ABDUL LATIF KHAN, J:- Petitioner Anwar Khan seeks post arrest bail in case FIR No.403 dated 10.09.2014, registered u/s 365 PPC, at P.S. Tangi, Charsadda.
2. As per prosecution case, the complainant Naeem lodged report to the local police against petitioner and co-accused for abduction of his uncle Zakir s/o Tila Muhammad in a motorcar who had gone to Tangi Moar for purchasing household articles and shifted him to tribal territory.
Consequently on the basis of his report, instant FIR was registered against the accused.
Arguments heard record perused.
3. Though petitioner is directly charged by complainant for abduction of his uncle Zakir Ullah but he did not mention his source of satisfaction regarding abduction of his uncle by the petitioner as complainant was not present with the abductee at relevant time. He only mentioned that the peoples present on the spot at relevant time had witnessed the occurrence but he did not mention the names of those persons who witnessed the occurrence. Lateron one Rewas Khan was introduced as eye witness of the occurrence in the instant case in order to strengthen the prosecution case though his name has not been mentioned in the initial report (FIR) which makes the case of petitioner that of further inquiry u/s 497(2) Cr.PC.
4. The abductee has also not been recovered from the immediate possession/ custody of the petitioner rather he allegedly ran away from the clutches of accused which story is not appealable in the present situation when there exists blood fued enmity between the parties therefore, false implication of petitioner by complainant party cannot be ruled out.
5. It is very strange to observe that complainant is not eye witness of the occurrence but even then the site plan has been prepared at his instance and alleged eye witness Rewas Khan whose name was not mentioned in the FIR and lateron introduced by the prosecution support of its case which makes the prosecution case doubtful. Despite alleged release of abductee from the clutches of accused, no amendment/addition through abductee has been made by the prosecution in the site plan which also makes the case of petitioner of further inquiry.
6. The offence with which the petitioner is charged carries punishment less than 10 years which is not hit by the prohibitory clause of Section 497(1) Cr.PC and in view of the judgment rendered in the case of Tariq Bashir and 5 others..Vs..The State (PLD 1995 Supreme Court 34), in all the cases which are not punishable with 10 years imprisonment or above, grant of bail is a rule and refusal is an exception.
7. So far as abscondence of petitioner is concerned, prosecution cannot seek support from factum of abscondence of accused when eyewitnesses have not established their presence at the spot and their testimonies have been disbelieved being pregnant of doubts and suffering from material contradictions. Mere abscosion is not a conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view over all facts of the case. Mere abscondence of accused could not be made the basis for his conviction as accused could run away due to fear or suspicious circumstances. No doubt, abscondence is a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence. Reliance placed on case titled "Rohtas Khan Vs the State" (2010 SCMR 566), "Rahimullah Jan Vs Kashif and another" (PLD 2008 Supreme Court 298).
8. Despite remaining in police custody neither the petitioner has made any confession before the competent Court. Petitioner is behind the bar since his arrest and is no more required to the local police for further investigation therefore keeping him behind the bar would serve no useful purpose.
9. In view of what has been observed above, this petition is allowed and the petitioner is admitted to bail subject to furnishing bail bond to the tune of Rs.5,00,000/- (Five Lac) with two sureties each in the like amount to the satisfaction of trial Court concerned, who shall ensure that the sureties are local, reliable and men of means.