' Dost Muhammad Khan, J.--Petitioners (i) Awal Khan (ii) Shahid Khan (sons of Maula Dad Khan),
(iii) Jahangir (iv) Munawar Khan (v) Sadaqat Khan (Vi) Kaleem Ullah (sons of Awal Khan) (vii)
Khalid Khan and (viii) Shauk'at Khan (sons of Shadi Khan), seek leave to appeal against the judgment/order dated 28.10.2016 rendered by the learned Single Judge of the Peshawar High Court, Bannu Bench, Bannu where prayer for bail of the petitioners was dismissed.
' We have heard learned ASts for the petitioners, for the complainant and for the State and have gone through the record and also put questions to the Investigating Officer, present in Court.
2. According to Crime No, 437, registered by PS Lakki Marwat on 06.10.2016, the occurrence allegedly took place at 15:30 hours which was reported by Muhammad Amin .Khan, complainant to ASI attached to the Causality Room of City Hospital Lakki Marwat at 16:00 hours, to the effect that on the fateful day he along with his son Momin, nephew Parvaiz Khan and brother in law Hameed Ullah Khan was present in their house and were celebrating Eid when at about 15:20 hours from the neighboring house of Awal Khan rock pieces were thrown to his house and because of that they came out to the street and called Awal Khan as to why they were doing so and what was their sin.
Saying this, it is further alleged, that Awal Khan and the other co-accused, now petitioners along with an unknown accused came out from their house and all the nine accused armed with Kalashnikovs simultaneously fired at them. The complainant was not hit, however his son Momin Khan, nephew Parvaiz Khan and his wife's brother Hameed Ullah were hit with the shots and were glievously injured. After the occurrence, the accused fled away.
3.Although crime empties of different bore were recovered from the spot, however, no crime weapon. was recovered from any of the petitioners.
4.Injured Parvaiz Khan succumbed to the injuries in DHQ hospital Bannu where, he was referred. The MLR, available on record, shows that the deceased had sustained one firearm entry wound (1/4" x 1/4") on right lumber back while exit was found in mid abdomen measuring 1" x 1". Similarly, injured Momin Khan is shown to have sustained two small injuries (1/6 x 1/6) on the back Of right knee while injured Hameed Ullah sustained a bunch of multiple firearm entry wounds on lower abdomen and upper thigh in area of approximately 12" x 12".
5.The learned ASC for the petitioner pointed out that beside 7.62 bore empties, some empties of .30 bore and two empties of .12 bore were also recovered.
6.A look at the site plan would show, that firing was made at the victims from a short distance for which nine persons were charged in all, however, as the medical reports / autopsy report indicate that except the deceased who sustained injury with a bullet, the reset of the two injured persons, most probably got injured with the fire shots made from a short gun because there was no exit wound and the locale' and the size of injuries on both the injured would suggest that they sustained injuries with the short gun, not attributed to anyone of the petitioners.
7.The number of injuries on the person of the deceased and the two injured further suggest that the noose has been thrown much wider by the complainant, charging two real brothers and their sons and an unknown accused. Kalashnikov rifle is a very formidable weapon of the day. In case if nine persons had participated in the crime, none would have escaped alive including the complainant in particular. The injuries caused with such rifles would be of size of 1/4" x 1/4" on human body because of the size of bullet of the said rifle but here, we are confronted with a different situation, otherwise too, Kalashnikov rifle is fully automatic rifle and if nine rifles were at all used indiscriminately that would have caused considerable number of injuries to the victims including the deceased and the complainant's unhurt escape was impossible. Thus the medical evidence apparently contradicts the ocular account and when no male member from the same family has been spared because all of them have been enrobed, which fact is not getting support / confirmation from the medical evidence rather it is in conflict with the same and because the recovery of the two .12 bore empties would further strengthen the view that the two injured have sustained short gun injuries with pallets and not with bullets.
8. In a situation like this, this Court in the cases of:-- (1)Khan Mir v. Amal Sherin (1989 SCM R 1987)
(2)Muhammad Hanif v. Manzoor & 2 others (NLR 1981 SC 367)
(3)Syed Khalid Hussain Shah v. The State (2014 SCM R 12) ' held that when the medical evidences is in conflict with the ocular account then, benefit of doubt at bail stage must go to the accused. In the case of Muhammad Hanif vs. Manzoor (supra), it was held as follows:-- "It is true that at the stage of deciding the question of bail, the Court is not enter upon a detailed appreciation and examination of evidence, but it is also clear that the question cannot be decided in vacuum and the Court has to look at the material available when the bail is applied for. Now, in the present, case, result of medico-legal examination of the deceased was available and .the learned judge of high Court could not have refused to look at it."
9. As the number of injuries on the deceased, a single inlet and exit wound and two short fired at the two victims each with the short gun probably is the job of two persons at the most but nine persons have been charged for effectively firing at them. Thus, the contradiction between the ocular account and medical evidence has rendered the case of the petitioners to be one of further inquiry at the movement.
10. Let the prosecution explain these lapses at the trial by adducing plausible, convincing and reliable evidence. However, till then refusing bail to the petitioners, eight (8) in numbers would not be justified, keeping in view of the above principle, so laid down by this Court.
' Accordingly, the petition is converted into appeal and the same is allowed.
' These are the detailed reasons for our short order of today which is reproduced below:-- "For the reasons to follow, the petitioners are admitted to bail in case F.I.R. No, 437 dated 6.7.2016, PS District Lukki, but subject to furnishing surety in the turn of Rs,2,00,000/- each with P.R. Bonds in the like amount to the satisfaction of the trial Court.
' Petition is converted into appeal and allowed."