' ATTAULLAH KHAN, J.---On 13-12-2009, at 1900 hours Naveed Khan, the then complainant lodged a report in the DHQ Hospital, Mansehra, to the effect that when he reached the place of occurrence situated near Pathan Colony Jhangi. Saidan, at about 6-30 A.M., Liaqat son of Esa Khan, Shamrez son of Yaqoob and Ishfaq son of Shamrez deboarded from a car, duly armed with Kalashnikov.
Ishfaq asked the complainant party not to move and in the meanwhile Shamrez opened fire at the complainant and his companion Malik Sajid, with which complainant got injured while Malik Sajid was also hit with the fire shots of Liaqat and Shamrez. According to the F.I.R., Liaqat was seen by Khaista Jan and Khalid Khan. Motive shown in the F.I.R. Is a dispute over landed property.
2. It is, pointed out that after six days of the occurrence supplementary statements of Manzoor Hussain, uncle of the deceased, Wahid Saleem and Nisar Ahmad were recorded. Similarly on 21-12- 2009, statement of widow of the deceased was recorded. All of them charged the complainant for the occurrence. On the same date, statement under section 164 Cr.P.C. Was also recorded, in which widow of the deceased charged the present petitioner along with three other co-accused.
Thereafter the complainant was arrayed as accused in the case.
3. After refusal of bail by the courts below, the petitioner has filed the instant petition for the grant of bail.
4. Learned counsel for the parties were heard at length. My discussion is as under:--
5. Learned counsel for the petitioner contended that there is no material on file for arraying the petitioner as accused. The petitioner was complainant in the case. He further submitted that there is no ocular evidence in the circumstances including last seen evidence against the petitioner.
Further contended that the accused was charged in supplementary statement by widow of the deceased after 6/7 days, which is doubtful. It is further submitted that the widow of the deceased has not disclosed the source of information. His last argument is that the bail cancellation petition against the co-accused, who were granted bail, has been rejected by this. Court.
6. Learned counsel for the respondent submitted that there is last seen evidence, connecting the accused with the occurrence. According to him the accused remained absconder, therefore: has lost rights for bail. He further argued that injury on the body of the complainant is self-inflicted. Last argument is that though co-accused was released on bail, but principle of consistency would not be attracted to the present, case because the role of the petitioner is different.
7. As stated above in the F.I.R. The petitioner was himself complainant. During the occurrence he also suffered an injury, which is supported by the medical evidence. At present, on the record there is no material to array the complainant/ petitioner as accused. There is no ocular evidence and nobody has deposed against him. Nobody has seen him at the time of occurrence. The petitioner is charged as an accused after 6/7 days of the occurrence and this long period is sufficient to make the case of the petitioner arguable for the purpose bail. I may rely upon 2011 SCM R 161, wherein it is held:-- "It is an admitted fact that name of the petitioner is not mentioned in the F . I. R. But his name was included in the list of accused in supplementary statement. There is no explanation available in this regard, therefore, the case of the petitioner falls under the category of further inquiry. See Tahir Abbas v. The State (2003 SCM R 426). Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497 Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in. Such cases where challan is submitted should not be bar to refuse a right. See Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It is also settled principle of law that observations made by superior courts dealing with the bail matter are always tentative in nature."
8. Next point for determination is release of co-accused on bail, against which cancellation has been refused by this court. The role of the present petitioner is not different from the accused, who were released on bail, therefore, principle of consistency favours his case.
9. Moreover, though the accused-petitioner remained absconder for some period but this fact would be immaterial in the event his case is made out for bail on merit. Abscondence alone would not dis B entitle him from bail if incriminating material are not available against an accused. I may rely on 2009 SCM R 299, wherein it is held:-- "Learned High Court of Sindh as well as learned trial Court has rejected the bail of petitioner on account of absconsion and not on merit. It is well-settled principle of law that bail can be granted if an accused has good case for bail on merit and mere absconsion would not come in way while granting the bail. We are, prima facie, of the view that the learned High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner."
The case in hand is, of similar nature as reported in the above authority, therefore, case of the accuse is fit for grant of bail.
10. It. Is a case of two versions. One is that deceased was hit with the fire shot of accused mentioned in the F.I.R. While in the company of the complainant and in the said incident the complainant lodged report other version developed after 6/7 days is that the occurrence has been committed by the present petitioner. Both the versions are to be put to test during trial and thereafter one to be accepted. So the controversies in this case have made the case of the petitioner as of further inquiry. I rely upon PLD 2009 SC 58, wherein it is held:-- "In case of counter versions arising from the same incident, one given by complainant in F.I.R. And the other given by the opposite party, case law is almost settled that such cases are covered for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. In such case normally, bail is granted on the ground of further enquiry for the reasons, that the question as to which version is correct is to be decided by the trial court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard. In cases of count versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed. In the Case, of Fazal Muhammad v. Ali Ahmad (1976 SCM R 391) in cross cases the High Court granted bail to the accused on the ground that there was probability of counter version being true as some of the accused had received injuries including grievous injury on the head of one accused. It was held by this court that in such circumstances the High Court was right in granting bail and no interference was warranted. In the same context, reference can be made to the case of Mst.Shafiqan v. Hashim Ali and others (1972 SCM R 682)."
11. In short, there is no ocular evidence against the accused-petitioner. He is named as accused after 6/7 days of the occurrence. The co-accused are on bail and having the same role, the accused is entitled for the same concession. Moreover, it is a case of controversy and it is yet to be decided as to which one is correct. Abscondence alone would not disentitle the accused for the concession of bail, if further material is not available.
' Keeping in view the above discussion, I am of the opinion that the accused-petitioner is entitled to bail. Resultantly, this bail application is accepted and he is directed to be released, on bail on furnishing bail bonds in the sum of Rs,2,00,000 (rupees two lac), with two sureties, each in the like amount, to the satisfaction of Illaqa/Duty Judicial Magistrate. The sureties shall be reliable and men of means. This bail order shall not affect the merit of the case. Bail petition allowed.