' MUHAMMAD ALAM KHAN, J.---Wazir Khan son of Said Abbas has filed the present Criminal Miscellaneous Application requesting for bail in case F.I.R. No,832 dated 2-8-2007 charge under sections 302/324/148/149, P.P.C. Police Station, Charsadda.
2. Briefly narrated the facts of the case are that on 2-8-2007 at 1400 hours Wasil Khan son of Said Abbas resident of Mur Wandia made a report in the shape of Murasila to the effect that he along with his son Khushdil Khan, grandson, Iftikhar, Ahtisham, Zeeshan sons of Khushdil Khan were sowing maiz crops in the fields of Major Kamal his son Khushdil Khan was busy irrigating the fields.
In the meantime, Hameed, Khawaja Muhammad Khan, Tariq, Arif sons of Wazir, Wazir son of Said Abbas resident of Shaheen Kali, Mahal Mara Wandai came duly armed with pistols. Wazir ordered his son to fire on this command, Waheed, Khawaja Muhammad Khan, Tariq and Arif open fire at them with which his son was hit and died on the spot and they escaped unhurt. After this the accused decamped from the spot. Motive for the occurrence was alleged to be, that his daughter Ulfat is married to accused Hamid and the sister of the accused Mst. Brekhna was married to deceased Khushdil Khan. Mst. Brekhna was living, due to strained relation, in the house of the accused. He charged the accused for the. murder of Khushdil deceased and for ineffective fire on the complainant and his grandsons. The occurrence was stated to have been witnesses by the complainant, his grandsons Iftikhar, Ihtisham and Zeeshan.
3. On the basis of this Murasila F.I.R.No,832 dated 2-8-2007 was registered on 1445 hours.
4. After the arrest of accused/petitioner Khushdil Khan he moved an application before Mr. Mohsin Ali Turk, Senior Civil Judge/Judicial Magistrate, Charsadda who vide order dated 14-9-2007 rejected the application for bail of the accused/petitioner and the accused/petitioner then submitted an application before the learned Sessions Judge, Charsadda which was entrusted for disposal to Mr. Fazal Subhan, Additional Sessions Judge, Charsadda, who after hearing the learned counsel for the parties and perusing the record dismissed the same vide order dated 28-9-2007.
5. Wazir Khan, petitioner has come to this Court with a prayer for his post-arrest bail. It was submitted by Mumtaz Ali son of the petitioner that the accused is an old man of 71 years and no active overt act has been attributed to the petitioner. He has been charged only for lalkara (command) to the other accused.
6. It was also argued that no independent evidence is forthcoming in this case. It was also argued that F.I.R. Has been lodged with the delay of one hour making room for meditation and deliberation.
It was further submitted that the complainant has charged all the male members of family and thus, the petitioner is entitled to the concession of bail.
7. Wasil Khan complainant submitted that the accused/petitioner is directly charged in the F.I.R., which has been promptly lodged and he has played a pivotal role in the commission of the offence, which is backed by a strong motive.
8. Mr. Muhammad Saeed Khan Shangla, Additional Advocate-General submitted that the co- accused are absconding in this case and it was the accused/petitioner who was instrumental in facilitating the murder of Khushdil Khan 'deceased and ineffective firing on the complainant and eye-witnesses thus, it was submitted, that the petitioner was not entitled to the concession of bail.
9. I have gone through the case minutely and given it a thoughtful consideration, facts and circumstances of the present case and have perused the record with help of learned A.A. -G.
Perusal of the record reveals that copy of the National Identity Card annexed with the bail application, the date of birth of the accused/petitioner is 1936 and on calculation, at the time of the commission of the offence he was 71 years of age which in itself brings infirmity to a person.
10. Perusal of the record reveals that the accused/petitioner has also annexed with the written arguments submitted by his son a joint affidavit of Ghulam Said son of Miran Said, Said Muhammad son of Gul Muhammad, Wazir Muhammad son of Said Muhammad residents of Shaheen Killi Maira Utmanzai, Tehsil and District Charsadda to the effect, that at the time of occurrence the accused/petitioner was present with them in the mosque offering Zohar prayer. In this way, they have tried to make out a case for alibi, which cannot be taken into consideration at this stage, and furthermore, the accused/petitioner had not taken this plea either before the lower Courts or before this Court in the grounds for bail application.
11. I would refrain to make comments and to go deep into the merits of the case so that it may not prejudice the case of either prosecution or defence but, suffice it to say that the accused/petitioner has not been attributed any overt act and only a role of Lalkara has been given to him which under the circumstances, make out a case for bail of the petitioner, in view of the dictum laid down in the cases of Tariq Zia v. The State 2003 SCMR page 958 and Muhammad Amjad and others v. The State reported in 2004 YLR 1732; Mazhar alias Mazhar Ali v. The State 2007 PCr.LJ 925 and Haji Manzoor Ahmad v. The State 2004 YLR 1409.
12. In view of the facts and circumstances of the case narrated above I accept this bail application and admit Wazir Khan son of Said Abbas petitioner to bail, provided, he furnishes his bail bond in the sum of Rs,200,000 (two lacs) with two sureties and a personal recognizance in the like amount to the satisfaction of Senior Civil Judgecum-Judicial Magistrate/Duty. Magistrate Charsadda. The learned Court is directed to satisfy himself that the sureties are men of means and integrity.