Rabnawaz alias Rabba, Shah Nawaz and Khuda Bakhsh, petitioners herein, are accused of offence under section 302 read with section 34 of the Pakistan Penal Code. The case has been registered against them at Police Station, Saddar, Dera Ismail Khan, at 17-00 hours on the 21 of October, 1989, vide F.I.R. No.328.
2. According to the first information report lodged by Mst. Saeeda Bibi complainant at her village Teekan, she alongwith her sister, Mst. Mumtaz Bibi, left their house to provide meals to their father Ramzan who had hired a tractor for ploughing their field near the graveyard. At that time, Rabnawaz alias Rabba, Shah Nawaz and Khuda Bakhsh were exchanging hot words with their father. Within their sight, all the three petitioners caught hold of and knocked down their farther.
Khuda Bakhsh and Shah Nawaz are alleged to have overpowered him while Rabnawaz petitioner constricted the neck by means of his both hands. On seeing the first informant and her sister, all the three petitioners left the deceased and made good their escape. According to the F.I.R., when the complainant and her sister went near their father, they found him dead. Muhammad Nawaz, a co-accused of the, petitioner had been charged for conspiracy. Motive for the offence is an earlier case of attempted murder.
3. It appears that Mr. Abdul Manan-Khan, S.H.O. Saddar, Dera Ismail Khan, was on routine Gusht when he learnt about the occurrence. He, therefore, proceeded to the spot in village Teckan situated at a distance of about 7/8 kilometres from the police station and recorded the statement of Mst. Saeeda Bibi on the spot at 4-00 p.m. On the basis of which the F.I.R. Was actually registered at 5-00 p.m. On the same day.st
4. The accused-petitioners applied for their bail before the Illaqa Magistrate but without any success. Then they approached the learned Sessions Judge, Dera Ismail Khan, who too did not entertain their plea of bail. Hence this petition. .
5. Mr. Muhammad Karim Anjum Kasuria, the learned counsel for the petitioners, submitted that the version of the F.I.R. Is not only not in line with the ocular account of the occurrence furnished by Rehmatullah P.W. Who was present on the spot as the driver of the tractor and Haji Muhammad who was cleaner, but also the medical evidence does not support the same and there is clear inconsistency between the ocular evidence of the first informant, Mst. Saeeda Bibi, on the one hand and the medical evidence on the other. Learned counsel for the petitioners submitted that there was an unexplained delay of at least three hours, in lodging the report which casts serious doubt on the integrity of the prosecution case. The learned counsel therefore, urged that the petitioners arc entitled to bail. He relied on (1) Nazir v. State 1978 SCMR 285, (2) Basharat Hussain v. Ghulam Hussain 1978 SCMR ?58 and (3) Ghulam Rasool v. State 1986 P Cr. L J 120.
6. As against this, Qazi M. Anwar, the learned Advocate-General opposed the plea of bail raised on behalf of the petitioners on the ground that the police had recorded the statements of three eye- witnesses and they all have implicated the accused-petitioners. He also pointed out the marks of struggle in the field freshly ploughed at point No.1 in the site plan and the entry in the post-mortem report describing the deceased to be stout and healthy person of 55 years and thus urged that it could not be the job of one person as deposed to by Rehmatullah and Haji Muhammad P.Ws., respectively, the Tractor Driver and Cleaner. He also submitted that the first informant and her sister, being females, could not lodge the report in the police station and the S.H.O. On reaching the spot took down the statement of the first informant and registered the case.
7. The version of the F.I.R. Furnished by Mst. Saeeda Bibi and the statement of Mst. Mumtaz Bibi recorded under section 161, Cr.P.C. Are not, prima facie, in line with the statements of Rehmatullah and Haji Muhammad, respectively the Tractor Driver and Cleaner. The two statements of the last-- mentioned P.Ws. Would show that at about 1-00 p.m., Khuda Bakhsh petitioner appeared at the scene of occurrence while they were ploughing the field by means of the tractor and stopped the husbandry work. Upon this, hot words were exchanged between Khuda Bakhsh petitioner and Muhammad Ramzan, deceased, resulting in an altercation. Muhammad Ramzan slapped Khuda Bkhsha who in his turn caught hold of the deceased from his neck and started giving kicks to him.
Both Rehmatullah and Haji Muhammad then separated the deceased and Khuda Bakhsh petitioner. I have, however, decided to refrain from making any observation on the alleged contradiction between the medical evidence and the ocular account for fear of expression of opinion one way or the other. Suffice it say that the version of the F.I.R. And the statement of Mst.
Mumtaz Bibi recorded under section 161, Cr.P.C. Is not in accord with the statements of Rehmatullah and Hali Muhammad P.Ws. On the point of involvement of at least Rabnawaz and Shah Nawaz, petitioners herein. I am, therefore, of the opinion that there are, prima facie, no reasonable grounds for believing that the petitioners Rabnawaz and Shah Nawaz have committed a non-bailable offence and that there are sufficient grounds for further inquiry into their guilt.
8. Accordingly, I am of the view that a case for the grant of bail to the two petitioners has been made out and, as such, I admit both of them to bail subject to their furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Dera Ismail Khan.
9. In so far as Khuda Bakhsh petitioner is concerned, he has been involved in the statements of Rehmatullah and Haji Muhammad P.Ws. And, therefore, there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, and thus his case falls within the prohibitory clause of section 497(1); Cr.P.C. His plea for bail is, therefore, not entertained.