MOHAMMAD BASHIR KHAN JEHANGIRIJ.- This bail application has been filed on behalf of Hamza Ali Khan, and Moula Noor alias Mamali, petitioners, who are facing charge under Section 302/34 P.P.C, in a case registered against them and Faridullah accused in Police Station Meerian, District Bannu, on the 14th August, 1988, at the instance of Shera naz alias Chalaak Malik.
2. According to F.I.R on hearing the report of fire shots from the suburbs of his village Shehr Norar, Chalaak Malik along with his brother Biaz Khan, Umar Nawaz, Mir Nawaz set out for the spot so as to enquire about the cause of firing and so had the other inhabitants of the city. On reaching near the house of Hamza Ali Khan, Biaz Khan brother of the first informant asked Hamza Ali to stop firing.
Nonetheless Hamza Ali, his son Sanaullah, Mamli and Faridullah fired at them as a resuIt of which Biaz Khan was hit and fell dead. The assailants are stated to have been identified by the first informant and his companions in the torch light while running towards their house. Complainant Chalaak Malik went to Police Station, Meerian, and lodged the report at 2230 hours, within 45 minutes of the occurrence.
3. A learned Additional Sessions Judge, Bannu, conceded to the plea of bail advanced by Sanaullah accused on the ground of his age being under I6 years. The concession of bail to the petitioners was, however, refused on the ground that they had been directly charged in the F.LR.That the version of the complainant finds support from the statements of prosecution witnesses recorded under Section 161 Cr.P.C.
4. S.Zafar Abbas Zaidi, the learned counsel for the petitioners, contended that names of the petitioners did figure in the F.I.R, nonetheless there was general allegation of firing against all the three accused; that the petitioners and their co-accused could not possibly be identified by the first informant and the other P.Ws, and that the recovery of empties from point No.1 in the site plan where the dead body was found and that non-recovery of empties from points 5,6,7 and 8 wherefrom the accused- petitioners were alleged to have fired, casts serious doubt on the veracity of the prosecution case.
5. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate General, vehemently opposed the bail application on the grounds that allegations contained in the F.I.R lend ample support from the statements of PWs recorded under Section 161 Cr.P.C; and that recovery of a Klanshinkov, a rifle and two shot-guns with lot of ammunition buried in the heep of dung from within the courtyard of the house of Hamza Ali petitioner was sufficient evidence to dis-entitle the petitioner from the concession of bail.
6. I have gone through the record. Apart from Umar Nawaz and Mir Nawaz PWs named in the F.I.R, statements of Shahar Gul and Sayyed Mahboob ShahA-S. Is attached to Police Station Meerian were also recorded under Section 161 Cr.P.C, which prima facie support the allegaztion of the prosecution. Lethal weapons like Klanshinkov, rifle, shot-guns and matching ammunition in large quantity has also been recovered by the Investigating Officer who had been attracted to the spot on hearing the report of firing. There is no enmity between the parties. The argument that the deceased had sustained only one fire arm injury and that it could not be determined with certainty who was the actual assailant cannot be considered at this stage. Application for bail of the petitioners is, therefore, dismissed.