Petitioner seeks bail in case FIR No, 314 dated 14.7.2009 registered at Police Station District Lakki Marwat.
2. On 14.7.2009 at 0900 hours complainant Mir Nawaz made a report in the Police Station to the effect that on the eventful day, he along with his brothers Abdul Hamid and Tarboor Barkatullah was going from their house for the construction of new under construction house and when reached near the house of one Ahmad Jan, there the petitioner alongwith his co-accused Muhammad Iqbal and Ihsanullah, his brothers, duly armed with Kalashnikovs emerged and started firing at them as a result of which his brother Abdul Hamid got injured and died on the spot whereas the complainant and Barkatullah escaped unhurt. No previous enmity is given. However, it is stated that the accused had reservations on the construction which proved as a motive.
3. During the course of investigation, no empty was recovered from the spot. However, blood stained earth was taken into possession from the place of the deceased. During the post mortem examination one inlet wound was found on the person of the deceased. Barkatullah supported the version of the complainant in his statement under Section 161 Cr.P.C.
4. Learned counsel for the petitioner argued that three real brothers are charged for a single injury which too has not been attributed specifically to any of the three accused. He further contended that no empty was recovered from the spot and that the matter was reported to the police after two hours as the occurrence is stated to have taken place at 0700 hours whereas the report was made at 0900 hours. Further submitted that the petitioner surrendered before the Court of learned Sessions Judge, Lakki which fact indicates that he was innocent. He also argued that an application was submitted by the petitioner to the S.P. Investigation Lakki Marwat for impartial investigation and on the basis of that application statements of certain persons of the locality were recorded who stated to the investigation officer that the petitioner was innocent. He also submitted that the story of the prosecution has been negated by one Abdul Majid son of Muhammad Azim complainant of FIR No, 315 dated 14.7.2009 under Section 324/427/34 PPC.
5. On the other hand, the learned counsel for the respondent argued that there is no delay in lodging the FIR as the distance between the spot and the Police Station is 16/17 kilometers; that the petitioner and his co-accused have committed the offence in furtherance of their common intention and as such every one is vicariously liable for commission of the offence. Hence it is immaterial that the injury has not been specifically attributed to any of the accused; that the remaining co-accused are still at large; that there was no reason for the complainant to falsely implicate the petitioner alongwith his co-accused as there was no previous enmity between the parties.
6. Mr. Zahid Yousaf, learned Additional Advocate General also opposed the petition on the same grounds.
7. It may not be proper to make any observation on each and every point agitated before the Court. In an un-reported judgment of this Court in B.A No, 236 of 2009 authored by his lordship Mr. Justice Ejaz Afzal Khan, bail was granted to the petitioner therein in a case registered under Section 302/34 PPC of Police Station Cantt: Bannu dated 10.4.2009. In para 4 of the said order, it has been observed:-- "The record reveals that as many as three persons have been charged for a single entry wound on the deceased. Except the petitioner, the other two co-accused have become fugitive from. law. No empty whatever was recovered from the spot of occurrence. Petitioner unlike his absconding co- accused surrendered himself to the process of law soon after the occurrence and set up the plea of alibi. The plea thus set up is supported by the affidavits of the respectables of the village who were also examined by the police. They clearly stated in their affidavits and police statements that the petitioner was attending a meeting at the relevant time, Whether surrender of the petitioner to the process of law unlike his absconding co-accused, his plea of alibi supported by the respectables of the village, opinion of the Investigating Officer holding him innocent and the absence of any empty from the spot of occurrence are compatible with his innocence or guilt, are the questions requiring further inquiry. Yes opinion of the Investigating Officer is not binding on the Court but it cannot be ignored altogether, if it tentatively appears to be in line with the other surrounding circumstances of the case."
8. In the case in hand too, three persons are charged for firing at the deceased who had sustained only one inlet wound. The petitioner had surrendered before the learned Sessions Judge, Lakki Marwat for pre-arrest bail. Statements of certain persons of the locality were recorded by-the police who stated that the accused was present in Kotka Gul Hawas Dakhili. No empty has been recovered from the spot. Except for the petitioner, the other two accused have become fugitive from law and the petitioner unlike his absconding co-accused surrendered himself to the process of law, whether surrender of the petitioner to the process of law unlike his absconding co-accused, his plea of alibi and absence of any empty from the spot of occurrence are compatible with his innocence or guilt, are the questions requiring further inquiry.
9. For the reasons stated above, the petitioner has been admitted to bail vide my short order of the even date.