' The facts of the case narrated in F.I.R. No,84, dated 12-7-1994 registered under section 302/324/34, P.P.C. At Police Station PhuIra are as under:--
(i) That complainant Muhammad Shafique son of Samundar had gone to the forest known as "" for cutting/fetching wood, alongwith his brother (Muhammad Rafique), AlaTarrim Zeb son of Ghulam Haider and Rafaqat son of Muhammad Ishaque, that when they reached the forest they saw Taus and Issa Khan (respondent/accused) cutting the timber, that Muhammad Rafique told them that since the timber belonged to them therefore, they should refrain from -cutting the same. This resulted in an altercation which took place between Taus and Issa Khan on the one hand and Muhammad Rafique on the other, that, however, Alam Zeb separated them.
(ii) That thereafter, as it appears from the record, Taus and Issa Khan (respondent No,2) left the place. That it was at `Degarwela' that both of them came back, alongwith their father Said Rehman (respondent No,1). At that time Taus was duly armed with a shot gun whereas Issa Khan (respondent No,2) was duly armed with a rifle and Said Rehman (respondent No,1) was armed with an axe. On reaching the spot Said Rehman (respondent No,1) directed his sons Taus and Issa Khan (respondent No,2) to kill Rafique. On the directions of Said Rehman (respondent No,1) Taus fired at Muhammad Rafique with his shot gun and killed him on the spot. It has been further alleged that the father and both the sons also fired upon Muhammad Shafique petitioner but he escaped unhurt. The occurrence was stated to have been witnessed by P.Ws. Alam Zeb and Rafaqat.
2. Said Rehman (respondent No,1) and Taus submitted an application for their release on bail before Magistrate 1st Class (Qazi Ghulam Mohayy-udDin) Mansehra who by his order, dated 24-8- 1993 rejected the same.
3. Not contented with the said order Said Rehman (respondent No,1) and Taus moved an application for bail in the Court of the Additional Sessions Judge, Mansehra, who vide his order, dated 1-2-1993 granted bail to Said Rehman (respondent No,1) whereas rejected the prayer of accused Taus for bail. The pre-arrest bail application of accused Issa Khan (respondent No,2) was also rejected by the learned Additional Sessions Judge, Mansehra.
4. Issa Khan (respondent No,2) then applied for his bail, after arrest, to the EA.C.(III)/M.I.C., Mansehra who by his order, dated 13-12-1993 rejected the same.
5. Issa Khan (respondent No,2) thereafter filed an application for bail in the Court of learned Additional Sessions Judge, Mansehra who vide his order, dated 2-2-1994 granted bail to Issa Khan (respondent No,2).
6. Muhammad Shafique petitioner (complainant) has taken exception to the grant of bail to respondents Nos.1 and 2 and has, therefore, knocked at the door of this Court for the redress of his grievance and has prayed that the bail granted to respondents Nos.1 and 2 may be cancelled.
7. Mr. Muhammad Akbar Khan Swati, Advocate learned counsel for the petitioner (complainant) assisted by Mr. Muhammad Tariq Khan, Advocate for the State and Mr. Muhammad Hanif Khan, Advocate learned counsel for the respondents-accused present and heard. Record of the case perused.
8. The learned counsel for the petitioner submitted that respondents Nos.1 and 2 could not be granted bail because they were directly charged, alongwith their co-accused, namely, Taus, in the F.I.R. That an altercation had taken place between the deceased and respondent No,2 before the occurrence and thereafter respondent No,2, alongwith his co-accused Taus (who has not been granted bail), went away to their house and thereafter duly arming themselves came back to the scene of occurrence, alongwith their father (respondent No,1), that it was respondent No,1 who had directed his sons to kill the deceased, that on the directions of respondent No,1, one of his sons, accused Taus, fired at Muhammad Rafique and killed him then and there, whereas respondent No,2 also opened fire at the complainant party with the intention to kill them but luckily they escaped unhurt. He stated that since both the respondents have taken active part in murdering/killing Muhammad Rafique and had shared common intention, with Taus accused (not released on bail) to kill the deceased, therefore, at present, they were not entitled to get bail because reasonable grounds do exist for believing that they are connected with the commission of the offence with which they have been charged and the question as to who had actually murdered the deceased would be of no consequence. He prayed that bail granted to them should be cancelled. He also stated that the occurrence had taken place in broad daylight, therefore, the question of misidentification of both the respondents did not arise, especially when both of them were known to the witnesses and the petitioner, being the residents of the nearby village.
9. Learned counsel for the petitioner also drew my attention to the fact that the trial of the case has already commenced in January, 1994 provision of section 265(c), Cr.P.C. Were complied with on 26-1-1994, and the case was adjourned for recording the prosecution evidence when, in the meantime, the learned Additional Sessions Judge granted bail to respondent No, 2 on 2-2-1994, holding that the case of respondent No,2 was that of further enquiry. He stated that the learned lower Court has committed grave irregularity, if not illegality, in releasing respondent No,2 on bail in the circumstances. In support of his argument the learned counsel for the petitioner placed reliance on the following cases:--
(1) State through Liaqat Ali and another v. Amanullah and 2 others reported in 1984 P Cr. L J 593,
(2) Munawar v. The State reported in 1981 SCMR 1092,
(3) Rashid Khan and another v. The State and others reported in 1986 SCM R 933.
10. On the other hand, the learned counsel for the respondents submitted that Taus who has been alleged to have killed the deceased has not been enlarged on bail by the learned lower Courts and that he is behind the bars. He further stated that as far as respondents Nos.1 and 2 are concerned their case is on different footing inasmuch as respondent No,1 has been alleged to have raised "Lalkara" whereas respondent No,2 is alleged to have fired ineffectively at the petitioner/complainant. In the circumstances, he stated, both of them had been rightly released on bail by the learned lower Court. In support of his contention he placed reliance on case Muhammad Haroon and another v. The State reported in 1994 SCMR 2161, wherein their Lordships of the Supreme Court of Pakistan had held as under:-- "We have heard the learned counsel for the parties at length.
' Muhammad Haroon petitioner is alleged to have caused a fire-arm injury to Muhammad Aslam deceased, therefore, we are not inclined to interfere with the order of the learned Single Judge refusing bail to him. The only allegation against Usman petitioner is that he raised Lalkaras alongwith co-accused Luqman and Muhammad Yaqoob while Abdul Rehman petitioner is alleged to have held Mst. Razia Bibi alongwith co-accused Muhammad Yaqoob. They are not alleged to have caused any injury to any of the deceased persons. We, therefore, convert their petitions into appeals and allowing the same direct that they shall be released on bail subject to their furnishing security in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Chiniot."
11. After going through the record of the case carefully, hearing the arguments of the learned counsel for the parties and the case-law cited at the Bar, I am of the considered view that since respondents are not alleged to have caused any injury to the deceased person, therefore, they were rightly released on bail by the learned Additional Sessions Judge. Finding no merit in this petition I dismiss the same. The learned trial Court is, however, directed to see that the trial in this case is concluded within a period of three months.