' YAHYA AFRIDI, J.---Mir Dil Khan son of Moeen Khan, accused-petitioner, seeks his post arrest bail in case FIR No,251 dated 10.4.2005, for offences chargeable under sections 302/324/34 of Pakistan Penal Code, 1860, ("P.P.C."), registered in Police Station, Doaba, District Hangu, ("FIR").
2. Learned counsel for the petitioner contended that the accused-petitioner, as per CNIC, is aged about 74 years; that the accused-petitioner along with three other co-accused were charged in FIR, and co-accused Samiullah after facing trial has been acquitted by this Co;._., vide order dated 19.1.2012; that the accused-petitioner has been attributed the role of 'Lalkara' and firing with no specific injury or description of weapon has been attributed to him; that there are no reasonable grounds to connect the accused-petitioner with the commission of the crime, hence a case for further inquiry is made out. Learned counsel for the petitioner placed reliance on Qamar's case (PLD 2012 SC 222), Ehsanullah's case (2012 SCMR 1137), Ikram-ul-Haq's case (2012 SCMR 1273), Chairman NAB's case (2016 SCMR 676), Malik Mukhtar Ahmad Awan's case (1991 SCMR 322), Mitho Pitafi's case (2009 SCMR 299), Mukhtiar's case (2013 YLR 42), un-reported judgments in Cr. Misc.
No,1394-P/2016, Cr. Misc. No, 849/2004, Cr. Misc. No,181/1999 and Cr. Misc. No, 1033 of 2002.
3. Learned Additional Advocate General assisted by learned counsel for the complainant vehemently opposed the bail petition by contending that the accused-petitioner has been directly charged in the FIR, coupled with his long noticeable and unexplained abscondance of eleven years, a prima facie case exists against the accused-petitioner and he is not entitled to the concession of bail. Learned counsel for the complainant placed reliance on Said Muhammad's case (2014 MLD 437), Ibrahim's case (1985 SCMR 382), Muhammad Sadiq's case (PLD 1985 SC 182), Sardar's case (PLD 1979 Peshawar 16), Zafar Hussain's case (2014 SCMR 1591), Lal Zameen's case (2010 YLR 1496), Painda Khan's case (2014 MLD 14), Nowshad Khan's case (2009 YLR 2123) and Gul Babrai Khan's case (2010 PCr.LJ 1330).
4. Valuable arguments of the learned counsel for the parties were heard and the record perused with their able assistance.
5. Before this Court considers the factual merits of the present case, it would be appropriate to first address the most contested contention of the parties; the long unexplained abscondence of the present petitioner and its legal implication upon the plea for post arrest bail of the petitioner.
6. The counsel for the petitioner contends that the petitioner cannot be denied bail solely on this ground, while the worthy counsel for the complainant and ably supported by the worthy State counsel asserts otherwise.
7. Canvassing the judicial precedents of our superior Courts, it is noted that the views on abscondence of an accused, while seeking post-arrest bail, has varied with time. In this regard, some of the celebrated judgments of the apex Court on the issue in hand require consideration; ' In Ibrahim's case (1985 SCMR 382), the Supreme Court, while discussing the bail application of an abscondor in a criminal case held that; "It may straightaway be remarked that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have, during his abscondence, beenacquitted on consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf. However, it is correct that in some rare cases notwithstanding abscondence the accused might be released on bail, for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr. P. C. And/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence ' This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that "there are no reasonable grounds for believing that the accused has committed non-bailable offence". Without such finding by such Officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding. That being so the respondent could not be released on bail on ground of so-called further inquiry under subsection (2) of section 497, Cr. P. C. "
(emphasis provided)
' The above opinion of the worthy apex Court was reaffirmed in Muhammad Sadiq's case (PLD 1985 SC 182) in terms that; "But as regards the other question viz the effect of abscondence of the accused for a period of six months on their right to obtain bail we feel that this question has not been given due attention by the learned Judge in his order. The effect of abscondence, as explained by this Court in its two recent judgments, is that to person becoming a fugitive from law loses some of the normal rights granted to accused persons by the procedural as also substantive law and disentitles himself to the concession of bail notwithstanding the merits of his case, unless he can satisfactorily explain the period of his abscondence."
