' QAISER RASHID KHAN, J.---Pirzada son of Akhi Jan, accused/petitioner, has filed this application for his felease on bail in case F.I.R. No,270 dated 9-12-2010 of Police Station Town, District D.I. Khan, registered under sections 302/324/148/149, P.P.C.
2. According to the F.I.R. Lodged by the complainant Haji Payo Khan on 9-12-2010 at 1400 hours in the emergency room of Civil Hospital D.I.Khan, on the eventual day, he along with his brother Mir Badshah, Ghafoor Ahmad son of Gul Ahmad, Sherpao son of Muhammad Noor and his nephew, namely, Shehryar son of Mir Badshah were present in their field at 'Dopher Vela' when in the meanwhile Azizullah, Gula Jan, Amanullah, Khan Afzal, Mir Afzal alias Malik and Zia Khan sons of Akhi Jan, two other sons of Azizullah and four unknown persons, caste Wazir, duly armed with fire- arms came there with a tractor driven by Amanullah and started ploughing their field. The complainant party tried to stop them but at 1245 hours, the aforementioned twelve persons fired at them. With the firing of Azizullah, Mir Badshah was hit and died on the spot, while with the firing of remaining accused, Ghafoor Ahmad, Sherpao son of Muhammad Noor and Shehryar son of Mir Badshah were injured. Meanwhile, the accused Amanullah ran the tractor over the -complainant with which he too, was injured. Motive for the offence was stated to be dispute over the lands.
3. Learned counsel for the petitioner argued that the petitioner was not nominated in the F.I.R. But was subsequently charged in the supplemmtary statement of the complainant. He submitted that the complainant has assigned specific roles and places to the different accused nominated by him. The petitioner was not initially charged but his presence surfaces in the site plan wherein he has been shown at point No,15 firing 'at the injured Sherpao. He further submitted that three other accused, namely, Zia Khan, Toofan and Muhammad Usman have also been shown at Points Nos. 12, 13 and 14 respectively firing at the injured Sherpao when the latter has been hit on his both arms with one entry and one exit wound each and it is to be determined at the trial as to who from among the four accused caused injuries to him and thus the same makes out a case of further enquiry.
4. The learned counsel for the complainant/respondent repelled the arguments of the learned counsel for the petitioner and submitted that the accused/petitioner was not only charged by the complainant in his supplementary statement but also by the other injured P. Ws. With a specific role and moreso recoveries were affected from point-D assigned to him in the site plan along with other co-accused and that he was sharing common intention with the other co-accused. He lastly submitted that the petitioner has remained fugitive from law for a long and unexplained period of over five months after the occurrence.
5. The learned Additional Advocate General also opposed the grant of bail to the petitioner on almost the same grounds which prevailed with the courts below.
6. I have carefully gone through the record and considered the submissions of the learned counsel for the parties.
7. From the available record, it transpires that initially the complainant charged five persons by name, two unnamed sons of Azizullah and four unknown persons for firing at them. It was in the supplementary statement of the complainant that the accused/petitioner was charged and even then the complainant did not disclose the source through which he came to know about the name of the accused/ petitioner. Moreover, for causing fire-arm injuries on the both arms of the injured Sherpao, four persons have been shown in the site plan and thus it cannot be said with certainty.At this stage of the case as to whose fire shots caused injuries to Sherpao. Even in the F.I.R. Lodged, no descriptions, i.e, feature or physique of the unnamed persons have been mentioned. Furthermore, no identification parade was conducted to ascertain as to whether the persons so nominated included the accused/ petitioner or somebody else. Moreover, bail cannot be refused to the accused/petitioner for his abscondence when he is otherwise entitled to the same on the basis of available record.
8. Tentative assessm ent of the materials so far brought on record brings the case of the accused/petitioner within the ambit of further enquiry entitling him to the concession of bail.
9. The application is, therefore allowed and the accused/petitioner is admitted to bail provided he furnishes bail bond in the sum of rupees two lakh with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate.