1. WAQAR AHMAD SETH,J:- Having failed to obtain the concession of bail from the two Courts below in case FIR No.590 dated 15/10/2008 under section 302/34 PPC registered at Police Station Gulbahar (Peshawar), the accused-petitioner Khushal has approached this Court for the said concession.
2. 2- Brief facts of the case are that on 15/10/2008 at 23.15 hours complainant Shah Rangzeb brought the dead body of his deceased brother Alamzeb to the Police Station where he made a report to the police to the effect that on the same day at 22.00 hours he alongwith Aziz was present at "Doura Road", meanwhile his deceased brother Alamzeb was coming in his Motor Car and when reached near them, another Motor Car in which Abdur Rauf and Khushal were sitting, chasing the Motor Car of his brother, started firing at him as a result of which his brother got hit and injured and after the commission of offence they decamped from the spot. Alamzeb succumbed to his injuries on the way to the Hospitals. There were two disputes between the parties i.e one over a shop with accused Abdur Rauf and the other over a Motor Car with accused Khushal.
3. 3- I have heard the learned counsel for the parties and have also gone through the record of the case.
4. 4- It is settled legal position that neither elaborate nor deep assessment of the evidence nor detailed discussion on various items of evidence which the prosecution intends to produce at the trial is advisable at bail stage. However, provisional and tentative sifting of the evidence is not prohibited. It can also not be denied that whatever is alleged in the F.I.R. cannot, in all cases, be taken as conclusive or gospel truth. If the allegations in the F.I.R. are prima facie negatived by the other materials patent on record then that can also be taken into consideration and it would not be advisable and just to ignore these materials on account of the direct charge in the F.I.R. If such defects and doubts in the prosecution case are pointed out at the time of arguments, even at bail stage, then those cannot be totally ignored merely because the accused is directly charged in the F.I.R. but these can be kept in view qua the charge in the F.I.R. and tentative assessment of these defects can be made even at bail stage. It has been repeatedly held by superior Courts that any observation at the time of disposal of bail application would not affect the further course of the case at the trial as those observations would be only tentative in nature and would be confined to the question of the determination of the bail application.
5. 5- After perusal of the record and without going into the deep merits of the case, it reveals that in the instant case, two persons including the accused-petitioner have been charged for firing upon the deceased Alamzeb as a result of which he was hit and while taking to the hospital succumbed to his injuries. It is worth mention here that co-accused of the accused-petitioner namely Abdur Rauf charged with similar role has been acquitted by the learned Additional Sessions Judge-III, Peshawar on the basis of compromise between the parties vide judgment dated 16/07/2009.
6. Record further reveals that there is a cross case FIR No.591 of the same day lodged by one Lawangeen against Shah Rangzeb complainant and Alamzeb deceased in the instant case where the time of occurrence is the same which has been given in the instant case and the accused in the connected case FIR No.591 have already been acquitted by the learned Additional Sessions Judge-III, Peshawar vide his judgment dated 14/05/2010. The only circumstance available against the accused-petitioner is his alleged abscondance. True that abscondance is not only a relevant factor but some time it may become a bar in the way of grant of bail and abscondance alone cannot be made a ground for withholding bail to an accused if the case otherwise falls within the category of being of further inquiry and it has been unanimously held by the superior courts that it is not absolute rule that a fugitive from law should not be enlarged on bail. Abscondance is not conclusive proof of guilt of an accused unless other materials are available on record to connect him with the commission of offence and it is only a suspicious circumstance against him. It was also held by the superior courts that once the case becomes one of further inquiry, then abscondance alone shall not operate as an absolute bar in the way of grant of bail to an accused person.
7. 6- In view of the aforesaid discussion, there appear no reasonable grounds for believing that the accused-petitioner is connected with the commission of offence but there are reasonable grounds for believing that his case requires further probe. Thus, his case comes within the purview of sub section (2) of section 497 Cr.P.C. entitling him the concession of bail even if the punishment for the offence in question is death or imprisonment for life.
8. 7- Resultantly, this bail application is accepted and the accused-petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs.5,00,000/- (rupees Five Lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate. The sureties must be local, reliable and men of means.
9. 8- Before parting with this order, I must clarify the observations made above are tentative in nature and shall not prejudice the case of either side at the trial stage.
10. The above are the reasons of my short order of even date.