' GHULAM MOHY-UD-DIN MALIK, J.--- This single order is aimed at to dispose of Criminal Miscellaneous No,125 of 2008 filed by Syed Sanobar Shah petitioner for grant of bail and connected Criminal Miscellaneous No,382 of 2006 filed by complainant Muhammad Saleem for cancellation of bail granted to co-accused Syed Faraz in case F.I.R. No,47, dated 18-10-2006 charge under section 302/34, P.P.C. Registered at Police Station Baterra, District Kohistan.
2. According to the F.I.R. Lodged by Muhammad Salim, his brother Amir Khan along with Said Usman and Gul Sabar on their way to the house of uncle Said Umar were waylaid by Sanobar Shah and his two sons Faraz and Javed Khan. It is alleged that they all fired on Amir Khan, who was hit with the shot, fired with kalashnikov rifle, by Sanobar Shah and died instantaneously at the spot.
Motive was stated to be an enmity over a woman.
3. On the death of deceased post-mortem examination on his dead body was not conducted at the instance of his L.Rs, so after preparation of his injury sheet and inquest report by the police, the dead body was handed over to the complainant for burial etc.
4. The learned counsel submitted that there is a considerable delay in making the F.I.R. And since the post-mortem was not conducted, therefore, the exact duration between the death and post- mortem could not be ascertained: that the maker of the F.I.R. Is not an eye-witness of the occurrence; that he has not disclosed the source of information about the incident; that the two eye-witnesses have not reported the matter to the police rather they have made contradictory statements in their respective statements, as to the time of occurrence, manner of attack. He went on to say that there was held an independent enquiry by a Police Officer, who had totally exonerated the accused petitioner. Further stated that it was night occurrence, went unseen and in the background of old enmity, the petitioner along with his sons has been falsely charged. Further submitted that in the absence of post-mortem report, even the cause of death has not been ascertained nor the nature and dimension of injuries, therefore, in these circumstances, the prosecution case requiring further inquiry into the guilt of the petitioner, he deserves concession of bail.
5. Conversely, the learned counsel for the complainant and State lawyer contended that from the statement of two eye-witnesses, the involvement of petitioner for effective shot has been established; that there were recovered certain articles of the deceased including bloodstained earth from the spot, therefore, the ocular version is supported by circumstantial evidence which connect the petitioner and his co-accused with the crime.
6. I have perused the record carefully and have listened the arguments of learned counsel for the parties at length.
7. I find that the assailants, as per site plan, are shown at higher place in range of mountains while the deceased in depression in the brook time of occurrence being late "Ishha Vela", therefore, in these circumstances the identification of the assailants, the attribution of specific role to one of them from such a considerable distance at night time are questions to be thrashed out at the trial.
8. Moreover, Enquiry Officer Muhammad Khurshid A.S.-I. Has totally disbelieved the prosecution story as set out in the F.I.R. And by the eye-witnesses. He reported that as a matter of fact on the day of occurrence at late night time there was cross-firing between the two rival groups and nobody could see who was injured or killed , in the incident and that later on when the firing was over on the intervention of members of "Tableeghi Jamahat" people saw Amir Khan lying murdered in the ravine. Further he disclosed that before the occurrence petitioner has been critically wounded in a road side accident and thus, in his opinion he could not move and take part in the commission of crime.
9. Besides, if we go through the statements of P. Ws . Gul Sabar and Said Usman it would reveal that they have given different story as to the occurrence. They stated that after "Aftaar" in the late evening they learnt that dry grass of their uncle has been set at fire so they went to extinguish the fire, brushed ashes from the embers and on way back they were fired at from upper side of the mountains by the accused. The Investigating Officer during spot inspection could not get any evidence of burnt grass to believe the alleged eye-witnesses of the occurrence. With regard to the opinion of the Investigating Officer no doubt it is per se no legal evidence and binding on. Court but still it can be considered in matter of bail, particularly when the record shows conflicting version of the incident.
10. In short, all the attending facts and circumstances of the case suggest that there are no reasonable grounds beyond doubt, connecting the petitioner with the crime and that the prosecution case being open to further enquiry, and pending such enquiry against the petitioner he deserves concession of bail.
11. With regard to the connected application (Criminal Miscellaneous No,382 of 2006) for cancellation of bail granted to accused Said Faraz vide order, dated 4-12-2006 by learned Sessions Judge Zilla Qazi, Kohistan, suffice it to say that apart from the grounds noted down above, he is charged for ineffective firing, no empty was recovered from the place of his alleged presence nor there is any other legal corroborative evidence to connect him with the crime. Over and above, there is no proof that he after his release on bail has misused the liberty so in these circumstances Criminal Miscellaneous No,382 of 2006 for cancellation of bail being meritless stands rejected.
12. Accordingly by accepting Criminal. Miscellaneous No,125 of 2008 the petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Judicial Magistrate, who shall ensure that the sureties are local, reliable and persons of means.