1. ' SAEEDUZZAMAN SIDDIQU?, J.--The petitioner has sought leave to appeal against the judgment of Peshawar High Court dated 23-8-1994 whereby the learned Acting Chief Justice admitted respondents 1 to 6 to bail in a case registered against them under sections 302/109/148 and 149, P.P.C. (F.I.R. No, 17 dated 24-9-1993) at Police Station Qalangi. Malakand Agency, After hearing the learned counsel for the complainant and the State after notice in the case, we have converted this petition into appeal and it is disposed of as follows.
2. ' According to F.I.R. Lodged by Farid Ullah, complainant, on 24-9-1993 there was a public meeting of Pakistan People's Party (P.P.P.) in village Totakan, Malakand Agency, which was to be addressed by some members of the National Assembly belonging to P.P.P. According to Farid Ullah, he had gone to witness the said meeting alongwith deceased Rafiq Ahmed and Rashid Ullah and while they were standing on the road near the site of the public meeting, the deceased Farid Ullah and Rafiq Ahmed had altercation with the accused Amir Jehan. As a result of this altercation between Amir Jehan and Rafiq Ahmed, accused Rab Nawaz and Ayub exhorted accused Amir Jehan, Hassan Khan, Subhan Mahmood, Ishtiaq and Muhammad Niaz who were armed with deadly weapons, to fire at Rashid Ullah and Rafiq Ahmed. It was further alleged that as a result of instigation of Rab Nawaz and Ayub accused Amir Jehan, Hassan Khan, Subhan Mahmood, Ishtiaq and Niaz opened fire at Rashid Ullah and Rafiq Ahmed with their respective weapons causing instant death of Rashid Ullah and Rafiq Ahmed. As a result of this firing N/Sub.
3. ' Anzar Gul, P.C. Qalangi who was present to look after arrangements of the public meeting alongwith 15 other P.Cs. Came rushing to the spot and having found that Rashid Ullah and Rafiq Ahmed died as a result of the firing by the accused persons, started chasing accused persons who had fled from the scene after committing murder of Rashid Ullah and Rafiq Ahmed. There was exchange of firing between the chasing police party and the fleeing accused persons but the police party ultimately succeeded in apprehending Amir Jehan, Hassan Khan, Subhan Mahmood and Ishtiaq. The police also recovered one Klashnikov Russian made, alongwith 27 magazines from the possession of accused Amir Jehan and one pistol .30 bore, local made, with 7 cartridges from accused Ishtiaq. The recoveries were said to have been witnessed besides the complainant Farid Ullah by Shahi Mulk, Akbar, Farman and Khursheed. The police recorded statement of eye- witnesses Akbar, Shahi Mulk, Haji Khalid Khan Farmanullah and Khursheed under section 161, Cr.P.C.
4. And all of them supported the allegations made in the F.I.R. All the accused persons approached the PATA Courts for grant of bail in the case but only Rab Nawaz was allowed bail by the Additional Secretary Home, on 14-12-1993 while other accused persons in the case were declined bail. As the PATA Regulations were declared unconstitutional by the Supreme Court in a case, respondents Amir Jehan, Hasan Khan, Ishtiaq, Muhammad Niaz and Ayub again applied for bail to EA.C./MIC Malakand who allowed the bail to Ayub and Muhammad Niaz but refused bail to the remaining accused persons. The bail cancellation application was, therefore, moved before Sessions Judge at Batkhela for cancellation of the bail granted to Ayub and Muhammad Niaz. At the same time accused Subhan Muhammad, Ishtiaq, Amir Jehan and Hasan Khan also approached the Sessions Judge by two separate bail applications for grant of bail in the case. The learned Sessions Judge after hearing the counsel of accused persons and the State allowed bail cancellation application of the State and cancelled the bail granted to Niaz and Ayub and at the same time rejected the bail application of Subhan Mahmood, Ishtiaq, Amir Jehan and Hassan Khan. Against the order of learned Sessions Judge all the 6 respondents moved for bail before the Peshawar High Court which was disposed by the learned Acting Chief Justice through the impugned order. All the accused persons have been admitted to bail on furnishing bail bonds in the sum of Rs,one lac with two sureties in the satisfaction of Illaqa/Duty Magistrate. The complainant has now sought leave to appeal against the order of learned Acting Chief Justice granting bail to the respondents.
