The accused/petitioners, Shakeel Khan and Sahir Ali Khan, have been refused bail by the learned Judicial Magistrate and learned Additional Sessions Judge-II Bannu Vide orders dated 26/2/2008 and 8/3/2008 respectively in case FIR No, 452 dated 13/12/2007 under Sections 302/324/34 PPC of Police Station Saddar Bannu and now they have come up to this Court for the same purpose through the instant application.
2. According to the FIR lodged by the complainant Asghar Hayat on 13/12/2007 at 1520 hours, on the fateful day at 1420 hours, he alongwith his brother Aslam Hayat and relative Sanaullah Khan after making purchase of house-hold articles were coming back from Bannu City towards their house.
When they reached near the Grid Station at 1350 hours, Shakeel Khan and Sahir All Khan, sons of Asghar Ali Khan, residents of Bazar Ahmad Khan, duly armed with Kalashnikovs came, but due to fear they ran towards the uncultivated land. The accused/petitioners by following fired at them with their respective weapons due to which Aslam Hayat was hit, fell to the ground and expired there and then. The complainant and Sanaullah, however, escaped unhurt. Being empty handed, they could do nothing and the accused thus decamped from the spot. Motive for the offence was given to be previous blood feud between the parties.
3. Learned counsel for the accused/petitioners submitted that petitioner Shakeel Khan was away from his village at the relevant time being busy in Election campaign of one Malik Mustafa Khan, a contesting candidate of PF-70 Bannu, while petitioner Sahir All Khan being a Chowkidar in Government Primary School Bazar Ahmad Khan was present on duty. Both the said situations have been duly verified by the I.O. who after recording statements under Section 161 Cr.P.C. of the concerned persons with regard to petitioner Shakeel Khan and staff Members of petitioner Sahir Ali Khan alongwith taking into possession copies of the attendance register in the case of latter, have declared both of them to be innocent. He contended that the ocular account of the complainant is not supported by the medical evidence and site-plan and, therefore, by placing reliance on the case law reported as Tariq Bashir and 5 others vs. The State (PLD 1995 Supreme Court 34), Qadir Bakhsh Vs.. Allah Wasayo and others (2008 SCM R 182) and unreported judgments of this Court in Cr. Misc. 278/2003 titled as Dost Mohammad Vs. The State and another decided on 21/7/2003 and Cr. Misc. No, 363/2006 titled Mir Atlas`Khan Vs. The State and another decided on 2/12/2006, he termed the case of the petitioners to be of further enquiry and not hit by the prohibition contained in Section 497 Cr.P.C.
On the other -hand, learned counsel for the complainant resisted the bail prayer of the petitioners on the grounds that they are directly nominated in the promptly lodged report of the complainant- for committing murder of the deceased in broad-day light backed by a motive. The accusation is duly proved by the post-mortem report of the deceased and the recovery or seventeen empties of 7.62 bore and bloodstained earth from the spot. He urged that the plea of alibi allegedly taken by the accused/petitioner Shakeel is oral and not supported by any cogent documentary evidence, while such plea of petitioner Sahir Ali is also not appealing to reasons as the Government Girls Primary School where he is posted is located in the same village where the occurrence has taken place and thus it carry no weight in the eyes of law. His argument was that the names of both the accused/petitioners have been placed in Column No, 3 of the challan and have not been declared innocent by the I.O. rather guilty of the offence charged with. According to him, both the petitioners are reasonably linked with the commission of the crime and not entitled to the concession of bail.
In support of his contentions, reliance-was placed on the judgments reported as Ahmed Khan Vs. The State (1985 SCM R 975). Asghar Khan Vs. The State (2004 P.Cr.L.J. 1252), Jan Mohammad Vs. Abdul Latif and 3 others (2003 M LD 72) and Shadi Khan Vs. Matiullah and another (1989 P.Cr.L.J.
2253).
5. The learned Deputy Advocate General adopted the same arguments as advanced by the learned counsel for the complainant.
6. I have gone through the record carefully and considered the arguments advanced at the bar.
7. While seized of the bail matters, Courts have to see whether reasonable grounds exist for believing that the accused/petitioner is guilty of the offence charged with or otherwise and are not required to deeply touch merits of the case or to go into the details of evidence as it could not be sifted at bail stage. It is true that the accused/petitioners are directly nominated by the complainant for committing the murder of the deceased, but it is equally true that the Investigation Officer has found both of them to be innocent on account of their pleas of alibi. It is the settled principle of criminal law that when the plea of alibi is raised at the earliest possible stage of the occurrence and the same is duly supported by some materials brought on record, it could be taken into account even at bail stage. In the case in hand, both the accused/petitioners have raised the pleas of alibi at the earliest possible opportunity which were enquired into by the Investigation Officer supported by statements of independent witnesses and documentary evidence and after due verification found both of them to be innocent. All these facts when taken together and assessed tentatively makes the case of the accused/petitioners as one of further enquiry and takes it out of the embargo contained in Section 497 Cr.P.C. entitling them to the concession of bail.
8. Consequently, while placing reliance on the dictum laid down in the case law reported as Qadir Bakhsh vs. Allah Wasayo and others (2008 SCM R 182), I accept this application and order the release of the accused/petitioners on bail, subject to their furnishing bail bonds, in the sum of Rs, two lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate.