' SHAH JEHAN KHAN YOUSAFZAI, J.---Accused-petitioners Naimat Ullah, Khaliq Dad and Muhammad Imran facing prosecution in case F.I.R. No,786 dated 27-9-2010 under sections 302/324/34, P.P.C.
Registered at Police Station, Mathra District Peshawar were refused bail by the Courts below. Now they have approached this Court for their release on bail.
2. Succinctly the prosecution case as narrated in the F.I.R. Lodged by Saadat Khan complainant on 27-9-2010 at 1300 hours at Police Station Mathra where he brought the dead body of his deceased brother Muhammad Hussain, is that on the same day at 1315 hours he along with his brother Muhammad Hussain who is a school teacher in Kouchian were proceeding towards Ali Muhammad Ghari when reached the place of occurrence, they noticed accused Naimat Ullah, Khaliq Dad, Imran alias Nanay and Adil duly armed with deadly weapons were standing and when the complainant party neared them, the accused party started firing at them as a result of which Muhammad Hussain the brother of the complainant was hit and died on the spot while the complainant escaped unhurt. Besides the complainant the occurrence was witnessed by Muhammad Jabraan who was already present there. Motive is stated to be the land dispute between the parties.
3. During the investigation of the case Hamidullah Jan father of Muhammad Adil accused moved an, application to the SSP Investigation, Peshawar regarding the innocence of his son who was stated to be on duty in the Pak: Army A.C. Centre, Nowshera on the day of occurrence. The said application was enquired into from the concerned quarter and the Incharge Commanding Officer Lieutenant Colonel addressed a letter to the S.H.O. Mathra that Adil Khan is serving in his Unit since 16th October, 2009 and he was present in the Unit on 27-9-2010. The said Adil Khan was placed in Column No,2 of the challan.
4. The house search of the petitioners was conducted .But neither they were found present there nor any weapon of offence recovered. They applied for ad-interim pre-arrest bail when they were already proceeded under sections 204 and 87, Cr.P.C. They were granted ad-interim pre-arrest bail which was subsequently not confirmed and were arrested in the case on 1-12-2010.
5. Learned counsel for the accused-petitioners contended that it is un-seen occurrence and for the single entry wound four persons are charged out of which one Adil Khan has succeeded in establishing his plea of alibi. One empty of .30 bore was recovered from the spot which indicates that the occurrence was committed by a single person and the entire male members of* the accused family has falsely been roped.
' Further contended that the presence of the complainant on the spot is doubtful in the circumstances that he did not disclose the calibre of weapons carrying by the accused-petitioner and at the relevant time he and the deceased were only at a 4istance of 12 feet from the accused party and due to such short distance the escape of the complainant is uneven and despite firing by four accused persons the deceased sustained a solitary entry wound. The presence of Muhammad Jabraan son of the deceased is also shrouded in mystery as he is deposed to be a chance witness. In support of his contentions learned counsel for the petitioners relied upon 1991 M LD 2564 (Peshawar), PLD 1995 Supreme Court 34 and 2003 PCr.LJ 1149 (Peshawar).
6. Conversely, learned counsel for the complainant with the assistance of the learned Deputy Advocate General for the State refuted the grant of bail to the petitioners on the ground that they are directly charged by name in the promptly lodged F.I.R. And due to common object and intention under the principle of vicarious liability each one of them is liable for capital punishment provided for the offence with which they are charged. There is motive behind the occurrence and the version of the complainant has got corroboration in the shape of recovery of blood stained earth and an empty of .30 bore Pistol and the post moftem report. Reliance was placed 1999 PCr.LJ 403 (Peshawar) and 2006 PCr.LJ 184 (Peshawar).
7. I have given my anxious consideration to the arguments advanced by the learned counsel for- the parties and have also gone through the record of the case with their able assistance.
8. It is undisputed fact that the four accused are male members of the same family wherein one Adil Khan was stated to be present in the Military Unit at Nowshera on the date of occurrence and has been placed in Column No,2 of the challan. The deceased sustained a single entry wound from a very close distance of 12 feet which could be inflicted by a single accused. The presence of the complainant and Jabraan the son of the deceased .Posed to be the eye-witness of the occurrence is yet to be established at the trial as escape of the complainant from the firing of four accused from a distance of 12 feet does not appeal to a mind of reasonable person. Out of four accused no body has been named for the effective firing. The complainant and Jabraan son of the deceased in their statements before the police did not disclose the calibre of the weapons carrying by the accused party at the time of commission of offence.
9. Though the petitioners are charged for an offence carrying capital punishment falling under the restrictive part of subsection (1) of section 497, Cr.P.C. But the Court has to make a tentative assessm ent of the prosecution case and the plea of defence at bail stage for arriving at a conclusion as to whether reasonable grounds exist or non-exist to hold that the accused are reasonably connected with the commission of offence.
