' ATTAULLAH KHAN, J.---Petitioners, namely, Tariq, Khalid and Amanullah, having failed to secure their release on bail in the lower Court, have approached this Court for seeking the same relief.
2. Facts as narrated in the F.I.R. Are that on 30-5-1995 at 2230 hours complainant Alamgir with the help of other co-villagers, namely, Abdul Salam, Qayum Khan and Fatehullah, brought the dead body of deceased Azizullah (brother of complainant) to the Police Station, Kulachi and reported the matter to the police that he is Assistant Lineman in WAPDA Department and posted at Daraban Kalan. At evening time he received telephonic message from his cousin namely Abdus Salam Khan asking him to reach to his home. After receiving this information he immediately rushed to his house. On reaching there he found his brother namely Abdul Aziz lying dead and his mother told him all the story. That at degar vela deceased Abdul Aziz went to Masjid for offering prayer when he reached near Primary School, the accused Tura Baz Bashir, Tariq, Khalid, Amanullah and Salim armed with Kalashnikovs appeared and started firing upon the deceased who was hit and fell on the ground and died there and, then. After the occurrence the accused decamped from the spot and the occurrence was witnessed by his mother who was coming from the house of his (complainant) brother namely Aslam to her house. The motive as mentioned in the F.I.R. Is previous blood feud and dispute over landed property and on his report case F.I.R. No.69 dated 30-5-1995 under sections 302/148/149, P. P. C . Was registered at Police Station, Kulachi District D.I. Khan.
3. Learned counsel for the accused/ petitioners contended that there is no ocular evidence against the accused/petitioners and the entire case rests upon solitary statement of mother of the deceased, which too is hearsay. He further argued that one of the co-accused, namely, Tura Baz has been acquitted by the trial Court on 30-4-2007, therefore, the case of the accused/ petitioners would be on the same footing and no purpose would be served if the accused/petitioners remain in jail. According to learned counsel of accused/ petitioners only evidence against the accused/petitioners is abscontion which cannot be considered a hindrance in his release on bail.
4. On the other hand, learned State counsel assisted by learned counsel for complainant argued that the accused/ petitioners are directly charged in the F.I.R. And the occurrence is witnessed by mother of the deceased. He further submitted that the accused/petitioners remained absconder for long period without any explanation, therefore, they are not entitled to concession of bail.
5. Arguments heard and record perused.
6. The occurrence took place at 1830 hours while the report was lodged on 2230 hours. Thus there is a 'delay of four hours. No explanation has been given for this delay in the P.1.R. I would first discuss the plea of delay in lodging of report. At page 10 of the judgment of the trial Court comments have been recorded in respect of delay. The relevant observation recorded by trial Court is reproduced below:-- "The perusal of record would show that the occurrence took place on 30-5-1995 at about 1830 hours and the matter was reported to the local police at 2230 hours which_ shows that there is a delay of four hours. The delay has not plausibly been explained by the complainant."
7. Keeping in view the observation of the trial Court and the circumstances, this delay has made the case of accused/ petitioners as arguable for the purpose of bail. Moreover, several persons charged for committing the murder of one persona No specific role has been attributed to the present accused/petitioners. This fact also favours the grant of bail to the accused/ petitioners.
The only material against the accused/petitioners is their long abscontion. Learned counsel for the accused/petitioners rely upon 1992 PCr.LJ 409, wherein it is held that absondance of accused will not operate is an absolute bar against,the claim of bail pending trial in cases falling within the prohibitory clause of section 497, Cr.P.C. He also rely upon 2009 SCM R 299, wherein it is held that 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. Similar principle has been held by this Court in case reported in 2008 PCr.LJ 726.
8. In short the F. .R. Is lodged with the delay of four hours. The delay has not been properly explained. No specific rule is attributed to the accused/petitioners. One of the co-accused having similar role has been acquitted by the trial Court against which the appeal.Is also dismissed by this Court. The same evidence would be recorded against the present accused/petitioners with the same result and there is every likelihood of their acquittal. Only material against the accused/petitioners is their long absconsion. Though the absconsion is a circumstance against the accused/petitioners coupled with other material against them. If the case is not made out on merits then the absconsion may be ignored.
9. In the light of the above circumstances, the case of accused/ petitioner requires further inquiry into his guilt. Therefore, he is allowed to be released on bail provided he furnishes bail bonds in the sum of Rs.2,00,000 (two lacs) with two sureties, each in the like amount to the satisfaction of Illaqa/Duty Magistrate, D.1 Khan. The sureties must be local, reliable and men of sufficient means.