Abdul Wali Versus State

Order

Muhammad Ayub Khan Tareen, J .--- Through this application, the applicant (accused) Abdul Wali son of Baqi Jan seeks bail in a criminal case, vide FIR No.58/2021, dated 27th July 2021, under sections 302 and 34, P.P.C, registered at P.S. Saddar, Pishin.

2. Facts of the case are that complainant Syed Wali son of Muhammad Rasool got registered the above FIR against Abdul Kareem and others alleging therein that his brother Sardar Wali used to ply wagon at Pishin-Khanozai route; on 25th July 2021, Sardar Wali was invited by his cleaner namely Abdul Kareem at his home situated in Killi Kharoti Surkhab, but did not return home; on the next day, complainant asked Abdul Kareem regarding whereabouts of Sardar Wali, who informed that after taking meal, on receiving a phone call, Sardar Wali left his house with the pretext to have a meeting with someone. It was further alleged that mobile numbers of Sardar Wali were switched off; on 27th July 2021, the complainant received information that Abdul Kareem and his accomplices took Sardar Wali in mountains of Surkhab and by making firing committed his murder, hence, this case.

3. After registration of the FIR, investigation was conducted; meanwhile the complainant through supplementary statement dated 4th November 2021, nominated Abdul Wali (applicant), Rehmatullah son of Hayatullah and Mohibullah son of Azizullah as co-accused; on 26th November 2024 after about more than two years, the applicant was arrested and upon completion of investigation, he was remanded to judicial custody. He applied for the concession of bail, but declined, vide order dated 31st December 2024, passed by the learned Additional Sessions Judge, Pishin. Hence, this application with the same prayer.

4. I have heard the learned counsel for the parties and gone through the record with their assistance.

5. The learned counsel for the applicant contended that the applicant has falsely been implicated in the instant case on the supplementary statement furnished by the complainant after about four months of the incident; that there is no eye-witness of the alleged incident; besides, the FIR was registered after an unexplained delay of two days; that on same set of evidence, co-accused Abdul Kareem and Rehmatullah have been acquitted of the charge by the trial court, whereas co-accused Mohibullah was discharged by the Investigation Officer; that mere abscondence is not sufficient to with-hold bail to the applicant.

6. On the other-hand, learned State counsel opposed the contention of the applicant's counsel.

7. Tentative assessment of the evidence shows that prima facie, the applicant's case falls within the ambit of further enquiry, for the reasons that painful murder of deceased Sardar Wali remained un-witnessed. On same set of evidence, the nominated accused namely Abdul Kareem and Rehmatullah were granted bail and after full fledge trial they were acquitted of the charge by the trial court; whereas co-accused Mohibullah was also discharged during course of investigation. There is no direct evidence available in this case connecting the applicant in the alleged murder. The question of evidentiary value of such belated supplementary statement is to be gone into at trial. The prosecution mainly relies upon the alleged confession made by the applicant before the Police.

8. It is relevant to note here that mere abscondence of an accused is not conclusive proof of his guilt; it is only a suspicious circumstance against an accused that he is found guilty of the offence which cannot take the place of evidence; the value of abscondence, therefore, depends on the facts of each case. Abscondence is supporting evidence of the guilt of the accused, which is to be decided keeping in view the facts of the case. Mere abscondence is no ground to decline bail if, otherwise, the case of the accused is fit for bail on merits.

A criminal trial's object is to make the accused face the trial and not punish an under trial prisoner for the offence alleged against him. The basic idea is to enable the accused to answer the criminal prosecution against him rather than rot behind bars. It is also a well-recognized principle that bail cannot be withheld as punishment on an accusation of non-bailable offences against an accused.

9. In view of what has been discussed above, the applicant's application is allowed. Accordingly, he is admitted to bail in case FIR. No.58/2021, P.S. Saddar Pishin, provided he furnishes surety in the sum of Rs.2,00,000/- (Rupees Two Hundred Thousand) and P.R bond of the like amount, to the satisfaction of Additional/Deputy Registrar of this Court/trial Court.

Observations, if any, made hereinabove shall not influence the case's merit at the trial.

JK/144/Bal. ????