' MUHAMMAD ALAM KHAN, J.---Sherin and Imroz petitioners herein involved in case F.I.R. No, 187, dated 22-4-2008 under sections 302/34, P.P.C. Registered at Police Station Ghaligay District Swat, having failed to secure bail from the Court of Judicial Magistrate and Addl. Sessions Judge/Izafi Zilla Qazi No,2 Swat, have come to this Court with the prayer for their release on bail.
2. Briefly narrated the facts as gleaned from the F.I.R. Are that Wazir. Gul son of Samar Gul reported the matter to the police in Civil Hospital Barikot District Swat as he was present along with the dead body of Mst. Khalida aged about 18/19 years wife of Behroz (absconding accused) to the effect that on the eventful day he was present in his house and on receiving the information that his sister Mst.
Khalida was taken by people of the village to the Hospital, the complainant reached the Hospital and saw his sister Mst. Khalida fully smashed in blood and lying on a cot. It was reported that on 22-4-2008 at 0600 Behroz son of Sherin had killed Mst. Khalida his wife by firing at her and Imroz son of Sherin and Sherin son of Gul residents of Saidano Killi were also present on the spot and at their instance Behroz Khan has murdered the sister of the complainant namely Mst. Khalida. Thus, all the three petitioners were charged for the commission of the offence.
3. Learned counsel appearing on behalf of the petitioners submitted that there is no eye-witnesses mentioned in the F.I.R., but subsequently under sections 161 and 164, Cr.P.C. The two witnesses namely Bacha Gul son of Inzar Gul and Qadar Gul son of Nazar Gul were examined on 2-5-2008, after about 12 days of the occurrence. Thus, the statements of these witnesses cannot be any help to the prosecution. It was also argued that the autopsy on the dead body of Mst. Khalida was conducted by a lady doctor at 9-30 a.m. On 22-4-2008 and the time between death and post- mortem examination was recorded to be 12 hours and if the same is calculated then the time of occurrence is either 3-00 a.m. Or 4-00 a.m. And not the one mentioned in the F.I.R. It was also argued that mere presence of the petitioners on the spot has been alleged by the complainant with no overt act attributed to them and thus, it was prayed that the petitioners are entitled to the concession of bail. Reliance was placed on the case of Malik Muhammad Akram v. The State 1979 SCM R 56.
4. On the other hand, Mr. Shaukat Ali Yosafzai Advocate, learned counsel appearing for the complainant and Mr. Khizar Hayat Advocate, learned State counsel submitted that the petitioners have been directly charged in the F.I.R. There are multiple injuries on the body of the deceased Mst.
Khalida and the two witnesses have fully charged Behroz Khan absconding accused as well as the present petitioners for the commission of offence. It was also submitted that the petitioners are prima facie involved for vicarious liability and the same will be determined by the trial Court after recording the evidence. Reliance was placed on the case of Muhammad Arshad v. The State (2006 SCM R 966) and thus it was prayed that the petitioners are not entitled to the discretionary relief on bail.
5. I have given my anxious consideration to the facts of the case and perused the record minutely.
Perusal of the record would show that when Mst. Khalida was done to death, she was taken by her villagers to the hospital on one hand the daughter-in-law of Sherin petitioner had been killed who was the sister-in-law of Imroz son of Sherin petitioner but they even did not bother to take the dead body to the hospital or lodge a report in the Police Station and this conduct of the petitioners throws serious doubt on their credentials.
6. Furthermore, the accused petitioners have been directly charged in the F.I.R. The occurrence is duly supported by the statements of the two eye-witnesses whose statements have been recorded under section 164, Cr.P.C. The involvement of the petitioners with respect to the vicarious liability will be determined by the trial Court after recording of evidence. The challan in this case is complete, which will be put in Court. Thus reasonable grounds exist to believe that the petitioners are prima facie involved in the commission of offence and are not entitled to the concession of bail at this stage, in view of the dicta handed down in the cases of Muhammad Ismail v. Muhammad Rafique and another, (PLD 1989 SC page 585 (C) and Mir Zakam and another v. The State and another (PCr.LJ 1999 page 927).
7. In view' of the facts and circumstances of the case narrated above, there is no force in this bail application, which is hereby dismissed.
8. Above are the reasons for my short order, dated 22-8-2008.