' ASSADULLAH KHAN CHAMKANI, J.---Petitioner Muhammad Zareen has sought post-arrest bail in case F.I.R. No,81 dated 30-4-2010 registered with Police Station, Dargai, District Malakand, for the offence under sections 302, P.P.C.
2. Brief facts of the case are that Muhammad Imran lodged a report in Civil Hospital, Dargai, that few days prior to the incident, his nephew Fazal Amin resident of Wari, District Dir, came to his house as guest and on 30-4-2010 he along with his other companion, namely, Muhammad Ayaz, Sarfaraz, Aman Ullah, Said Muhammad Khan and Muhammad Zareen went out to the barren land, situated at Hajab Kalay, for walking where they were busy in small talks, in the meanwhile, at 17-00 hours his companion Muhammad Zareen was checking his pistol but the same went off as a result of which his nephew was hit on his chest. He disclosed no motive regarding the occurrence, therefore, he charged the present accused-petitioner for his negligent act.
3. Learned counsel for the petitioner has contended that the facts of the case do not attract the provision of section 302, P.P.C. As there was no mens rea or intention to kill Fazal Amin deceased; that the facts of the case at the most attract the provisions of section 319, P.P.C. Which is a bailable offence; that the petitioner had no motive to kill the deceased, therefore, the case of the petitioner is of further inquiry. He further submitted that the petitioner is behind the bars since 14-6-2012 but there is no chance of early conclusion of the trial because trial in case has been commenced on 12-7-2012 but till date statements of only formal P. Ws. Have been recorded, therefore, the petitioner is entitled to the concession of bail.
4. Conversely, learned D.A.-G. Has opposed the bail application by submitting that the petitioner is nominated in the F.I.R. With a specific role of causing fatal injury to the deceased which is supported by the medical evidence and statement of Bakht Zameen. He submitted that the accused remained fugitive from law for sufficient time and trial in the case has also been commenced, therefore, at this stage of the case, he is not entitled to the concession of bail.
5. I have considered the arguments of learned counsel for the parties and have gone through the record of the case.
6. A perusal of contents of F.I.R. Would reveal that petitioner was checking his pistol .30 bore but it went of as a result of which the deceased was hit and died later on in the hospital. The bare perusal of contents of F.I.R. Shows that the complainant has advanced no motive for the crime and Pistol went off unexpectedly, which resulted in the present occurrence, The complainant and the eye-witnesses in their statements recorded under section 161, Cr.P.C. Charged the accused- petitioner for his negligent act. There is nothing on record which could suggest that accused- petitioner was having any motive or intention to commit the murder of deceased. Though, Bakht Zameen in his statement under section 164, Cr.P.C. Disclosed motive but he recorded his statement on 7-5-2010 after more than one month of the occurrence, therefore, the evidentiary status of his statement would be seen by the trial. Court after recording statements of all the prosecution witnesses: In this view of the matter, the question as to whether the petitioner would ultimately be convicted under section 302, P.P.C. Or would he be held guilty under section 319, P.P.C., which is a bailable offence, would be determined after conclusion of the trial. So, a doubt about the applicability of section 302, P.P.C. In this case is floating. Benefit of doubt can be given even at the bail stage.
7. The record further reveals that accused-petitioner has been arrested in the case on 14-6-2012 and till date only statements of four formal P.Ws. Have been recorded out of the entire lot of seventeen prosecution witnesses. It has also been observed that statement of P.W.4 has been recorded on 15-12-2012 and after that till 19-6-2013 the prosecution has failed to produce its single witness while according to Nizam-e-Adl Regulation, 2009, such like cases are to be decided within four months. In this view of the matter, keeping petitioner behind the bar for indefinite period waiting conclusion of trial would serve no useful purpose. A tentative assessment of record would prima facie show that there exist reasonable grounds to believe that guilt of the accused- petitioner requires further inquiry and he deserves to be released on bail.
' So, keeping in view the above facts and circumstances of the case, this bail applications is allowed and the petitioner be released on bail provided he furnishes bail bonds in the sum of Rs,1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means. However, finding of this Court has no bearing on the merit of the case, trial Court should decide the case independently in the light of the evidence produced by the prosecution.
' These are the reasons of my short order announced on 31-7-2013.