' HAMID FAROOQ DURRANI, J.---The petitioner along with four co-accused was arrested on 28-3- 2008 in pursuance to crime under sections 324/148/149/337-A(2) F(4), P.P.C, reported through F.I.R.
No,469 dated 1-10-2007 Police Station Wari District Dir Upper. One of the accused namely, Bacha Wazir son of Muhammad, reportedly died after the occurrence.
' Complainant Izzat Khan son of Ramdad Khan reported the matter in terms that on the relevant day he was present in his house along with his brother Wasiyat Khan when at 1300 hours the accused Bacha Wazir called them from outside the house. They came out and saw all the accused including the petitioner present, who were duly equipped with firearms. An altercation cropped up on the pretext of bringing firewood from the property of assailants/accused which resulted in attack by the accused upon the persons of complainant party.. A blow of petitioner Sher Zada was reported to have been received by the complainant at his forehead while the firing by Bacha Wazir caused -injury in the right thigh of Wasiyat Khan. All, the accused simultaneously were claimed to have fired upon the complainant party. Shahid son of Faizullah and Aqal Wazir son of Nasray both residents of the village were stated to be the eye-witnesses besides the complainant. The subject of altercation was reported to be the motive for occurrence.
' The petitioner and co-accused Muhammad, Bahader Khan and Islam-ud-Din jointly applied for their release on bail to the learned Additional Sessions Judge/Izafi Zilla Qazi Wari who was pleased to allow the relief to all the applicants except the petitioner whose application was dismissed on 18-4-2008, hence this petition.
2. Learned counsel for the petitioner contended that as per the arrangement of accused and the injured, as reflected through the site-plan, the petitioner was shown at the back of complainant, however, the latter received no injury at the said side. It was added that in view of contents of F.I.R.
All the accused except Bacha Wazir were assigned similar role of causing Butt blows to the complainant besides that of firing. The rejection of bail petition of petitioner by the learned Court was, . Therefore, in disregard of principle of consistency. He further contended that the injury attributable to the petitioner entailed primary punishment of Arsh or Daman while the sentence of imprisonment was made discretionary through the Statute, therefore too, keeping the petitioner in confinement at pre-trial stage, was of no useful purpose. Learned counsel relied on 1999 PCr.LJ 230/1700, 2005 PCr.LJ 1604 and 2007 YLR 2102.
3. On the other hand, learned counsel appearing for complainant vehemently pressed into service the delayed arrest of the petitioner and stated that the abscondence on his part was to definitely exclude the case of petitioner from favourable consideration. Further, a specific role was attributed to the petitioner out of the whole party of accused, therefore, his case was not at par with the others, In his view, as the punishment for alleged offence fell within, the prohibitory part of section 497, Cr.P.C., the petition in hand was liable to be rejected. Adding to his arguments, learned counsel contended that the parties were known to each other and in presence of motive there was no occasion for erroneous implication of the petitioner.
' Learned Additional Advocate General adopted the stance on behalf of the complainant.
4. It is true that in the contents of F.I.R. a specific role of causing blunt weapon injury to the complainant is assigned to the petitioner, however, the eye-witnesses mentioned in the report are not consistent in the said respect. In his statement recorded under section 184, Cr.P.C. A the witness Shahid Khan did not mention the petitioner specifically causing injury in the forehead of complainant. The assault has been conspicuously attributed to six persons. On the other hand, Aqal Wazir while narrating the episode sated that all the six accused gave butt blows to Izzat Khan as well as Wasiyat Khan. The said accused also fired upon the complainant party. The injury received by complainant Izzat Khan was due to the blow caused by petitioner. It is added in the statement that the injured also received other 'blows besides those mentioned in the F.I.R. It would be useful to refer to the medical report wherein the injured Izzat Khan is shown to have received a solitary injury in his forehead, which was 3.5 c.m. Long and was caused through a blunt weapon.
5. It is also noticeable that in the site-plan no recovery of crime empty is shown to have been made -from the point where the petitioner was stationed while from almost all other points of presence of co-accused such recoveries are affected. The formation of a close cluster by accused around the complainant at the relevant time, as indicated in the site-plan, would also be suggestive of further inquiry in order to connect the petitioner with the alleged offence.
6. In the above stated facts and circumstances, the possibility of similarity of role by all the accused except Bacha Wazir can also not be ruled out in the case in hand. Needless to mention that all the accused were arrested on same day i.e. 28-3-2008.
' Resultantly, the petition in hand merits acceptance, which is accordingly allowed. The petitioner shall be released on furnishing bail bonds in the sum of Rs, two lac with two sureties each in the like amount to the satisfaction of learned trial Court. It is, however, observed that the contents of instant order shall not affect the merits of the case in any manner whatsoever.