ATTAULLAH KHAN, J.---Zafar Ali Khan, accused/petitioner has filed this petition for his release on bail after failing to secure the same from the lower forum.
2. The accused-petitioner named above is charged in case F.I.R. No.110 dated 4-8-2010 of Police Station Dadiwala, District Lakki Marwat under sections 365/34, P.P.C.
3. Arguments heard and record perused.
4. Record reveals that instant F.I.R was registered on 4-8-2010 on the basis of daily diary dated 15- 6-2010. Report was made by Abdul Khaliq son of Muhammad Akbar.
5. According to the complainant, his brother Muhammad Nawaz was abducted while on motorcycle. When the said Muhammad Nawaz did not return to his house, complainant traced him but could not found him. He expressed his suspicion about the abduction of his brother by Zafar Ali Khan, the present accused-petitioner, with whom he had some ill will regarding a police report lodged against him. In the daily diary he charged Zafar Ali Khan and Attif-ur-Rahman for the abduction of his brother. The police interrogated the case and thereafter a proper F.I.R was lodged.
During investigation on 6-8-2010 the abductee was recovered by the police party from a house owned by one Ghani. The recovery was witnessed by Waheed Ullah S.H.O and one Abdul Khalique son of Muhammad Akbar Khan, who is complainant in this case also.
6. The learned counsel for the petitioner argued that no evidence is available to connect the accused-petitioner with the offence. He filed copy of an application submitted by the police to the Magistrate for remand of one Attif-ur-Rahman, co-accused. The learned counsel referred to the order of Magistrate on its back and contended that in fact the recovery of abductee was not effected on 6-8-2010 but after 7-8-2010 on which date application for custody was made and according to the order of the Magistrate the custody was granted to the local police for five days in order to recover the abductee. This order of Magistrate has made the recovery as doubtful because had the abductee been recovered on 6-8-2010, then on 7-8-2010 the Magistrate would not have ordered the custody for the recovery of abductee. So this fact has also made the case of the accused-petitioner arguable for the purpose of bail.
7. Another fact to be taken into consideration is that the two co-accused have been released on bail by the Court of learned Judicial Magistrate, Lakki Marwat on 16-8-2010 against which a cancellation application was moved but the same was rejected by learned Additional Sessions Judge-II, Lakki dated 2-11-2010. The case of the present accused-petitioner is at par with his co- accused, who are on bail, therefore, the principle of consistency demands that bail be granted to the present accused-petitioner. After the recovery of the abductee he was examined by the police under section 161, Cr.P.C. But the record is silent as to whether his statement was recorded under section 161, Cr.P.C. By the Magistrate or not. It is an abduction case and his statement before the Magistrate was necessary. This failure on the part of prosecution also favours that petitioner's plea for bail.
8. Moreover, at the initial stage the accused-petitioner was named on the basis of suspicion.
Except statement of abductee that too under section 161 Cr.P.C, there is no other ocular evidence at present, to connect the accused with the abduction of the abductee.
9. Perusal of record reveals that there is also some delay which has not properly been explained by the complainant.
10. Keeping in view of the above mentioned facts, I am of the opinion that the accused-petitioner is entitled to the concession of bail, therefore, his bail petition is accepted and he be released on bail provided he furnishes bail bonds in the sum of Rs.1,00,000 (one lac only) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall see that the sureties are local, reliable and men of means.