' This case is quite intriguing. In the first instance, complainant Qadam Khan, father of deceased Muhammad Khan, had reported to the police that his other son Muhammad Nisar was cleaning his pistol, on the day of occurrence (4-5-1994) when, in the meantime, it went off and hit the deceased. Resultantly Muhammad Khan died on the spot. According to the complainant, the whole episode was accidental and that the report was being lodged just for the information of the police.
2. An application was submitted to the Sub-Divisional Magistrate, Battagram for not getting the autopsy of the deceased done. The same was marked by the S.D.M. To the S.H.O. On 4-5-1994 with the following remarks:-- "S.H.O. Battagram ' Please report as to whether or not police suspect it murder or police has got any sort of objection in connection with the exemption."
3. The S.H.O. Reported as under:- {{URDU TEXT}}
4. Statements of P.W. Meh Taj widow of Muhammad Khan (deceased), P.W. Taj Bibi wife of accused Yousaf Khan and P.W. Mst. Khatoon wife of complainant and the mother of the deceased as well as accused were recorded under section 161, Cr.P.C. They too supported the version of the complainant that the death of the deceased, by the hands of Muhammad Nisar, was accidental.
5. However, when the post-mortem was conducted, it was found that the deceased had received two bullet injuries one near the left eye and the other in the chest near the left nipple. Beside this, he had also received injuries at his little finger.
6. In the meantime, Muhammad Nisar, the younger brother of the deceased appeared before S.D.M./M.I.C. Battagram on 1-6-1994 and got his statement recorded under section 164, Cr.P.C.
Wherein he stated that Mst. Bibi Mehr Taj wife of the deceased had developed illicit relations with his other brother-in-law, Yousaf, the real culprit and it was for this reason that he (Yousaf) had killed the deceased by firing two shots at him. He stated that he was innocent and falsely named in the F.I.R. Accordingly F.I.R. No,497, dated 4-5-1994 registered in Police Station Battagram was corrected and the petitioner was arrested.
7. The petitioners' bail applications were rejected by the Sub-Divisional Magistrate, Battagram on 3-10-1994 and the Sessions Judge, Battagram on 16-11-1994. Hence this petition for bail.
8. Qazi Shams-ud-Din, Advocate, learned counsel for the petitioners and Mr. Adam Khan Jadoon, Advocate for the State present and heard. Record of the case perused.
9. The learned counsel for the petitioner submitted at the Bar that the death was accidental and it was for this reason that petitioner No,1 was not charged, for killing his brother, by the complainant, the father of the accused/ deceased, Mst. Khatoon the mother of the accused/deceased and Mst.
Bibi Mehr Taj petitioner No,2 wife of the deceased. He further stated that the statement given by Muhammad Nisar before the S.D.M./Magistrate 1st Class was result of mala fide on the part of the prosecution because he was the stepbrother of petitioner No,1 as well as that of the deceased. He further stated that Muhammad Nisar was a minor boy of 12 years and had given the statement, recorded under section 164, Cr.P.C., under the influence of his brother-in-law, so as to get rid of petitioner No,1 and to grab the entire property of his father. To support this contention of the learned counsel for the ' petitioner, nothing is available on the record of the case.
10. On the other hand, the learned State counsel stated that the death of the deceased could be accidental only if he had received one bullet injury. He further stated that it does not stand to reason as to how two bullet .Injuries were received by the deceased on vital part of his body specially when he was lying absolutely naked in his bed room. He further contended that the petitioner's counsel has not been able to show as to how and why the deceased had received the third injury on his right little finger. According to him, the matter of the fact was that petitioner No,1 (brother of the deceased), in the absence of the deceased while he was away to Saudi Arabia, had developed illicit relations with petitioner No,2 (wife of the deceased) and on his return from Saudi Arabia, after a period of about five years, petitioner No,1, in collusion with petitioner No,2 managed to get rid of him by killing him. He stated that petitioner No,1 was not charged by the parents of the deceased because of risk to loose the second son also. It was for this reason that the murder of the deceased was given the complexion of accident.
11. Being confronted with the above situation, the learned counsel for the petitioner failed to furnish any plausible explanation as to how the deceased had received two bullet injuries resulting in his death besides the third injury on his hand. In the circumstances, reasonable grounds do exist for believing that petitioner No,1 is connected with the commission of the offence with which he had been charged. His case falls within the prohibitory clause of section 497, Cr.P.C. And accordingly he is not entitled to be released on bail. His prayer is, therefore, rejected.
12. The case of petitioner No,2 is on different footing. Sufficient evidence, for the time being, is not available on the file to show that petitioner No,2 either instigated or incited petitioner No,1 in killing the deceased. Beside this, petitioner No,2 is a lady and, therefore, her case falls under the first proviso of section 497, Cr.P.C. As such I am inclined to release her on bail.
13. Petitioner No,2 shall be released on bail, if not required in any other case, provided she furnishes bail bond in the sum of Rupees two lacs (Rs,2,00,000) with two sureties each in the like amount to the satisfaction of Sub-Divisional Magistrate, Battagram.
14. The Sub-Divisional Magistrate, Battagram shall see that the sureties are respectable persons, who belong to Battagram and are men of means having sufficient property in their names. The bail bonds shall be taken in duplicate and one of the same shall be sent to this Court alongwith the relevant documents of property, photostat copies of the identity cards etc. Etc. For record.
15. Notice of contempt of Court served on S.H.O. Police Station Battagram (Abdul Majeed) is hereby withdrawn as he has appeared in the Court today and explained as to why the notices issued in the name of respondent No,2 could not be returned in time.