5. ' We have heard the learned counsel for the complainant, the accused and the State. The learned Acting Chief Justice while admitting respondents to bail observed as follows:-- "7. After hearing the arguments of the learned counsel for the parties and after tentative assessm ent of the evidence available on record I am of the view that it is a case of further enquiry.
6. The occurrence took place in a meeting where two parties clashed as a result of which two persons were hit and killed in the firing. In such like circumstances it is difficult to pinpoint the real person who has fired effective shots and who has shouted Talkara' where thousands of people were participating in a meeting. The eye-witnesses have given contradictory statements. Some of the accused are being charged for ordering the co-accused to kill and some of them are charged for having opened fire. However, the real position will be ascertained by the trial Court after recording some evidence. In the circumstances of the case and without going deep into the merits of the case these two bail applications are accepted and all the six accused-petitioners are admitted to bail, provided each one of them furnishes bail bonds in the sum of Rs,1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of the IllaqailDuty Magistrate as ordered vide my earlier short order and these are the full reasons for the said short order."
7. ' We are unable to subscribe to the view taken by the learned Acting Chief Justice that in the occurrence where both the parties clashed, it was difficult to pinpoint the real person who had fired effective shot and who raised Talkara' as there were thousands of people participating the meeting. These observations of the learned Acting Chief Justice are not at all supported by any material so far collected by the prosecution in the case. To say the least, the F.I.R. Was lodged within 10 minutes of the incident while another F.I.R. Of the incident was also lodged made by the police officer who was present there and who apprehended the accused persons after hot chase and exchange of fires, within half an hour of the said incident. In the abovesaid two F.I.Rs, lodged in the case respondent No,6 was attributed instigation while respondents Nos.1 to 5 were specifically charged with the act of firing from their respective firearms. There was recovery of empties from the scene of offence and two weapons, namely, one Klashnikov and .30 bore pistol, were also recovered from respondents Nos.3 and 4 respectively, who were apprehended at some distance from the scene of offence immediately after the incident alongwith two others. The police also recorded the statement of three eye-witnesses under section 161, Cr.P.C. Which fully supported the version in the F.I.R. In these circumstances, it was difficult to understand how the learned Acting Chief Justice reached the conclusion that it was a case of further enquiry and that it was not possible to fix the liability on any one of the accused persons in the circumstances of the case. The version in the F.I.R. Lodged by the complainant Farid Ullah was clear and explicit and respondents Nos. 1 to 5 have been attributed specific role of firing on the deceased persons which hit the deceased persons causing their instant death at the spot. The statements of three eye-witnesses recorded by the police under section 161, Cr.P.C., the recovery of two weapons from two of the respondents who were apprehended at some distance from the scene of offence alongwith two others after a hot chase and exchange of firing between police party and the accused persons, and recovery of empties from the spot do show that the investigation so far conducted in the case by the police prima facie connect respondents Nos. 1 to 5, named in the F.I.R. With murder of two deceased persons, and therefore, we are unable to subscribe the view taken by the learned Acting Chief Justice while enlarging them on bail. However, with regard to respondent No,6 we may observe that he was not attributed any firing from his firearm on the deceased persons, and therefore, to the extent of his case we are not inclined to interfere with the discretion exercised by the learned Acting Chief Justice admitting him to bail.
8. ' Accordingly, this appeal is accepted. The bail granted to respondents Nos. 1 to 5 is cancelled and they are directed to be taken into custody by the police. Bail of respondent No,6, Ayub Khan son of Sherin who is admitted to bail through the impugned judgment, is however, maintained. The appeal stands disposed of accordingly.