FAZAL-UR-REHMAN, J.---This application has been moved on behalf of above named accused/applicants who are detained in Crime No,5 of 1998 Levies Thana, Zhob under sections 324, 337-ADF, 449, 452, 504, 427, 506, 489, 511, 427, 147, 148, 109 and 34, P.P.C. Lodged on 22-2-1998 at about 10-00 a.m. On the basis of a complaint which had been presented to the Political Agent, Zhob by the complainant Muhammad Yousaf.
2. The occurrence is stated to have taken place on 21-2-1998 at about 2-30 p.m. The complainant Muhammad Yousaf presented an application/complaint to the Political Agent, Zhob regarding registration of F.I.R. Alleging therein that on 21-2-1998 at about 2-00 p.m. The complainant was going in his vehicle No,ZB(T) 2888 alongwith Shams-ud-Din and while crossing the Fort of Ghulam Nabi, he saw Ghulam Nabi standing there. With him Ghulam Haider, Haji Rehman, Syed Akbar Shah and others were also present. It is stated that they were making marks on the land of complainant.
On seeing this, they stopped and enquired from Ghulam Nabi as to why they are marking their land because the dispute over the land has not been decided. It is stated that during this period one Amir Khan who was passing nearby 'in vehicle No,BG 5926 also came there and enquired about the matter. It is stated that on this Ghulam Nabi started abusing him whereupon, applicant Ghulam Haider got boarded in his vehicle, started the same and accelerated the vehicle over them, which resulted in injuries to him whereas, Amir Khan and other saved themselves by running aside. It is stated that thereafter, Ghulam Haider unboarded from vehicle and opened fire with kalashnikov.
During firing Abdul Samad and Amir Shah also came there. It is stated that the complainant and other laid down on the grounds and as such got saved but their vehicles got damaged. It was further alleged that Rocket Launcher was also used by the accused persons. This complaint was marked to Tehsildar, Zhob by the Political Agent on 22-2-1998 with the direction to register the case and enquire into it. The same was incorporated in the F.I.R. Being Crime No,5 of 1998 Levies Thana, Zhob on 22-2-1998 at about 10-00 a.m. The matter was pending investigation. On 7-8-1999 the challan of the case was received in the Court of Sessions Judge, forwarded by A.D.A. Zhob through A.C./S.D.M., Zhob. The learned Sessions Judge then directed Political Agent, Zhob to conduct an enquiry in the matter against Azeem who was working as Reader to Tehsildar, Zhob namely Matiullah. The report has since been submitted. On 4-1-2000 the case was registered and non- bailable warrants were ordered to be issued by the learned Special Judge, Suppression of Terrorist Activities, Zhob. The applicants were accordingly arrested. An application for grant of bail was moved before the trial Court on 14-1-2000 and the same was fixed for 15-1-2000. The matter was then adjourned for 16-2-2000. Since longer date was given, therefore, the applicants approached this Court by means of filing an application for grant of bail which was decided in terms that the bail application which was pending before the trial Court was ante-dated with direction to decide the same on 1st February, 2000. The learned Special Judge, Suppression of 'Terrorist Activities, Zhob refused bail to the applicants on 4-2-2000 by making the following short orders relevant portion of which is reproduced below:-- "The accused/applicants nominated in the F.I.R. The witness Amir Khan implicated to the accused/applicants in his statement under section 161, Cr.P.C. The accused/applicants are absconding about two years. There is sufficient evidence against the accused/applicants. The offences are not bailable." Hence this application.
3. We have heard Syed Ayaz Zahoor, Advocate learned counsel for the applicants and Mr. Noor Muhammad Achakzai, learned Additional Advocate-General for State.
