' MUHAMMAD SAFDAR KHAN SIKANDARI, J.---Dissatisfied from the bail refusal order, dated 6-10-2009 passed by Judicial Magistrate, Paharpur and the subsequent bail dismissal order, dated 14-10- 2009 passed by Additional Sessions Judge-I, D.I. Khan, the petitioner has come up to this Court for securing the post-arrest bail in case F.I.R. No,210, dated 10-9-2009 registered under sections 302/324/ 148/149, P.P.C. At Police Station Paharpur, District D.I. Khan.
2. Concise facts forming the background of the prosecution case are to the effect that complainant Muhammad Ramzan reported the occurrence to the police in the Civil Hospital, D.I.
Khan wherein he alleged that on the eventful night at 2400 hours, he along with other inmates of the house were asleep in the courtyard of his house. One Ghulam Samdani climbed over the wall and raised threatening shout to the complainant with dire consequences. The complainant noticed Ghulam Samdani, Dr. Mumtaz, Rehmat Shah, Suleman alias Saleem, Muhammad Amin and one unknown person sitting on the wall of complainant's house who opened fires at the complainant party with their respective firearms with which Muhammad Kamreen got hit and died on the spot whereas his other son Hashmat, daughter Mst. Aisha Bibi and his wife Mst. Zaitoon Bibi received injuries while the complainant fortunately escaped unhurt. The perpetrators, after the occurrence, decamped from the spot. The motive described by the complainant is over some previous brawl.
3. Mr. Salirnullah Khan Ranazai advocate, counsel for the petitioner contended that the occurrence has taken place at midnight in the darkness and the PWs. Have not identified the actual culprits but the complainant has thrown the net too wide to implicate so many innocent pemons of the accused party in spite of the fact that the petitioner is neither the caste fellow of his co-accused nor he has any direct motive for inflicting injuries to the complainant party nor he has shared the common intention with the other co-accused for the commission of offence and thus he is entitled to bail under subsection (2) of section 497, Cr.P.C. Learned counsel for the petitioner further contended that the mere mentioning of the name of petitioner in the F.I.R. Will not held him responsible for the commission of the offence when there is no reality in the prosecution version because the site plan contradicts the story of complainant as he has not mentioned those accused who came down from the wall towards his house and started firing at the victims. He further urged before me that the petitioner was not visible to the complainant and other P.Ws. And has not been correctly identified at the time of firing because the place of firing of petitioner, as envisaged from the site plan, is covered by shadow of trees and that too at night hours and his identification in the light of bulbs is immaterial, hence, the tentative assessment of the prosecution case will give extension of benefit of doubt to the petitioner for the purpose of releasing him on bail.
' On the other hand, Mr. Fazlur Rehman Baloch learned counsel for the State assisted by Muhammad Ilyas Marwat Advocate for the complainant urged that all the accused including the petitioner are directly charged in the F.I.R. By name for indiscriminate firing at the complainant party and committing the murder of Muhammad Kamran and causing injuries to other victims comprised of kids and as such the petitioner is not entitled to bail. They further urged that the prosecution case is supported by eye-witnesses as well as injured P.Ws., therefore, application of the petitioner for bail merits dismissed.
4. I gave my careful thought to the above arguments advanced before me and perused the materials available on record.
5. As evident from the contents of F.I.R., the occurrence has taken place at midnight i.e, 2400 hours and the complainant as well as P.Ws. Have claimed the witnessing of the petitioner in the light of the blub installed in the house but it is noteworthy that the Investigating Officer has also shown two trees in the site plan wherefrom the petitioner has been shown firing at the deceased and victims from point No,6 which will make the identification of the petitioner at the ibid point doubtful and even at the occasion of haphazard manner when it naturally occurs during firing. The Investigating Officer has recovered eight empty shells of 7.62 bore from point-D inside the house, however, the complainant has not disclosed the name of anyone including the petitioner for firing at the complainant party while descending from the wall towards the house nor there is any F.S.L. Report on the file regarding the empty shells to show as to how many perpetrators have taken part in the commission of offence whereas the complainant has also categorically given the role of firing to the petitioner while sitting on the wall which is a discrepant version making the prosecution case favourable for extending the bail to the petitioner under the contemplation of subsection (2) of section 497, Cr.P.C. Reliance is placed on 2009 SCM R 181, PLD 2Q09 Peshawar 28, 2003 PCr.LJ Peshawar 519 and 2009 PCr.LJ Lahore 110.
6. One another thing, most important, is that counsel for the petitioner has attached previous treatment and medical documents of the petitioner with the application which clearly indicate that the petitioner has been declared by the concerned doctor to be disabled person aged about 62 years, then how it was possible for him to ascend or descend the wall when the femur bone of his left leg is suffering from compound old fracture, therefore, this question will require further probe at the time of recording evidence of the P.Ws. In the trial Court. At present reasonable grounds exist for believing that the petitioner has not been connected with prima-facie guilt falling under the barring clause of B section 497, Cr.P.C. And hence, without discussing the other merits of the case, I am inclined to accept this petition and admit the petitioner to bail on furnishing bail bonds in the sum of Rs,2,00,000 (Rupees two lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate Sub-Division Pharpur, District D.I. Khan.