' Cr. Misc. No,325/2004 for bail and Cr. Misc. No,396/2004 for bail cancellation arising from the same F.I.R. Could conveniently be disposed of jointly.
2. Raeed Shah accused-petitioner and his brother Imam Shah the accused-respondent in the connected B.C.A. Are charged for attempt at the life of Gulan Shah complainant and Naseeb Shah his brother through F.I.R. No,719, dated 11-10-2003 registered at Police Station Saddar, Kohat. Both the aforesaid accused were allowed bail by the learned Judicial Magistrate-III, Kohat through order, dated 24-12-2003 whereby the aggrieved complainant filed a bail cancellation petition in the Court of Additional Sessions Judge-II, Kohat which was accepted only against Raeed Shah petitioner and was dismissed as against Imam Shah accused-respondent in Cr.M. (B.C.A.)
No,596/2004, hence this petition for post-arrest bail by Raeed Shah and bail cancellation petition against Imam Shah by complainant Gulan Shah.
3. I heard the learned counsel for the parties and State Counsel. It is admittedly contended by the learned counsel for accused party that the occurrence has not taken place in the manner as it was recorded through F.I.R. From the available record the intention of the two accused brothers inter se, to commit the murder of complainant and his brother could not be established and the injuries caused to the complainant party attributed to Raeed Shah is punishable under sections 337-A(i) and 337-F(i) both not falling. Within the restrictive part of section 497(1) of the Cr.P.C. The to Raeed Shah by Magistrate was recalled by the learned Additional Sessions Judge-II without observing the admitted principle of cancellation for bail already granted.
4. In rebuttal, learned counsel for the complainant with due support of the said counsel submitted that both the accused are prima facie guilty of the attempt at the life of complainant party wherein two persons sustained fire-arm injuries attributed to Raeed Shah. The contents of F.I.R. Have got corroboration in the shape of recovery of one empty shell of .12 bore and the medical report of two victims.
5. The two accused brothers are charged in the F.I.R. Which was recorded in emergency room Kohat by injured complainant Gulan Shah at 19-45 hours after the occurrence. Raeed Shah accused was stated to be armed with a shotgun through which he inflicted injuries to complainant and his brother Naseeb Shah while Imam Shah was reported to be armed with a pistol and though he had fired with that pistol but ineffectively. The occurrence was stated to be a dispute over the landed property.
6. So far as the case of Imam Shah is concerned his alleged fire shots has gone into air and there is no corroboration attributed to him.
The factum of sharing of common object and intention by the two accused is yet to be established at the trial. In these circumstances Imam Shah was rightly allowed bail by the Magistrate and it was not recalled by the learned Additional Sessions Judge-II, Kohat. The bail granting order of Imam Shah is thus, immune from interference by this Court keeping in view the role attributed to him and the facts and circumstances of the case brought on record.
7. Raeed Shah has been attributed the affective fire shots by means of shotgun but the I.O. Got recovered only one empty shell of .12 bore from the spot. The Medical Officer has found one inlet wound on the person of Gulan Shah complainant and two grazing wounds on the person of Naseeb Shah his brother. Both the victims have been shown close together with one pace and the injuries on both persons were stated to be caused with a shotgun, the cartridge whereof contained multiple metallic. The possibility that both the victims sustained injuries from a single shot particularly when the I.O. Has recovered only one empty shell of .12 bore shotgun. The site plan prepared by 1.0. At the instance of eye-witnesses reveals that the accused and complainant party were at a distance of 7/8 paces from one another. The victims are stated to be empty handed at the time of occurrence which took place in the fields having no place of shelter and none of the victims have stated that they ran away from the spot or took shelter somewhere in the surrounding area. In these circumstances, if there had been intention to kill the victims, the accused party must have made successive firing and there would have been no chance for their escape as the distance between the victims and the accused party was just 7/8 paces. All these facts suggest that the occurrence nad not taken place in the manner in which it was reported. The factum of intention to commit murder of the victims requires further probe in view of the facts and circumstances of the case brought on record. While the offence for the injuries caused to the victims are punishable at the most 2/3 years substantive imprisonment.
8. For what I have gathered from record after making a tentative assessment of prosecution case having no bearing on trial Court, that the case against accused party is of further enquiry as the narration of complainant reproduced in the F.I.R. And the statement of injured P.W. Appears to be unreasonable for holding intention of culprits for committing the murder of victims and the Magistrate was right to extend the concession of bail to the two accused in his order, dated 24-12- 2003 and the learned Additional Sessions Judge-II, Kohat has not kept in mind the establish principles for bail cancellation in recalling the bail of accused-petitioner Raeed Shah. Resultantly, I allow Raeed Shah to be released on bail provided he furnishes bail bond in the sum of Rs,1,00,000 (Rs, One lac) with two sureties each in the like amount to the satisfaction of Illaqa Duty Magistrate.
The sureties must be local and men of means. The bail cancellation petition against Imam Shah is dismissed. .