The petitioner has applied for grant of bail in a case registered against him and two others vide F.I.R. No.300, dated 7-10-1989 under section 302/34, P.P.C. At Police Station Mandan, Bannu.
2. Briefly the case against the petitioner is that on 6-10-1989 at 16-30 hours, the petitioner alongwith his brother, namely, Shehryar and another Ismail, an Afghan Refugee, have allegedly done to death one Zafar Ali Khan, resident of village Bazeed Toughul Khel in `Kandrat' of `Loorha' within the jurisdiction of village Bazeed Toughul Khel on account of rivalry over a boy, namely Farmanullah son of Naimatullah of their village. Ghafar Ali Khan, cousin of the deceased, lodged the report on 7- 10-1989 at 12-30 hours to Haqnawaz Khan, A.S.I. Who had reached the spot alongwith the police party. The allegations in the report are that on 6-10-1989 at about 13-00 hours, Zafar Ali Khan left the house saying that he was going in search of honey with Farmanullah, a boy of his village and since he did not return, therefore, he was searched and his dead body was discovered in the `Kandrat' of `Loohra'. It would thus appear that none was charged in the F.I.R., because the dead body was discovered after a day the deceased left his house. It seems that Farmanullah was interrogated and was examined on 8-10-1989 under section 161, Cr.P.C. And on 10-10-1989 under section 164, Cr.P.C. And in consequence of his statements, the case against the petitioner and his two absconding co--accused was registered.
3. Mr. Abdul Hakeem Khan Kundi, the learned counsel appearing on behalf of the petitioner, has raised the following contentions:--
(1) That the statements of Farmanullah P.W. Under sections 161 and 164, Cr.P.C. Were recorded on 8- 10-1989 and 10-10-1989 respectively with a delay of 2 to 4 days and, therefore, the charge against the petitioner has been brought after consultation and deliberation;
(2) that the statements of Afsar Ali and Daraz Khan P.Ws. Have been recorded on 12-10-1989 under section 161, Cr.P.C. And their explanation that they had gone to Karachi for selling garlic is nothing more than a mere concoction;
(3) that the medical report showing the injuries sustained by the deceased to be of shotgun or .12 bore pistol does not involve the petitioner, because he was allegedly armed at the time of occurrence with a .7 m.m. Rifle and, lastly;
(4) that even according to the statement of Farmanullah P.W., the petitioner had allegedly clapped to his absconding two co-accused and had, therefore, not actually participated in the occurrence.
4. Mr. Muhammad Salim Khan Gandapur, Advocate, appearing for the State assisted by S. War Abbas Zaidi, Advocate for the complainant, has submitted that the petitioner being the real brother of Shehryar Khan absconder, who is the principal accused in the case, has taken active part in the crime by clapping to his two co-accused when the deceased in the company of Farmanullah was leaving the place of their bath and, therefore, he was vicariously liable for the murder of the deceased and was not entitled to bail. It was also argued that the petitioner has remained in abscondence from 6-10-1989 to 29-11-1989 when he surrendered to the Court of Session at Karak wherefrom he was directed to approach the Court of Session at Bannu and was, therefore, not entitled to the concession of bail. In support of their last submission that noticeable and unexplained abscondence disentitles an accused to the concession of bail, the learned counsel placed reliance on Awal Gul v. Zewar Khan PLD 1989 SC 402.
5. There has been an inordinate delay in lodging the report. The petitioner has been named after Farmanullah P.W. Who had allegedly played a pivotal role in the commission of the crime and upon whose testimony the petitioner alongwith his absconding brother and one Ismail, an Afghan Refugee, were involved at least after about two days of the occurrence. Then the charge against the petitioner is merely that of clapping to his two absconding co-accused. It would, therefore, be for the trial Court to determine the extent of vicarious capability of the petitioner in the commission of the crime. Then the motive part of the evidence is also against Shehryar absconder and not the petitioner himself. In the circumstances, I have formed the opinion E that there are not reasonable grounds for believing that the petitioner had committed the offence with which he has been charged and there are sufficient grounds for further inquiry into his guilt under subsection (2) of section 497, Cr.P.C.
6. As for abscondence, the ratio in Awal Gul's case cited at the bar was elaborated by the Honourable Supreme Court in the case of Muhammad Sadiq v. Sadiq PLD 1985 SC 182 in the following words:-- "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 dictum of the Honourable Supreme Court was reiterated in Najib Gul v. Khalid Khan 1989 SCMR 899 in the following paragraph:-- "Unfortunately it has been ignored that noticeable abscondence deprives an accused person of concession of bail unless he gets it as of right under subsection (2) of section 497, Cr.P.C. Or the offence is bailable otherwise. The grant of bail as of right under section 497(2), Cr.P.C. Is possible only when a finding is rendered that there are not reasonable grounds for believing that the accused has committed the particular offence."
7. The rule deducible from the perusal of the aforesaid authorities of the Honourable Supreme Court is that abscondence will not operate as an absolute bar against the claim of bail pending trial in cases falling within the prohibitory clause of subsection (1) of section 497, Cr.P.C. Which either fall under the first proviso to subsection (1) or those under subsection (2) of section 497, Cr.P.C.
8. In the circumstances narrated above, it appears to be a case of further inquiry qua the petitioner within the contemplation of subsection (2) of section 497, Cr.P.C. And the allegation of abscondence would not operate as a bar to the grant of bail to the petitioner. Accordingly, I admit the petitioner to bail in sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Bannu.