1. ' MUHAMMAD TASNIM, J.---Applicant Manzoor Hussain has filed this application seeking pre-arrest bail, who is entangled in Crime No,71 of 2010 Police Station, Mirwah registered for an offence under sections 302, 324, 337-H(ii), 148, 149, 114, P.P.C.
2. Prosecution story is that the case was initiated on an F.I.R. Lodged at the instance of complainant Mst. Dukhal Dasti on 8-5-2010 at 1900 hours in which it is only alleged against the present applicant that he instigated other accused to make firing upon the complainant party, and on his instigation the accused made firing which has resulted in the death of two persons Ghulam Mustafa and Mohammad Bachal; hence the F.I.R. Was lodged as stated above.
3. ' Learned counsel for the applicant has contended that the story narrated by the prosecution in the F.I.R. Is false and imaginary and complainant is an old lady and she cannot distinguish the difference in the nature of arms like SMG, Rifle, Kalashinkov and Pistol. He further submitted that no specific role except instigation has been alleged against the present applicant. He further submitted that the applicant was not holding any arm as per prosecution story and nothing was recovered from him. He further submitted that the applicant is an educated person and is employed in PTCL and at the time of alleged offence he was not present at the place of wardat and injured Shaman has also filed his affidavit before the trial Court saying that present applicant was not present_ at the time of commission of the alleged offence as such the present applicant has been implicated because he is real brother of Hadi Bux; hence for this reason alone the present applicant has been implicated just to harass him and in the last the learned counsel prayed that interim pre-arrest bail earlier granted to the applicant be confirmed on the same terms and condition.
4. ' On the other hand, the learned A.P.-G appearing on behalf of the State has submitted that there are four eye-witnesses namely Kauser Abbass, Ali Raz, Muhammad Ali and complainant and all of them have assigned the role of instigation to the present applicant. He further submitted that on the pointation and direction of the present applicant other co-accused committed the offence as alleged. He further submitted that the name injured witness Shaman is not included in Challan. He further submitted that Challan has been submitted on 28-5-2010 in which the present applicant has been shown as absconder. In support or such contention he relied upon e following cases:-- ' Muhammad Arshad v. The State 2006 SCM R 966.
5. ' Sanaullah and 3 others v. The State 1983 SCM R 15.
6. ' Liaquat Ali v. The State ' 1995 M LD 1254.
7. Now taking into consideration the contentions of the learned counsel for the applicant that he is right in saying that no recovery has been effected nor he was holding any weapon in his hand and he is also right in saying that only role regarding instigation of present applicant has been made by the alleged eye-witnesses. Since the affidavit by the injured has been filed that the present applicant was not available at the scene of offence and he has not taken part in the commission of offence. With regard to instigation it is yet to be determined whether the present applicant was present at the scene or he made instigation to other co-accused to make firing upon complainant party. Such question can only be determined once the prosecution evidence is recorded.
8. ' The judgment cited by the learned A.P.-G. At S.No,1 is distinguishable on facts as in the reported case, the petitioner was armed with pistol along with other co-accused and had raised. Lalkara and chased the complainant party and thereafter caused injury along with otheRs, In the second case with regard to the filing of affidavit, in the reported case, he was only witness who filed the affidavit but apart from that complainant was eye-witness and that judgment is also distinguishable on facts and not applicable to the circumstances of the case. Similarly the last case cited by the learned APG speaks about mere filing of affidavit without any corroborative evidence was not sufficient to shake the veracity of the prosecution story. Prima facie it is very primarily stage and this case cannot be applied in the circumstances of the case.
9. With regard to the enmity the learned counsel for the applicant has submitted that the present applicant has been implicated only due to reason that his brother co-accused namely Hadi Bux has fired upon the deceased person and just to harass the entire family, the present applicant has been implicated. The case of further enquiry is made out.
10. ' Accordingly, the present applicant was admitted to interim pre-arrest bail by this Court vide order dated 26-5-2010, which is hereby confirmed on the same terms and conditions.
11. ' Bail application stands disposed of in the above terms.