After the rejection of their applications for bail in case FIR No,183 dated 6/7/2007 of Police Station.
Tank, registered under Sections 302/34. PPC, by the learned Judicial Magistrate Tank and learned Sessions Judge Tank, vide orders dated 26/4/2008 and 10/5/2008 respectively, Ghulam Qasim and Muhammad Jan, accused/petitioners, have come up to this Court through the application in hand for the same relief.
2. According to the First Information Report lodged by Atta Muhammad on 6/7/2007 at 0630 hours, he was present in his house after morning prayers when he was informed by Muhammad Jan, son of Haji Sher Muhammad, that his son, namely, Qamar Zaman with his wife Mst. Shamim Bibi were done to death with fire-arms at 1245 hours by some unknown persons. When reached the house of his said son in Mohallah Dost Muhammad Katti Khel, he found both of them lying dead. However, none was .charged for the offence. Subsequently on 15/8/2007, the complainant charged the accused/petitioners in his statement recorded before the Judicial Magistrate under Section 164 Cr.P.C. for having committing the murder of the two deceased either themselves or through someone else.
3. Learned counsel for the accused/petitioners submitted that they are not directly charged by the complainant in his initial report, that nothing incriminating has been recovered from their possession; that the complainant has not disclosed the source of information about the occurrence; that there is no motive behind the occurrence; that the occurrence is an unseen and that the complainant has charged the accused/petitioners after lapse of one month and eight days in his statement under Section 164 Cr.P.C. with no plausible explanation for the delay.
3A. The learned Deputy Advocate General representing the State and learned counsel for the complainant, however, resisted the application on the grounds that the accused/petitioners are directly charged by the complainant in his subsequent statement before the Judicial Magistrate under Section 164 Cr.P.C. for killing his son and daughter-in-law and the offence falls within the prohibitory clause of Section 497 Cr.P.C.
4. After considering the arguments of learned counsel for the parties and evaluating the materials available on record, I am, however, of the view that the case of the accused/petitioners falls within the ambit of 'further enquiry'. The complainant in his first report lodged on 6/7/2007 at 0630 hours about killing of his son and daughter-in-law had neither nominated anyone for committing the crime nor any motive was given therefor. He had only heard from the mouth of Mohammad Jan (Accused/Petitioner No,2 herein) that the two deceased were murdered, by some unknown persons at dark hours of the night, i,e, 1245 hours. But he remained silent till then for one month and eight days of the occurrence i,e, on 15/8/2007, when he charged the accused/petitioners for commission of the offence, and there too neither disclosed the source of information through which he had come to know about their involvement in the crime, nor any reason was given as to why he had remained mum for such a long period, and nor has attributed them any motive for the offence, besides that none of the two accused/petitioners has been assigned any specific role in the occurrence. It is yet to be seen at trial when pro and contra evidence comes on record whether the accused/petitioners are reasonably linked with the commission of the offence.
5. From the available facts and circumstances of the case and tentative assessment of the data brought on record, prima facie, makes it a case of further enquiry which entitle the accused/petitioners to the concession of bail.
6. I therefore, accept this application and admit the accused/petitioners to bail, provided each of them furnishes bail bond in the sum of Rs, 2,00,000/- (Rupees two lacs) with two sureties each in the like amount, to the satisfaction of Illaqa/Judicial Magistrate.
Above are the reasons for my short order of even date.