' MIFTAH-UD-DIN KHAN, J.---Petitioners Abul Hassan and Zahid-ulHassan have been refused bail by the courts below in case F.I.R. No,218 dated 26-7-2011 of Police Station Usterzai, District Kohat, registered under sections 302/ 324/34, P.P.C., therefore, they have moved the present bail petition before this court.
2. The brief facts of the case are that on 26-7-2011 at 22-40 hours, complainant Munir Hussain took the dead body of his servant deceased Muhammad Murtaza and lodged the report that on the day of occurrence at 20-45 hours, they along with the deceased were going to Dagai Hujra situated in Usterzai Payan for their personal work and in the meanwhile the present petitioners duly armed fired at the deceased Muhammad Murtaza, .Who was injured while complainant and P.Ws.
Escaped unhurt; that the deceased on way to the hospital succumbed to the injuries. Motive for the offence is stated to be a previous blood feud between the petitioner and complainant party.
3. Learned counsel for the petitioners contended that there is a delay of more than three hours in lodging the report, which has not been explained.. He further submitted that the occurrence had taken place at night time and no source of light has been shown, hence identification of the petitioners was doubtful. He further submitted that the company of deceased with the petitioners is not proved and the enmity exists between the complainant party and the petitioners, but no explanation has been given as to why the real target was missed and deceased was murdered in the incident. He further submitted that no blood has been recovered from the spot and the recovery has not been effected from the places of the petitioners and it is yet to be probed as to which of the two petitioners is responsible for the effective firing, therefore, the case of petitioners is of further inquiry, hence they are entitled to the concession of bail.
4. The complaint was served before the Deputy Registrar; but none appeared before court today, hence the case was argued by the learned A.A.-G. The learned State counsel opposed the bail petition on the ground that the petitioners are directly charged in the F.I.R. And from, tentative assessm ent of the facts available on record, the petitioners are prima facie connected the an offence covered by the prohibitory clause of section 497, Cr .P.C. Therefore, they are not entitled to the concession of bail.
5. Perusal of the record reveals that the occurrence had taken place on 26-7-2011 at 20-45 hours, but no report was lodged in the P.S. In spite of the fact that the deceased had succumbed to the injuries on way to the hospital and that the, registration of case was delayed for about three hours without any plausible explanation. Admittedly, the enmity exists between the complainant party and the present petitioners, but it has not been explained as to why the real target was missed and the deceased with whom the petitioners had no enmity, was killed in the occurrence. The occurrence had taken place at night time, but there is no mention of source of light regarding the identity of the accused-petitioners. No blood has been recovered from the spot while the empties have not been recovered from the, places of the accused-petitioners.
6. Keeping in view the delay in lodging the report, non-mentioning of source of light regarding the identity of the petitioners in the darkness of night, non-recovery of any blood from the spot and empties from the places of the petitioners, non-explanation as to why the complainant and the P.Ws. Who were the real target were missed while the deceased with whom the petitioners had no enmity, was fired at as well as the fact as to which of the two petitioners is responsible for fatal injuries, caused to the deceased, the case of the petitioners definitely requires further investigation.
Resultantly, this bail application is accepted and the petitioners are admitted to bail in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.
' The observations made are tentative in nature and shall not prejudice the case of either party during trial.