This is a petition under section 498, Cr. P. C. By Muhammad Yaqoob petitioner for grant of bail in respect of a case instituted against him and three others under section 302/34, P. P. C. At Police Station, Naushera on 11th August, 1980.
2. The brief facts of the case are that Noor Ahmad, complainant, and his brother Faiz Muhammad were grazing their camels in the area of village, Khabaiki, when Shah Muhammad and Wali Muhammad P. Ws. Were also present. All of a sudden Muhammad Yaqoob, petitioner, armed with a gun, Feroze Ali co-accused armed with a gun, Mumtaz co-accused, armed with a hatchet, and Akhtar, co-accused, empty handed, emerged at the spot. All, the petitioner and the three co- accused, came near Faiz Muhammad deceased and Mumtaz and Akhtar co-accused challenged him stating that they had come to avenge the earlier insult. Feroze Ali, co-accused, then fired a shot with his gun, hitting Faiz Muhammad deceased on his neck. Muhammad. Yaqoob, petitioner, then fired a shot with his gun, hitting Faiz Muhammad deceased, who fell down. The prosecution witnesses could not intervene, being afraid of their lives. The petitioner and the three co-accused then ran away from the spot. According to the motive given in the F. I. R., 2/3 months before the occurrence, Feroze Ali co-accused had a scuffle with Faiz Muhammad deceased in village Jhaba, where both had exchanged fist blows.
3. The learned counsel for the petitioner submits that the post-mortem report shows that the deceased suffered five fire-arm wounds of entry in an area 2 c. m. x 2 c. m. On the neck and wound of exit 11 c. m. x 7-- c. m. On the neck which shows that the deceased died as a result of only one gunshot wound and not two. Learned counsel further submits that the Assistant Superintendent of Police, Joharabad, found Muhammad Yaqoob petitioner, innocent and placed him in column 2.
Learned counsel further submits that no motive has been ascribed to the petitioner in the F. I. R.
Though one was added later in the supplementary statement of the complainant, which manifestly is a got up version and the petitioner being an Awan by caste, had no community of interest with the other three co-accused, who were Bhattis, to commit the crime in instance. Lastly learned counsel submits that neither any fire-arm was recovered from the petitioner nor any empty was recovered from the spot.
4. Learned counsel for the State submits that the petitioner is named by the three eye-witnesses, namely, Noor Ahmad complainant, Shah Muhammad and Wali Muhammad, as having fired at the deceased with a shot gun and that according to the supplementary statement of Noor Muhammad, complainant, the petitioner had also motive to commit that crime in instance.
Learned counsel further submits that the Inspector of the Crimes Branch, who conducted the investigation after that conducted by the A. S. P., Jauharabad had found the petitioner to be involved in the crime and in these circumstances the petitioner was challaned with the other co- accused.
5. I have considered the arguments of the learned counsel for the petitioner and the State and have also perused the record. From the post-mortem report, it is clear that the deceased died of one gun shot. The five fire-arm wounds of entry in an area of 2 c. m. x 2 c. m. On the neck show that this was the spread of the pellets which had entered the neck. The second wound of exit in an area of 11 c. m. x 71 c. m. On the neck, shows that this was the wound out of which all the five pellets had en-masse passed out of the neck. There is no other fire-arm wound on any other part of the body, to show that the second gun shot had hit the deceased. According to the F. I. R.Feroze Ali, co- accused, is imputed to have fired the first shot with his gun, bitting Faiz Muhammad deceased on the neck. According to the F. I. R. Muhammad Yaqoob, petitioner, fired the second shot which hit the deceased, but the F. I. R. Does not mention the location of the injury. The post-mortem report also does not show any second gunshot injury. The Assistant Superintendent of Police, Jauharabad, found Muhammad Yaqoob, petitioner, innocent in his investigation and placed his name in column No. 2. Initially, the complainant did not mention in his F. I. R. Any fact to show that Muhammad Yaqoob, petitioner, had any motive to commit the crime, though at a later stage by a supplementary' statement, he introduced the fact that Faiz Muhammad deceased had got Muhammad Yaqoob petitioner and Feroze Ali co-accused involved in a case of theft of buffaloes.
Muhammad Yaqoob, petitioner, is an Awan by caste, whereas all the other three co-accused are Bhattis. Taking all circumstances into consideration, the question whether Muhammad Yaqoob, petitioner, was present and if so, he did fire at Faiz Muhammad, deceased, are questions which call for further inquiry, in these circumstances, Muhammad Yaqoob, petitioner, has made out a case for bail. For the foregoing reasons, this petition is accepted and Muhammad Yaqoob, petitioner, is admitted to bail, subject to his furnish--ing security in the sum of Rupees Twenty Thousand (Rs.
20,000) with two sureties in the like amount to the satisfaction of the Assistant Commissioner, Jauharabad. Copy of this order may be supplied dasti to the petitioner on usual payment.