' Dost Muhammad and his brother Rubnawaz and Ghulam Muhammad have applied for the grant of bail who were arrested on 8-4-1987 on the charge of murder levelled against them in a private complaint filed by Bahadar, real brother of Jan Muhammad deceased.
2. According to the prosecution, Bahadar complainant alongwith his brother Jan Muhammad deceased and others were present in front of Muhammad's Baithak at 5 p.m. On 2-9-1986 when the petitioners herein, armed with guns came there and addressing Jan Muhammad shouted that how he dared to restrain Muhammad Nazir their brother from passing through his lane and that they have come, now if he has requisite strength he should come forward and stop them, and simultaneously they started firing on Jan Muhammad. Jan Muhammad after being hit with a shot had fired with his gun in self-defence at the assailants hitting Nazir brother of the petitioners. It was also alleged that the complainant reported the matter at Police Station Wan Bhachran but his report was not entered by the Thanedar saying that because an F.I.R. (No, 49, dated 2- 9- 1986) had already been registered at the instance of Sher Muhammad brother of said Nazir, therefore, no other F.I.R. Can be registered. As complainant's efforts made for getting a case registered failed therefore, he was obliged to file the instant private complaint in Court on 3-11- 1986.
3. Having held the preliminary inquiry, Additional Sessions Judge, Mianwali, summoned the three petitioners under section 302/34, P.P.C. Through bailable warrants on 2-2-1987. In compliance to the process issued, the petitioners appeared before the trial Court on 26-2-1987 and applied for the grant of bail. Having heard the parties learned Court rejected the bail plea of the petitioners, arrested them and committed them to judicial custody, hence this application.
4. It may be stated that case F.T.R. No, 49 was registered at the instance of Sher Muhammad, brother of the petitioners, regarding the same occurrence on the fateful day (2- 9- 1986) on the allegation that when Nazir (deceased) with his other relatives was passing in front of Baithak of Muhammad he was attacked by Jan Muhnmmad (deceased in private complaint) and his nephew Sultan and cousin Fateh Khan with guns. Jan Muhammad's fire hit Nazir on the legs whereupon Nazir fired in self-defence at Jan Muhammad and injured him. Thereafter, Sultan fired a shot hitting Nazir in the abdomen and Fateh Khan's shot hit him at his hip as a result whereof Nazir fell down and was removed to the hospital where he subsequently died. Attack on Nazir was made as he was suspected of having liaison with Mst. Phaphi, a relative of Jan Muhammad (deceased in complaint case).
5. It is also worth mentioning that some 3 hours later the same day, Fateh Sher, a cousin of Jan Muhammad (deceased in complaint case) also lodged. F.I.R. No, 50, dated 2- 9- 1986 wherein it was alleged that Nazir (deceased) had fired at Jan Muhammad in front of the Baithak of Muhammad as sequel to an earlier quarrel. The shot hit him in the neck and he fell down whereupon Sultan nephew of Jan Muhammad fired two shots on Nazir in self-defence.
6. Both these F.I.Rs, were investigated first by the local police and then by D.S.P., Musa Khel. In F.I.R.
No, 49, Sultan and Fateh Khan (relatives of Jan Muhammad deceased) have been challaned for the murder of Nazir (brother of the present petitioners) but nobody has been challaned in F.I.R. No, 50 because the only accused mentioned in it was Nazir, who had also died in the occurrence.
7. I have heard learned counsel for the petitioners as well as for the State assisted by learned Counsel for the complainant and also perused the record.
8. Learned State counsel as well as learned counsel for the complainant have stated that the police was hostile towards the complainant from the very beginning and that a twisted version of the incident was incorporated in F.I.R. 50 to favour the accused party and that Fateh Sher, the so- called maker of this F.I.R. Has denied to have lodged this F.I.R. It is further, submitted that the very fact that Nazir (deceased) had passed in front of Baithak of Muhammad duly armed with a gun shows that he was not passing that way innocently and also was not alone but was accompanied by the petitioners as well Lastly, it is urged that in any case the petitioners are prima facie .Guilty of committing offence of murder punishable with death or imprisonment for life, therefore, their case being squarely covered by the prohibitory clause of section 497, Cr.P.C., the petitioners do not deserve to be released on bail.
9. I have carefully considered the facts and circumstances of the case in the light of contentions of learned counsel for the parties.
10. Admittedly, there are two versions of the occurrence and one person on each side has died. The instant complaint has been filed after 61 days of the occurrence. The second version is contained in F.I.R. 49 lodged by Sher Muhammad recorded on the very day of occurrence as indicated above and police has challaned Sultan and Fateh Khan for the murder of petitioners' brother Nazir (deceased) which is pending trial. Furthermore, in the F.I.R. (No, 50 by Fateh Sher, a cousin of Jan Muhammad deceased) registered regarding the murder of Jan Muhammad, the present petitioners were not named as accused.
11. Without expressing on merits of the case lest it should affect the case of either party adversely, taking into account two months delay in filing the complaint and the fact that the complainant party stands challaned for the murder of brother of the petitioners, I am of the view that prima facie there do not exist reasonable grounds to believe that Dost Muhammad, Ghulam Muhammad and Rabnawaz, petitioners, are guilty A of committing offence of murder. Consequently, I allow this petition and direct them to be released subject to their furnishing bail bonds in the sum of Rupees fifty thousand (Rs, 50,000 only) each, with the sureties each in the like amount, each to the satisfaction of the trial Court, till decision of the case.