' MUHAMMAD ALAM KHAN, J.---This is an application for bail moved by Khan Sardar and Gul Raeep, accused/ petitioners, in case F.I.R. No, 34 dated 1-5-2008 under sections 302/324/148/149, P.P.C. Of Police Station Miryan, District Bannu. Their applications for bail have been turned down by the learned Judicial Magistrate-VI and learned Additional Sessions Judge-V Bannu vide orders dated 27-5-2008 and 6-6-2008 respectively.
2. The allegations contained in the F.I.R. Are that on the fateful day at 0645 hours, the complainant Muhammad Javed Khan along with his uncle Ghulam Daud and cousin Sher Dar Ali were busy in cutting wheat crop when in the meanwhile Khawaja Wali, Rahman Wali, Gul Sarwar, Khan Sarwar, sons of Zarin, Farzand Ali son of Khawaja Ali, Raqeeb Nawaz son of Sardar and Gul Raeep son of Mutabar Khan, armed with Kalashnikovs came and opened firing at them. With the firing of Khawaja Wali and Gul Sardar, Sher Dar Ali was hit and fell down to the ground, with the firing of Rahman Wali and Farzand Ali, Ghulam Daud was hit and fell down to the ground while Raqeeb Nawaz, Gul Raeep Khan and Khan Sardar are alleged to have fired at the complainant but luckily he escaped unhurt. Ghulam Daud and Sher Dar Ali are stated to have died in the occurrence.
Motive for the offence was given to the quarrel between the children of the parties.
3. Learned counsel for the petitioners argued that the role assigned to the accused/petitioners by the complainant in his first report is of ineffective firing; that the prosecution version is not supported by the medical evidence; that the petitioners were not arrested at the spot and they voluntarily surrendered to the police; that the report was lodged after due deliberation and consultation and that no recovery was effected from the place assigned to the accused/petitioner in the site-plan prepared in the case. In support of his arguments, reliance was placed on the case law reported as Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court 34), Sher Khan and 2 others v. The State and another (2003 PCr.LJ 1149), Sabir Hussain v. The State (2008 PCr.LJ 1327) and Manzoor Hussain v. The State (2000 M LD 1279).
4. On the other hand, learned counsel for the complainant and the learned Deputy Advocate- General representing the State resisted the grant of bail to the petitioners on the grounds that they are directly nominated in the promptly lodged report of the complainant; the medical evidence supports the prosecution case and the offence fall under the prohibitory limb of section 497, Cr.P.C.
Entailing capital punishment.
5. I have scanned the record and considered the valuable arguments advanced at the bar.
6. Perusal of the record reveals that though the accused/petitioners are named in the F.I.R, but the role of ineffective firing has been assigned to the accused/petitioner Gul Raeep Khan. Besides, no recovery has been made from the places assigned to them in the site-plan. It is yet to be determined at the trial whether it is a case of common object and the provisions of sections 148/ 149, P.P.C. Are to be attracted or not.
'Presently, the tentative assessm ent of the materials so far brought on record brings the case of the accused/petitioners within the ambit of 'further inquiry' entitling to the concession of bail.
7. Consequently while following the dictum laid down in the judgment reported as Tariq Bashir and 5 others. v. The State tPLD 1995 Supreme Court page 34, the application is accepted and the accused/ petitioners are admitted to bail, provided each of them furnished bail bond in the sum of Rs,3,00,000 (Rupees three lacs) with three sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
' Above are the reasons for my short order of even date.