' Mir Baz Khan, petitioner, and one Amanullah Khan are accused of offence under section 302 read with section 34 of the Pakistan Penal Code. The case was registered against them at Police Station, Lakki Marwat, District Bannu, on the 21st of August, 1987.
2. According to the first information report lodged by Khuylat Khan complainant at his village Gandi Umar Chikar, Zafar Khan his son, was married to Mst. Bibi Zahida, daugther of Amanullah Khan. Mst.
Bibi Zahida had gone to the house of her parents on account of domestic quarrel. Khuylat Khan complainant and his sons Zafar Khan and Mir Ahmad Khan went in Jirga to the house of Amanullah Khan with a view to bringing back Mst. Bibi Zahida. Amanullah Khan accused and Mir Baz Khan accused-petitioner herein, duly armed, Haseena Bibi, Bibi Zahida and Nasreena, daughters of Amanullah Khan were present in the house of Amanullah Khan. The complainant party tried to convince Amanullah to allow Mst. Bibi Zahida to accompany them but without any success. On the other hand, Zafar Khan was equally insistent to take his wife alongwith him. During the exchange of hot words that ensued Mst. Malalai gave a Sota blow to Mir Ahmad P.W. While Amanullah Khan fired a shot hitting Zafar Khan. Mir Baz Khan, petitioner herein, is also alleged to have fired a shot. The complainant and Mir Ahmad ran out for their lives.
3. Soon after the occurrence, the petitioner is alleged to have absconded and has only surrendered to the Police on 17-6-1989. After his arrest, the petitioner moved an application for the grant of bail to the Illaqa Magistrate which was rejected on 21-6-1989. Thereafter, the petitioner further applied for the same purpose to the learned Additional Sessions Judge, Bannu at Lakki, which was also tured down on the ground of abscondence of the petitioner.
4. S. Zafar Abbas Zaidi, the learned counsel for the petitioner, seeks the concession of bail of the petitioner on, inter alia, the following grounds:--
(i) That there is only one entrance wound on the person of the deceased which has been attributed to Amanullah Khan, co-accused of the petitioner;
(ii) that the petitioner has been found to be innocent by the Police during the investigation which, at least, renders the case of the petitioner of further inquiry; and
(iii) that the petitioner had not absconded, in that, he had left his village much before the alleged occurrence and had remained all along at Karachi due to the domestic dispute over the property with his father and it was on this account that the petitioner had voluntarily surrendered to the Police immediately on coming to know of the charge.
5. Conversely, Mr. Ejaz Muhammad Khan, the learned Assistant Advocate-General, has opposed the plea of bail advanced on behalf of the petitioner and contended that the petitioner and his co- accused have been directly charged for the murder of Zafar Khan in the promptly lodged F.I.R.
Which lends ample support not only from the post-mortem report of Zafar Khan, but also from the statement of Mir Ahmad Khan P.W., whose presence at the spot is established from his injury by a blunt means as alleged in the F.I.R. And the petitioner is, therefore, not entitled to bail. Reliance was placed on (1) Muhammad Sadiq v. Sadiq PLD 1985 SC 182 and (2) Awal Gul v. Zawar Khan PLD 1985 SC 402 for the proposition that "in proper cases, unexplained and noticable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case.
6. The first contention of the learned counsel for the accused-petitioner that there is only one entrance wound on the person of the deceased which has been attributed to Amanullah, a co- accused of the petitioner, and thus the contradiction in the ocular version and the medical evidence entitles the petitioner to bail, is not tenable. A similar argument advanced before the august Supreme Court in the case of Sanatta (1982 SCM R 208) was repelled by his Lordship Dr. Nasim Hasan Shah, J. In the following words:-- "In the instant matter the F.I.R. Assigns specific roles to the petitioners and the fact that the medical report does not agree with the account of eye-witnesses of the specific blows delivered by the respective petitioners might well be a relevant factor at the trial, yet at this stage this aspect of the matter cannot be gone into very deeply."
' It would thus be noticed that contradictory versions in medical evidence and the ocular account of the occurrence is a factor which cannot be appraised in depth at the bail stage.
7. The charge of murder of Zafar Khan against the petitioner in common concert with his co- accused Amanullah Khan lends ample support from the direct charge in the F.I.R. And statements recorded under section 161 Cr.P.C. Particularly of Mir Ahmad P.W. Whose presence on the spot is substantiated by a blunt injury which he has sustained on his head and has been attributed to Mst.
Malalai, the mother-in-law of the deceased and wife of Amanullah Khan, his co-accused. He has categorically charged the petitioner for firing at the deceased. The house of the petitioner lies contiguous to the venue of the crime and the possibility of his being present at the time of occurrence at the place of occurrence cannot be altogether ruled out. The petitioner has failed to attribute any animus for false charge against him. Last but not the least, is the noticable abscondence of the accused-petitioner from 21-7-1987 to 17-6-1989 which further disentitles him to the concession of bail notwithstanding the merits of the case.
8. After careful consideration of all these circumstances, I am of the view that the petitioner is not entitled to bail. His petition for bail is, therefore, rejected.