2. The brief background is that Amir Khan complainant alongwith his brother Kamal Khan and Kaleemullah were present making ablution in the tubewell of village Ghandi Umar Chikar while their first cousin Abdul Hameed after having taken bath and putting on clothes was also present on the tubewell when Iqbal, Tabassum and Bin Yamin duly armed with Kalashnikovs appeared on the scene. Accused Iqbal held everybody still at gun-point while the remaining two opened fire at Abdul Hameed with which he got hit, fell down and died on the spot. Bin Yamin is an absconder uptill now while the two respondents have succeeded in obtaining bail from the lower forums.
3. The material facts on record are that the direct and distinct allegations of the complainant are supported by two other eye-witnesses namely Kamal Khan and Kaleemullah. The fact that the occurrence could be the doing of more than one person is apparently supported by the recoveries from the spot and the number of injuries sustained by the victim. The motive is also satisfactorily attributed to the absconder whose visible companions, as per evidence, the respondents were. The Courts below were taken by the idea that there was a delay of two hours in lodging the F.I.R. And that the two accused-respondents had taken a plea of alibi which is duly supported by the witnesses. It is probably the same evidence which led the Investigating Officer to also conclude similarly and to place the two accused in column No.2 of the challan.
4. So far as the factum of delay is concerned, the time of two hours was never material in view of the distance involved. This per se is also not fatal unless it is proved at trial that consultations and deliberations had in fact taken place. A close perusal of record would suggest that the plea of having gone out for hunting to Zhob is not an absolute plea of alibi when such cranes are abundantly available also iii the areas of D.I. Khan, Bannu and Lakki. The learned counsel for the respondents have pleaded, in addition to the factum of alibi, that the police have examined one Humayun and another Rashid, two disinterested witnesses of another village as eye witnesses, who both have no doubt named Bin Yamin in the commission of offence but not the two respondents.
Had it been a true phenomenon and had the Investigating Officer been influenced of it he would certainly have mentioned Humayun and Rashid and for that matter the remaining witnesses of hunting also in the column of witnesses of his report under section 173, Cr.P.C. It is on the basis of this evidence that the Investigating Officer exonerates the respondents and at the same time involves the absconder but practically fails to or avoids to bank on such witnesses at the trial. This vascillating attitude of the Investigating Officer is not consistent because apparently he is relying upon the same witnesses who were toeing the prosecution story.
5. It is also a matter of serious thought that the respondents are grown up people but application on their behalf is given by their uncle who happens to be a retired police officer. The FIR was lodged on 23-10-1992 while the respondents are allegedly brought by Turkistan, the uncle ASI of the respondents from Zhob but in spite of an honest belief of a valid alibi, they were not produced in Court for pre-arrest bail but rather arrested on 6-11-1992. The above circumstances have not resulted in mitigating the effect of initially existing prima facie case particularly against accused Tabassum who is charged with an effective role. So far as lqbal accused is concerned, no effective role is attributed to him and hence his liberty should not be interfered with while there seem to be no reasonable grounds for the release on bail of Tabassum. His release was unjustified and thus it is immaterial whether he has misused the liberty or not.
6. The application qua lqbal accused is rejected while against Tabassum accused it is accepted.
The bail of the latter is cancelled and he is taken into custody and sent to jail as an under trial prisoner.