(emphasis provided)
' It is interesting to note that the views of the apex Court on abscondence of an accused seeking bail became milder, while deciding the case of Malik Mukhtar Ahmed Awan's case (1991 SCMR 322), wherein the strict rule of denying bail to an accused on the ground of abscondence, notwithstanding the merits of the case, was not considered as an absolute rule. The apex Court observed that; "Rule is not absolute that a fugitive from law under no circumstances be enlarged on bail, although abscondence does constitute a factor while examining question of bail."
' The above view was endorsed by the apex Court in Mitho Pitafi case (2009 SCMR 299), wherein the apex Court 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 ascension would not come in way while granting the bail."
' More recently, the apex Court in Ihsanullah's case, while interpreting the provision of section 497(2) of Cr.P.C. And dilating upon the earlier pronouncements of the apex Court in Ibrahim's case, Muhammad Sadiq's case (supra) and Qamar alias Mitho's case (PLD 2012 SC 222), held, inter alia, that mere abscondence of an accused person would not be sufficient to refuse him bail. The above principle, the apex Court eloquently explained in terms that; "It has vehemently been argued by the learned Additional Prosecutor-General, Punjab appearing for the State as well as the learned counsel for the complainant that the petitioner had remained a proclaimed offender for over one year after registration of this case and, thus, he is not entitled to the concession of bail. We have, however, remained unable to subscribe to this submission because it has already been observed by us above that the case against the petitioner calls for further inquiry into his guilt. It is settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and not by way of grace on concession and in such a case mere absconsion of the relevant accused person may not be sufficient to refuse bail to him."
(emphasis provided)
Keeping in view the ratio decedendi of the aforementioned recent decisions of the apex Court, it would be safe dispensation of criminal justice to repel the contention of the worthy counsel for the complainant and the State counsel to refuse bail to the present petitioner solely on the ground of his long unexplained absconsion. Accordingly, the decisions cited by the worthy counsel in support of their contention could not be relied upon in view of the direct and clear pronouncements of the apex Court.
8. Now to the facts of the present case, what this Court has to consider, while deciding the case of the petitioner for his post-arrest bail, is whether the prosecution case against the petitioner calls reasonable ground in doubting his role in commission of the offence and thereby warranting further inquiry into his guilt or otherwise. In case of the former, bail is to be granted, as a matter of right, and not by way of a grace.
9. Lest this Court passes any findings, which may prejudice the case of the parties during trial, suffice it to state that according to the FIR the petitioner role is of making the "Lalkara" and being one of the four, who fired at the deceased, without any one being specifically charged for the effective fire, which resulted in being fatal; this is coupled with the fact that the nature and number of entry wounds on the deceased, and the empties recovered from the spot require further explanation by the prosecution to establish that it was not the doing of one person but more, which can best be done by producing evidence in support thereof, during the trial. Moreover, the admitted advance age of the petitioner would also play a crucial role in bringing the case of the petitioner, at least at this stage, warranting 'further inquiry' of his guilt in committing the crime, as envisaged in section 497 of Cr.P.C. This being the position, the petitioner is entitled to his post arrest bail, which cannot be withheld solely on the basis of his long unexplained absconsion.
10. Before parting, this Court finds it necessary to remind the trial Court that the observations rendered by the High Court, while disposing of bail applications are not to be considered during the trial of the accused. In this regard, the august Supreme Court of Pakistan in Shuaib Mehmood Butt v. Iftekharul Haq (1996 SCMR 1854), has rendered clear guidance, which is to the effect that:- "However, we would like to point out in no certain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial Court, which is free to appraise the evidence strictly according to its merits and the law at the time of disposal of the case, which of course it is needless to say, is the function of the trial Court."
11. Consequently, this bail application is accepted and Mir Dil Khan, accused-petitioner is allowed bail in the sum of Rs,100,000/- (one lac), with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.
12. The above are the reasons for short order of this Court dated 15.07.2016.
' In case the accused-petitioner delays the proceedings of the trial or abuses the process of law in any manner, the complainant party would be at liberty to move before trial Court for recalling the concession of to the accused-petitioner.