accused in the F.I.R.; the petitioner and his co-accused had committed a barbaric act during the course of which they committed rape upon the poor girl before committed her murder and threw her dead body in the waters of River Jhelum to screen the evidence so as to save themselves from the consequences of the crime committed by them; the medical evidence directly corroborates the versionof the complainant and it shows that she had been callously murdered by the accused; the petitioner absconded after the occurrence and was arrested by the police after about one year of the occurrence, so, being a fugitive from law he may not be deemed entitled for the relief prayed for; the petitioner in the first instance was proceeded against under section 87, Cr.P.C. and a report under section 512, Cr.P.C. had been submitted against him before the learned trial court; the petitioner being a fugitive from law has certainly lost some normal rights guaranteed under the substantive as well as the procedural law; the trial has commenced and the case is at the stage of recording of the prosecution evidence; the accused may not be benefited of the opinion recorded by the Investigation Officer as he was hands in glove with the accused; the petitioner's case is distinguishable from the case of the released co-accused, so, the plea of consistency is not available to the petitioner. Relies upon Awal Gul v. Zawar Khan and others (PLD 1985 SC 402, Sher Ali alias Sheri v. The State (1998 SCM R 190), Meraj v. Gohar Ali and another (2005 PCr.LJ 1269), and Muhammad Asim v. The State (2010 PCr. LJ 771).
7. I have heard the learned counsel for the parties at length and perused the record. Although the facts and circumstances of this case are heart rendering and hair raising but the courts are not moved by the sentiments or emotions. This is the data/evidence collected by the Investigating Officer during the course of investigation, which matters while adjudicating upon the bail plea of an accused. The complainant had expressed his strong belief in the F.I.R. as to the culpability of the petitioner in the instant case but he failed to hint at any source of his information either in the F.I.R. or during the course of investigation. No witness has been recorded by the police during investigation to support the plea of the complainant as to the implication of the petitioner in the instant gruesome and gory incident. The doubt how strong so ever cannot take place of an admissible piece of evidence nor can it be equated with the evidence either direct or circumstantial. The complainant has alleged in the F.I.R. that a telephone call had been received at midnight on the cell phone of his wife whereupon his `daughter Faiza attended the call and in the meanwhile went outside the house, not to be found alive thereafter. The particulars of the said phone-call could not be unearthed by the Investigating Officer. The police has taken into possession the dopatta' and the other parts of the attire of the deceased girl but it can hardly create a nexus between the petitioner and the gruesome offence.
There is another objection against the petitioner that he absconded after the occurrence, he was proceeded against under section 87, Cr.P.C. and a report under section 512, Cr.P.C. had been formulated by the Investigating Officer against him during investigation. There can be no cavil. to the fact that an absconder certainly loses some of his normal rights guaranteed both under the substantive and the procedural law but the fact remains that the evidence qua the abscondence of an accused is always corroboratory in nature. Different persons have been differently constituted by Allah Almighty with variant chemistry. Even an innocent person(s) out of fear of the police or that of being caught may run away to save his life instead of facing the situation in a manlike manner. It depends upon the inborn qualities and genes of an individual, which render a person brave or timid. It has been so held by the apex Court of the country as well as by this Court on many occasions that notwithstanding the abscondence, an accused may be found entitled to grant of bail if his case otherwise fell within the scope of further inquiry as contemplated under section 497 (2), Cr.P.C. The commencement of the trial may not be relevant at this stage nor it can be considered as an impediment for grant of bail to the petitioner in view of the principle laid down in case titled Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). The petitioner has been found not involved in the occurrence during the course of investigation and stands named in column No,2 of the challan. Prima facie, there are reasonable grounds to believe that the case of the petitioner calls for further inquiry into his guilt within the meaning of section 497(2), Cr.P.C.
8. For what has been discussed above, I accept this application and admit the petitioner to post- arrest bail subject to furnishing bail bonds in the sum Rs,1,00,000 (Rupees one hundred thousand) each with two sureties each in the -like amount to the satisfaction of the learned trial Court.
9. Before parting with this order, it is clarified that the observations made hereinabove are tentative in nature and shall have no bearing upon the merits of the case/trial.