' Faiz Ahmad son of Muhammad Khan and Muhammad Khan son of Bahadur Khan petitioners seek their post-arrest bail in case F.I.R. No,111 dated 18-3-2004 for offences under sections 302, 427, 148, 149, P.P.C. Registered at Police Station Kunjah District Gujrat.
2. The case of the prosecution as unfolded in the F.I.R. Registered at the instance of Nawab Khan son of Shah Muhammad was that he was a Zamindar by profession and his son-in-law Javaid Iqbal son of Atta Muhammad was a contractor of Toll Tax Kunjah; at 8-00 a.m. Muhammad Aslam a tractor-driver of Muhammad Ashraf son of Muhammad Khan, had an altercation with the staff of the toll tax and he was given beating by the staff, he brought the tractor to the house of his employer Muhammad Ashraf who declared that he would avenge the insult right away; at 9-30 a.m. He along with his nephew Yasir Abbas son of Subay Khan, Javaid Iqbal son of Atta Muhammad and Nassar Iqbal son of Nazar Muhammad left their house to go to the village of Maajra and when they reached the house of Muhammad Ashraf at Kunjah, they found Muhammad Ashraf son of Muhammad Khan armed with .44 bore rifle, Faiz Ahmad son of Muhammad Khan, Muhammad Khan son of Bahadur (petitioners) Muhammad Iqbal son of not known along with three unknown persons all armed with fire-arms standing at the roof of a double-storied house of the said Muhammad Ashraf; Muhammad Khan raised a Lalkara that they should not be let off and should be killed; whereafter he fired with his fire-arm hitting Yasir Abbas under the right eye who fell down; they hid themselves behind a wall whereafter the accused persons fired straight towards them; Yasir Abbas who had fallen down received more injuries on the back of his neck and an electricity transformer was also hit. Accordingly the instant case was registered.
3. The petitioners were arrested on 21-4-2004 and are in custody eversince. They applied for their post-arrest bail which was turned down by the learned Additional Sessions Judge, Gujrat vide order, dated 22-7-2004. Hence this petition.
4. I have heard Ch. Farooq Haider, the learned counsel for the petitioners, Ms. Fauzia Sultana, the learned State Counsel and have also perused the record brought by Muhammad Yousaf S.-I. Police Station Kunjah, District Gujrat.
5. The learned counsel for the petitioner has produced a certified copy of the post-mortem report relating to Yasir Abbas deceased. According to the doctor who conducted the post-mortem examination the deceased had received only one fire shot injury which has been recorded as Injury No,1 which is an entry wound and injury No,2 is its exit wound. The doctor in his report stated that after carefully examining the dead body he was of the opinion that injury No,1 was the only fire, which hit the man and the same was ante-mortem. According to his opinion injury No,2 was caused by the same bullet. It has also been noticed that according to the report of Forensic Science Laboratory the lead recovered from the. Dead body of the deceased was of .30 bore pistol.
The argument of the learned counsel for the petitioner that the blackening around the wound suggests that the shot had been fired from a very close range also got some substance and cannot summarily be rejected inasmuch the allegations according to the F.I.R. Were that the shot was fired from a considerable distance; that the house of Muhammad Ashraf was a double- storeyed building and that the accused persons were standing atop the roof. The record also reveals that both the present petitioners namely Faiz Ahmad and.Muhammad Khan had been declared innocent in the initial investigation, conducted by Abdul Aziz S.-I./I.O. There is no denying the fact that the deceased had received only one fire-arm injury. The general allegation that rest of the accused persons including the petitioners had fired with their respective fire-arms causing more injuries to Yasir Abbas does not prima 'facie find support from the material available on record.
6. The learned State Counsel frankly conceded that the case of the petitioner is pre-eminently one of further inquiry.
7. Keeping in view the attending circumstances of the case and the role attributed to the petitioners their vicarious liability is to be determined at the time of trial. I would not like to further go into the merits of the case lest it prejudices the case of either of the sides. Suffice it to say that in the peculiar facts and circumstances of the case the culpability of the petitioners merits further probe within the meanings of subsection (2) of section 497, Cr.P.C.
8. Resultantly this petition is allowed and the petitioners are admitted to bail in the sum of Rs,50,000 each with' one surety each in the like amount to the satisfaction of the learned trial Court.
9. Before parting with this order I would like to add that the observations made hereinabove are tentative in nature and are not designed to influence the course of the trial in any manner.