1. ' TALAAT QAYUM QURESHI, Having been involved in a case registered vide F.I.R. No,264, dated 29-3- 2007 under sections 302/ 324/34, P.P.C. Read with section 13 of the West Pakistan Arms Ordinance, 1965 at Police Station Tangi, Charsadda, the accused-petitioner applied for his release on bail in the Court of learned Judicial Magistrate-II, Tangi but his application was dismissed vide order, dated 4-5-2007.
2. ' Thereafter the accused-petitioner moved the Court of learned Additional Sessions Judge, Tangi, who also dismissed the same vide order, dated 17-5-2007. Now he has moved this Court for his release on bail.
3. ' Mr. Sahibzada Assadullah, Advocate, the learned counsel representing the accused-petitioner, argued that the accused-petitioner is innocent and has been falsely involved in the case.
4. ' It was argued that in fact there was no direct or indirect evidence to support the case of the prosecution, in that, neither any empty was recovered from the place, where the accused- petitioner along with his co-accused was shown to be present nor any other incriminating material was recovered therefrom.
5. ' It was also argued that Dr. Bashir, co-accused of the petitioner, has been declared to be innocent by the prosecution and that is the reason that he has been placed in Column No,2 of the challan.
6. ' It was also argued that from Motorcar No,DNA-41 four (4) empties of .30 bore 2/3 pistols, one telescope and four (4) chargers were recovered. Two pistols were in the name of Riaz Ali, while one pistol was in the name of Arzumand deceased and blood was also recovered from inside the car.
7. 'It was also argued that Attaullah, Wazir Gul and Ali Zaman were shown witnesses, who were allegedly sitting in Motorcar No,3560- LOH, out of whom, Wazir Gul in his statement recorded under section 164, Cr.P.C. Did not support the case of the prosecution and stated that he was not present at the time of commission of the offence.
8. 'It was also argued that in fact there was registered another F.I.R. No,265 on the same date in which Falak Naz injured/complainant, Arzumand deceased and Attaullah, one of the witnesses of case- F.I.R. No,264 were charged for the murder of one Amanat, the son of Mst. Minhaj. Since firing had taken place in case-F.I.R. No,265, therefore, with the said firing Arzumand died, Falak Naz complainant got injured, while Imran, who was shown present in Motorcar DNA-41, resiled. The question as to whether Arzumand died and Falak Naz injured in the firing allegedly made by the accused-petitioner or by the accused charged vide F.I.R. No,265 of even date, which fact makes the case of the prosecution one of further inquiry, was not taken into consideration by the learned Courts below.
9. ' Mr. Rehmanullah, Advocate, the learned counsel representing the injured Falak Naz present in Court, stated at the bar that the complainant has no objection if the accused-petitioner is released on bail.
10. ' Mst. Quresha, the mother of Arzumand deceased, submitted an application in Court today and stated that she has not effected compromise with the accused-petitioner and further she is unable to engage a counsel, therefore, the learned Additional Advocate-General shall argue the case on her behalf too.
11. ' On the other hand, Alhaj Obaidullah Anwar, the learned Additional Advocate-General representing the State, argued that in the promptly lodged F.I.R. The accused-petitioner was charged along with his co-accused for the commission of the offence.
12. ' It was argued that he complainant in the case in hand has suppressed the fact that another person, namely, Amanat had also lost his life due to firing and for his murder F.I.R. No,265 of even date was lodged.
13. ' It was further argued that there is a strong prima facie case connecting the accused-petitioner with the commission of the offence.
14. ' I have heard the learned counsel for the parties at the length and perused the available record.
15. ' It was on 29-3-2007 at 1145 hours that the complainant, Falak Naz in injured condition, reported to police at Civil Hospital, Tangi that today he along with Arzumand and Imran in Motorcar No,DNA-41, while Attaullah and Wazir Gul along with Ali Zaman in Motorcar No,3560-LOH, after attending the Court of Additional Sessions Judge, Tangi, were proceeding to their house. As soon as they reached at the spot, where Dr. Bashir and Saeed Gul duly armed with .30 bore pistols on a motorcycle, while Saeed Gul and Muhammad Nabi duly armed with kalashnikov on a motorcycle were standing. On seeing them, the accused deboarded from the motorcycle and car and started firing at them, as a result of which, Arzumand who was driving motorcar, got hit and died, while he got injured. The accused, after the commission of offence, fled away from the spot. The motive for the occurrence was previous blood feud enmity. From the firing of the accused, a passerby whose name later on disclosed as Amanat Khan, also got hit and died on the spot. He and the deceased were shifted to the hospital by the passerby. He charged the accused for attempting at his life, the murder of Arzumand and Amanat Khan.
16. No doubt in the promptly lodged F.I.R. The accused-petitioner along with his co-accused, namely, Dr. Bashir was charged for the murder of Arzumand and injuring Falak Naz, who, as per the case of the prosecution, was sitting in Motorcar No,DNA-41 at the relevant time, but astonishingly not a single empty was recovered from the spot, where both the accused were shown present. Likewise, the medico-legal report shows that there were three (3) fire-arm entry wounds on the left elbow at lateral aspect, right shoulder at front and epigastrium as well as three (3) corresponding exit wounds on the person of Amanat, deceased. The said report does not fully support the case of the prosecution.
17. ' Dr. Bashir co-accused of the petitioner has already been declared innocent by the Investigating Officer and that is the reason that his name has been placed in Column No,2. If the presence of Dr. Bashir was doubtful, then the case of the accused-petitioner, who is allegedly co-accused in the case, would also require further inquiry with regard to his presence at the time of occurrence.
18. ' Since for firing at Amanat deceased, Falak Naz injured complainant, Arzumand deceased and Attaullah were charged by Mst. Minhaj, the mother of Amanat and the motive alleged in the said case was blood feud enmity, therefore, it is a case of further inquiry as to whether the deceased was done to death with the firing of accused-petitioner or with the firing of those persons charged in F.I.R. No,265 of even date.
19. ' Resultantly, I accept the application in hand and direct that the accused-petitioner be released on bail on furnishing bail bond in the sum of Rupees four (4) lacs (Rs,4,00,000 only) with two sureties each in the like amount to the satisfaction of the concerned Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.