The instant order in Criminal Miscellaneous No. 129 of 1995 shall also dispose of the connected Petition No. 130 of 1995, both for the cancellation of bail of respondents arising out of same F. I. R. No. 199, dated 2-5-1995 of Police Station Lakki.
2. Faizullah complainant has narrated the occurrence in the F.I.R. To the effect that his son Humayoon Khan and another Asmatullah Khan, a son of his collateral were friends inter se. That on the date preceding the date of report they both, as usual, left the house at evening time for fun.
That after sometime Faizullah complainant and his brother Adam Khan also came out of the house and went to the ' Kotha' of Meena Khan situated in Langar Khel Hathi Khan on road side. It was '
Khuftan' time when they saw Samandar Khan, Noor Aslam Khan, Wakeel Khan and Ahmed Khan armed with ' Kalashnikovs' and passing by that road. After a considerable time they heard the report of fire-shots and returned home after a chat. Hamayoon Khan had not then returned home and it was found the next day and informed by Awal Khan that his son Hamayoon Khan and Asmatullah Khan were found dead in the fields.
3. Suffice it to say at this stage that it is a night occurrence and the F.I.R. Discloses only circumstantial evidence against the accused. There is a' considerable delay in the F.I.R. Which was lodged the next day at 12-30 p.m. It A requires a lot of reason and logic to believe that the eye- witnesses named Masood Khan and Habib Khan examined 15 days after the occurrence would be present on the spot and would leave for Punjab despite the death of one of their cousin.
4. No doubt the factum of further enquiry is not a part of section 5-A(8) of the Suppression of Terrorist Activities Act still the reasonableness or otherwise of involvement could have been gone into at bail stage. No doubt, further, that the Magistrate could not entertain the bail of those being involved in the commission of scheduled offence yet the matter had even come before the learned Special Judge who refused cancellation and thus in a way granted the bail.
5. Noor Aslam also is granted bail against whom cancellation was moved as well but the same was withdrawn on 11-7-1995. His case is not different from E all the remaining accused and thus the principle of consistency also demands equal treatment.
6. It is a case where the bail of the respondents does not require to be disturbed. Both the petitions are hereby dismissed.