Saeed Ahmad VS State etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) Cr.M.BA. No. 311-M of 2016.

JUDGMENT

Date of hearing: 23.8.2016.

Petitioner:- (Saeed Ahmad) by Mr. Fazli Ghafoor, Advocate.

Respondents:- ( the State & 1 another) by Mr. Sabir Shah, A.A.G and Amjad Ali, respondent/complainant No. 1, in person.

MUHAMMAD YOUNIS THAHEEM, J.- Petitioner, Saeed Ahmad seeks bail in case FIR No. 128 lodged on dated 24.9.2008 and registered on 06.10.2009 under sections 302, 324,148,149 PPC & 7 ATA, registered at Police Station Matta, District Swat, as the concession of bail was refused to him by the learned trial Court vide its order dated

2.As per contents of the F.I.R , the

accused/petitioner alongwith his other co-accused have been charged by the complainant for murder of the deceased Amir Ghaus.

3.Arguments heard and record perused.

4.Perusal of the record reveals that though the accused/petitioner has been directly charged in the F.I.R by the complainant for murder of the deceased alongwith his other co-accused, but no specific role has been Nawab

assigned to none of the accused, rather all the accused have been given general role and it would be determined during trial after recording of evidence that whose fire shot prove effective coupled with the fact that occurrence has been statedly took place on 24.9.2008 and

accused/petitioner alongwith his other co-accused have been charged in the first information report with considerable long unexplained delay of more than one year on 06.10.2009, so, at this stage, the case of petitioner squarely falls within the ambit of further inquiry.

5.The only blemish remained in the field

against the accused/petitioner is that he remained fugitive from law for considerable long period, but in this respect a reasonable explanation has been advanced by the learned counsel for petitioner to the effect that he was taken into custody by the Pak Army for interrogation about his alleged involvement in terrorist activities during military operation in the Swat against Taliban militants which commenced on 01.5.2009, while F.I.R. was registered on 06.10.2009 when accused was in custody of Pak Army concerned unit, there is nothing on record that local police contacted Army unit for his custody and later on after thorough and protracted interrogation conducted by the Army was set free with certificate issued by Commanding Officer of the said unit posted at Swat by declaring him Nawab

"clear", however after release from Pak Army concerned unit, Saeed Ahmad, accused/petitioner was arrested by the local police in connection with the instant criminal case, so, it could not be termed as willful abscondence but the affairs at that time were beyond his control, even otherwise, it is settled by now that absconsion of an accused by itself is no ground for refusal of bail, if otherwise, case of accused/petitioner is of further inquiry.

In this respect wisdom is derived from the judgment of Hon'ble Supreme Court titled as "Ehsan Ullah Vs The State" (2012 SCMR 1137). The relevant principle of law enunciated in the above cited judgment is reproduced as below:

"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. A reference in this respect may be made to the case of Muhammad

Sadiq V. Sadiq and others (PLD 1985

SC 182), Ibrahim V. Hayat Gul and

others (1985 SCMR 382) and Qamar

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alias Mitho v. The State and others

(PLD 2012 SC 222)."

6.Moreover, the complainant also submitted an affidavit before this Court, wherein he stated that he has got no objection if the accused/petitioner is released on bail.

7.In view of the above, the petition for grant of bail is allowed, accused/petitioner is admitted to bail on furnishing bail bonds amounting to Rs.200,000/- (Rupees two lac) with two sureties, each in the like amount to the satisfaction of learned trial court/MOD, who shall ensure that the sureties are local, reliable and men of means.

These are the reasons of my short order of even date.

Announced Dt: 23.8.2016 JUDGE

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