4. Learned Counsel for the applicant has contended that on 21-2-1998 the case was registered against the complainant party and on completion of the investigation challan was submitted to the trial Court. After trial the complainant party was, however, acquitted of the charge by the trial Court and against acquittal order a Constitutional petition was filed before this Court which after admission is pending for decision. He has contended that an enquiry was ordered to be conducted by the learned Sessions Judge, Zhob. Learned counsel has also submitted that bearing No,5 of 1998 dated 13-3-1998 was got registered by one Muhammad Khan against one Abdullah and the same is pending trial before the learned Sessions Judge, Zhob. Learned counsel for the applicants has further submitted that the complainant party lodged F.I.R. No,25 of 1998 in respect of incident of 21- 2-1998 under sections 337-ADF and 34, P.P.C. With Police Station, Zhob which case has since been disposed of by the learned S.D.M. Zhob under section 249-A, Cr.P.C. He has also contended that despite of the report of Political Agent and submission of Challan of case in F.I.R. No,5 of 1998, the learned trial Court without considering the same issued warrants of arrest of applicants which resulted in their arrest. It has been contended that the applicants were never absconders in the instant case as no proceedings whatsoever, were conducted against them under the provisions of section 87/88, Cr.P.C. And moreover, they had also been appearing in the Court in respect of F.I.R.
No,4 of 1998, :therefore, by no stretch of imagination they can be 'declared as absconders. Learned counsel has contended that there is delay of one day in lodging of F.I.R. Whereas, the statements were recorded on 28th February and 5th March wherein, too no role has been assigned by the witnesses. Learned counsel has submitted that there is no medical certificate in respect of witness Amir Khan whose statement has been recorded on 21-2-1998 one day before registration of the case. It has been contended that sections 452, 489 are not attracted as there is no house trespass and on the basis of medical certificate in respect of Abdul Samad section 337-A, P.P.C. At the best can be made out against the applicant which, is bailable. It has been contended that no material has been produced by the complainant party to show that their land or property was destroyed which, however, needs further probe. Learned counsel for the applicants has also submitted that since the challan has been submitted and the accused/applicants were arrested on 14-1-2000 and no more required for the purpose of investigation.
5. On the other hand, learned Additional Advocate-General has conceded that no F.I.R. Of the incident has been lodged by the Levies Authorities.
6: It is pertinent to. Note that on 7-8-1999 after receipt of the challan, the learned Sessions Judge, Zhob made an order. The relevant portion of which reads as under:-- "It appears that Azeem has managed to prepare three forged challan with the connivance of others. The Tehsildar, Matiullah be called to verify the correctness of the challan. The matter was fixed for 9-9-1999. It appears that, thereafter, the matter remained under correspondence between the learned sessions Judge and Political Agent, Zhob regarding submission of enquiry report which was submitted on 4-1-2000. The learned Judge without considering his previous orders, reports and other documents straightaway ordered issuance of non-bailable warrants against the applicants.
7. The occurrence is stated to have taken place on 21-2-1998 at about 2-30 p.m. Whereas, the F.I.R.
Has been lodged on 22-2-1998 at about 10-00 a.m. By incorporating the application/complaint which the complainant had presented to the Political Agent. The challan was received in the trial Court after about 1-1/2 years i,e, 4-8-1999 and the same was registered on 4-1-2000. The perusal of R&P do not indicate that any proceedings as required under the law has been taken against the applicants whereby, they have been declared absconders. The perusal of R&P also indicate that the investigation of the case was also conducted by the Tehsildar, Zhob on 21-2-1998 but no such, F.I.R. Is available which has been lodged on 21-2-1998. The presentation of complaint to the Political Agent and A incorporating the same in F.I.R., delayed statement of witnesses, submission of challan after about 1-1/2 years and commencement of the trial after about one year and ten months need further probe. It is yet to be ascertained as to whether any scheduled offence has been committed or otherwise. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court, should not probe into the merits of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left, unrebutted, may lead to interference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegation of suspicion. However, strong the suspicion may be, it would not take the place of reasonable ground.
8. Bail cannot be refused to an accused for abscondence if he has no knowledge about the case pending against him in any Court. Similarly, if the case of an accused falls within the ambit of further enquiry or otherwise entitled to bail on merits, the bail becomes his right notwithstanding with his abscondence. Mere abscondence does not disentitle accused for grant of bail where the Investigating Agency purposely do not arrest him. Failure of Investigating Agency to perform his duty cannot be used against the accused. As stated earlier there is nothing on record which can indicate that proceedings as required under the law have been taken regarding absconsion of the applicants.
9. Prima facie the circumstances of this case are sufficient to bring the case of the applicants within the ambit of further enquiry. Accordingly, the applicants are admitted to bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 each with two sureties in the like amount to the satisfaction of the trial Court.