MALIK HAQ NAWAZ, J.---The petitioner was booked for the above offences vide FIR No,270/2009 of Police Station City Gilgit registered under sections 302/34/188, P.P.C. read with sections 6/7 of ATA- 1997 and 13 A.O. vide FIR No,06/2016 registered at Police Station Basin Gilgit.
2. The brief facts of the case are that complainant Mirza Hassan thdged FIR, stating therein that on the fateful day at about 1500 hrs, while grazing cow in his field, he heard hue and cries and saw that some boys were picking up quarrel with each other. After a while he heard noise of firing and simultaneously the random firing started. As a result of firing his son Kamran Hussain got injured and fell on the ground. He rushed towards his son but before his arrival PWs Safdar Hussain and Mehdi, have already reached there, who boarded his son in a vehicle but due to indiscriminative firing, the injured could not be removed to hospital and was brought back. He was put on a motorbike and from an unmattled road he was put in a police van for treatment to DHQ hospital but due to the nature of injuries, he died on the way. The complainant stated that he has no enmity with any one and the murder was committed due to sectarian violence, which was prevailing in the area.
3. The petitioner along with his co-accused namely Bader, Munir, Zainul Abdin, Wajahat and Mujahid Ali were booked for the murder of deceased. All the above mentioned co-accused were released on bail by this Court. The petitioner remained absconder and was arrested after a long time of about 6/7 years. The petitioner applied for bail before the learned trial Judge which was refused vide order 13.07.2016. Being dissatisfied from the order of trial Court, the petitioner has approached this Court for grant of bail.
4. The learned counsel for the petitioner submitted at bar that the petitioner is not directly charged in the FIR although the complainant claims to be an eye- witness of the occurrence. Per learned counsel there are allegations of general firing and the co-accused with similar role has already been admitted to bail by this Court. The petitioner is also entitled for concession of bail under the rule of consistency. The learned counsel submitted that, it is true that the petitioner remained underground for a considerable period but the same cannot be a proof of guilt and no conviction could be based on such piece of evidence as the petitioner was apprehending danger to his life at the hands of complainant party, due to the worst sectarian violence prevailing in the area. The case of the petitioner is one of the further inquiry as he is not charged for effective firing and there is no worth reliance evidence to connect him with the offence alleged and attributed to him. The learned counsel relied on the judgments reported in PLD 1964 SC 26, 1991 SCM R 322 and 1992 PCr.LJ 412 in support of his contentions.
5. The learned Dy.A.G, and the counsel for the complainant opposed the bail petition and submitted that the abscondence by itself is a factor which dis-entitles the accused for concession of bail especially when the abscontion remained unexplained. The learned Dy.A.G. further submitted that there are no apparent reasons for false implication of the petitioner and no case for grant of bail is made out. Abscondence by itself is a proof of guilt, as the law laid down in PLD 1985 SC 402.
6. After hearing both the parties and scanning the record of the case, it reveals that the petitioner is not directly charged in the FIR for opening fatal shots on the deceased. As evident from the contents of FIR and statements of prosecution witnesses, indiscriminate firing was opened by the accused party and one of the bullet hit the deceased and the identity of the main culprit, whose fire shot hit the deceased still remains doubtful and debatable, as all the accused were attributed general firing and no specific allegations of firing were attributed to the petitioner.
7. The petitioner remained absconder for a considerable long period, but the abscondence alone without any overt act will not by itself be sufficient to sustain conviction on a capital charge. All the four co-accused arrested in the instant case with similar allegations have already been released on bail by this Court. The case of the petitioner is also one of further inquiry under section 497(2), Cr.P.C.
8. In the light of above discussions, the petitioner is admitted to bail subject to furnishing of bail bonds in the sum of Rs, 500,000/-(Rupees five lac only) with two solvent sureties each in the like amount to the satisfaction of trial Court.