' SHAHID HAMEED DAR, J.---The complainant, Niyaz Muhammad has alleged in the FIR that his behnoi, Moman Khan was confined in jail in a murder case; to see her imprisoned husband, his sister Mst. Zaro Bibi along with her daughter Mst. Nosheen Bibi alias Noshi went to District Jail Attock on 27-2-2012 but they did not return home for a considerable period of time; he along with others started searching for them and learnt on 29-2-2012 that they had been forcibly abducted and taken away in their cars, at about 5:00 p.m. On 27-2-2012 by Sarwar Khan alias Lala (petitioner) and five others; the search operation launched by them led to the recovery of the dead-bodies of the missing ladies at about' 4:00 p.m. On 29-2-2012 from a far off/deserted nullah, with firearm injuries on their heads; the motive behind the occurrence pertained to a couple of previous criminal cases which were pending trial and in one of them, case FIR No.155/2011 dated 25-3-2011 under section 365-B, P.P.C. Police station Hazro, Mst. Nosheen Bibi alias Noshi was supposed to testify against the accused and for this reason she along with her mother Mst. Zaro had been abducted and murdered by the accused.
2. Learned counsel for the petitioner submits that there is inordinate delay of two days in reporting the crime to the police which has not been explained by, the complainant in any manner; the eyewitnesses regarding abduction of the deceased-ladies have not been cited in the FIR despite they happened to be close relation to the complainant; the witness of Wajtakkar evidence namely Sajid also does not figure anywhere in the FIR; it is a case of no evidence agathst the petitioner and he has been languishing in jail for many months despite being innocent; the petitioner's case calls for further probe into his guilt within the mischief of section 497(2), Cr.P.C, hence; his so called abscondence may not impede his quest for bail.
3. On the other hand, learned Assistant District Public Prosecutor assisted by learned counsel for the complainant opposes this petition with the contention that the poor-ladies, who are mother and daughter inter se, have been callously murdered by the accused only for the reason that one of them, Mst. Nosheen Bibi alias Noshi was supposed to tender evidence against them in near future; the prosecution case brims with connecting circumstantial evidence against the petitioner and chain of events is complete in all respects, creating a close link between the crime and the accused; the petitioner led to the recovery of pistol .30 bore on 8-12-2013, which gathers importance, as investigating officer collected three spent bullets of the same caliber during spot inspection; lastly submits that the petitioner remained an absconder in this case for more than a year and his unexplained abscondence would result in loss of some of his normal rights guaranteed under the substantive law as well as the procedural law.
4. After hearing learned counsel for the parties and perusing the record, it is observed that heart bleeds when one looks at the tragic end of the poor ladies, but it has to be remembered that courts are not driven by the emotional sentiments and it is the data available alone, which matters most, while considering question of bail of an under-trial prisoner. The complainant has alleged in the FIR that he along with his brother Said Muhammad and maternal nephew Aadat Khan searched for the missing ladies and in the process they learnt on 29-2-2012 that they had been forcibly abducted on 27-2-2012 by Sarwar Khan alias Lala (petitioner) and his co-accused, who drove them away in their cars. The complainant did not disclose the source through which he gathered the said knowledge nor did he cite any witness in this regard in the FIR. He, however, produced two witnesses, Syed Rustam Shah and. Mst. Fatima Bibi, brother and sister inter se, before the investigating officer on 29-2-2012, who while rendering statements under section 161, Cr.P.C.
Categorically admitted their close relationship with the ill-fated ladies and alleged that both of them had been abducted, within their view, by Sarwar Khan alias Lala (petitioner) and his five co- accused on 27-2-2012. They did not offer any explanation as to why they kept this fact hidden from the complainant for two days despite being residents of the same village. The said witnesses told in their statements that Zaro Bibi was the wife of their maternal uncle (Mamani) and Mst. Nosheen Bibi alias Noshi was her daughter. It itches the mind, why they kept quiet for two long days over the incident of their kindred ladies' abduction by the accused-petitioner and his co-accused. The complainant is the resident of village Bahadur Khan (Attock) and both of the eyewitnesses also hailed from the same village. It is hard to digest that they allegedly witnessed the incident of abduction of the ill-starred females and they silently went back to their home, instead of making it to the house of the complainant to break this news to him and stay back till such time, that they would be murdered by their captors, before they would open their lips. The witness of Wajtakkar evidence, Sajid son of Noor Elahi is also resident of the same village, who allegedly saw the accused-petitioner and his co-accused emerging from the fields being armed with firearms, at about 3.00 p.m. On 29-2-2012 and he informed the complainant accordingly. The postmortem examination on the dead bodies of the deceased-persons was conducted at 6.30 p.m. And 7.00 p.m. On 29-2-2012, about three hours after the allegid emergence of the accused from the said fields, the same day, but woman medical officer recorded in the necropsy reports that probable time, elapsed between death and the postmortem examination was "within 24 hours" and rigor- mortis on the dead bodies had developed. The time mentioned by the witness of Wajtakkar evidence in his statement under section 161, Cr.P.C. Does not truly co-relate with the timings, recorded by the woman medical officer in the postmortem examination reports. Even otherwise, evidence of Watjakkar is a weak incriminating circumstance, which may easily be maneuvered by the prosecution, wherever direct connecting evidence against an accused does not come their way. The petitioner is not linked with the motive-incident case in any manner, which fact is also admitted by the learned Assistant District Public Prosecutor as well as by the learned counsel for the complainant. The probability cannot be ruled out that the petitioner may have been falsely involved in this case by the complainant on account of his close relationship with his co-accused.
5. So Far as the factum of abscondence of the accused-petitioner concerned, suffice it to say, it would have no relevance at this stage, as his case calls for further probe into his guilt, within the scope of section 497(2), Cr.P.C. It has been held in Ehsan Ullah v. The State (2012 SCM R 1137 Ikram- ul-Haq v. Raja Naveed Sabir and others (2012 SCM R 1273) and Mitho Pitafi v. The State (2009 SCM R 299) that mere abscondence of an accused may not be sufficient to refuse bail to him, if, on the basis of other circumstances, the case called for further inquiry into his guilt and in such a situation, bail should be allowed to him as a matter of right and not by way of grace or concession.
It has also been held by the apex court that bail was sometimes refused to an accused on account of his abscondence, but such a refusal proceeded primarily upon the question of propriety and if question of propriety was confronted with the question of right of an accused, the former had to give way to the latter. It was so held by the apex court in Mithu Pitafi's case (ibid) 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." Mere abscondence of an accused may not be deemed sufficient to refuse bail to him, if'his case called for further probe into his guilt within the scope of section 497(2), Cr.P.C. A reference in this respect may be made to Ehsan Ullah's case (ibid). The petitioner's case is no exception, being fully covered by the above- noted illustrious judgments of the apex court.
6. For the discussion supra, this application is allowed and the petitioner is granted post-arrest bail subject to furnishing bail bonds in the sum of Rs.5,00,000 (five lacs) with two sureties each in the like amount to the satisfaction of the learned trial court.