10. On the accused Adil Khanoraised a plea of alibi which was A inquired into and found correct, therefore, his name was placed in Column No,2 of the challan which fact makes the' case of the accused-petitioner one of further inquiry. In a judgment reported as 1999 PCr.LJ 403 (Peshawar) relied uptin by the learned counsel for the complainant, bail cancellation was allowed by holding that the accused would only be entitled to discretionary relief of bail when on tentative assessment of material brought before it, the Court would reach the conclusion that n4 reasonable grounds existed to believe that the accused was guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for ten years and in absence of any such finding, the Court would be debarred to hold that the case requires further probe. In the instant case after making tentative assessm ent (Attie case of prosecution it is found unreasonable that the complainant is escaped unhurt while riding the Motor Cycle from the firing made from a distance of 12 feet Ind it would also be uneven that the deceased sustained solitary entry wound by the firing of four persons through deadly weapons. The complainant who is the real brother,of the deceased and the motive alleged was relevant for both of them. After falling on the ground due to injury received by the deceased the complainant must ,. Have stopped his Motor Cycle and was at the mercy of the accused party but there is no allegation of firing upon him after the death of his brother who sustained solitary entry wound on his neck. In the case reported as 2006 PCr.LJ 184 (Peshawar) it was observed that though a solitary injury was found on the person of The deceased for which six persons were charged but the injuries found on relative of the deceased and complainant who at the relevant time, was accompanying them, could not be overlooked. Even if number of injuries court be disproportionate to number of accused persons that would not be a ground to release the accused on bail particularly when there is a strong motive and prolonged abscondence while in the present case four persons allegedly opened fire at the complainant and his deceased brother from a close distance of 12 feet but the deceased sustained solitary entry wound. There was no blood feud enmity between the parties .But only a civil dispute and in that respect the Investigating Officer has not collected any evidence to observe gravity of the dispute.
The solitary injury was sustained by the deceased and one empty of .30 bore Pistol was also recovered which indicates that the occurrence was committed by a single accused and even the presence of the complainant and Jabraan is yet to be established at the trial. The accused- petitioners themselves surrendered before the Court for the grant of ad interim pre-arrest bail and on its recall they surrendered before the police, therefore, their disappearance for short span of time is not sufficient to hold the same as a fact leading towards their guilt. Both the cited judgments are of no use in the present case.
11. In 1991 "MLD 2564 (Peshawar) relied upon by the counsel for the petitioners, one of the three accused persons was charged to have commanded other two to open tire at the deceased and that the deceased was hit and fell down due to firing of one of the accused and the remaining two charged for further indiscriminate firing at the deceased which also hit the deceased and died on the spot but while examined by the Medical Officer a single firearm inlet wound which has also caused with corresponding exit wound was found on his person and in such circumstances the case of the prosecution was found one of further inquiry. In a case reported as 2003 PCr.LJ 1149 (Peshawar) three persons were charged for causing two injuries on the person of the complainant, it was observed as to whether the occurrence is committed by one person or more than one whose fire proved effective and even if all the three were there and had caused injuries on non-vital part of the body, the intention to kill the complainant was found one of further inquiry and it was observed that it is a general tendency that people throw wide net to implicate even those wio have no hand in the commission of the crime. In the present case the occurrence may have been committed either by one of the accused charged for the offence or by some body else but since the complainant and Jabraan son of the deceased posing to be the eye-witness did not pin point that whose fire caused solitary injury to the deceased and the entire male members of the accused family have been roped which requires further probe. In PLD 1995 Supreme Court 34, a Division Bench of the august Court has thoroughly discussed the principles for the grant of bail in non-bailable offences and the offences falling under the restrictive part of section 497, Cr.P.C. It was concluded that even in a case carrying capital punishment falling under subsection (1) of section 497, Cr.P.C. The Court has to make a tentative assessment of the available record and if no reasonable grounds exist to believe that the accused are reasonably connected with the commission of such an offence, would be entitled for the grant of bail under subsection (2) of section 497, Cr.P.C.
12. For the aforesaid facts and circumstances of the case I found the case of the petitioners one of further inquiry and they are entitled for the grant of bail. Therefore, this bail application is accepted and the accused-petitioners are allowed bail provided each of them furnishes bail bond in the sum of Rs,1,00,000 (rupees one lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate who shall ensure that the sureties must be local, reliable and men of means.
' The above are the reasons of my short order announced on 4-2-2011.
' Before parting with this judgment I must clarify that the observations made above are tentative in nature and shall not prejudice the case of either side at the trial.