According to the first information report, Azizur Rehman son of Sagheer, resident of Boonardas went to the Police Station Gunnar Farm on 19-3-1995 and made a report the same day at 5-30 p.m.
Before Mahzoob Khan, S.H.O. That on the fateful day, he was present in his house at 12 noon, when Abdur Rauf son of Keriya resident of Boonardas, who had taken his herd of goats and sheep to the pasture, situated at Holtash Bala, informed him that at about 9-30 a.m. On the same day Chalo Khan son of Quwat Khan, resident of Boonardas had also taken his goats and sheep to the pasture at Holtash for grazing; that Abdur Rauf mentioned above, who was in the vicinity of the scene of occurrence, heard report of fire shots. In order to know the cause of fire shots, he proceeded in that direction; that when Abdur Rauf reached near Chalo Khan, he found him lying dead under a tree and was having fire-arm injuries on his person; that said Abdur Rauf leaving unattended the dead body at the spot left for the village Boonardas to inform the relatives of the deceased and on his arrival in the village, he apprised Azizur Rehman, maker of the F.I.R. About the incident, who is distantly related to the deceased; that the informant inquired from Abdur Rauf about the assailant/assailants, who had allegedly done to death Chalo Khan, but Abdur Rauf refused to disclose the names of the assailants; that Azizur Rehman lodger of the F.I.R. Alongwith his other relatives as well as Abdur Rauf went to the said pasture Holtash Bala and brought the dead body to the village Boonardas and reported the matter about the murder of Chalo Khan at Police Station Gunnar Farm.
2. On 20-3-1995, the local police examined Abdur Rauf son of Keriya, case Gujar, aged 25 years under section 161, Cr.P.C. Wherein he has posed himself to be an eye-witness to the occurrence.
According to his statement before the Police, on the eventful day, Chalo Khan after separating his goats and sheep from the 'herd of Abdur Rauf, drew the same towards the pasture and informed Abdur Rauf that he had cut Bani tree in the jungle a day prior to the occurrence. Some time after the departure of Chalo Khan, Abdur Rauf also took out his sheep from the cattleshed and followed Chalo Khan; that when he reached near the deceased, he saw Chalo Khan on the Bani tree and was busy in throwing the branches of the Bani tree; in the meantime two shots were fired from a depression near a mound, as a result of which Chalo Khan was hit and dropped to the ground from the tree in question. As per statement of Abdur Rauf before the Police, he and the deceased were empty-handed; that from the depression, the accused person emerged and went towards the deceased. The witness recognized ' Hadan' and ' Khazan' sons of Shaban case Sheen, residents of Boonardas. Hadan was armed with .303 bore rifle, while Khazan was carrying five shot rifle. On reaching near the deceased, both the accused stated above were attacked by the dog of deceased. Khazan accused fired a shot at the dog, it missed the dog and instead a goat was hit with the said shot. Thereafter the two accused went close to the deceased and fired more shots at him and after having done to death Chalo Khan, the two accused left for Boonar and threatened the deponent namely Abdur Rauf that if he disclosed their names to any body, he will not be spared; that after decamping of the accused, the witness came to Boonardas and informed the relatives of the deceased regarding the present tragedy.
3. So for the first information report is concerned, the lodger of the report is not an eye-witness. His source is that of a derivative nature which he got from Abdur Rauf. No one is mentioned in the F.I.R.
As an eye-witness to the present occurrence. Abdur Rauf though accompanied the dead body to the village, was not examined under section 161, Cr.P.C. On the same day, but on the other hand, he was examined on the following day.
4. In the first information report, at the time of making the report, the empty shells 6 in number do not find any mention which were allegedly produced by Abdur Rauf. On the other hand, the recovery Memo. At page 7 of the judicial file indicates that 3 empties of .303 bore rifle and the remaining 3 were of G-3 bore rifle, which were taken into possession vide Recovery Memos.
Produced by Abdur Rauf in the presence of Walayat Noor and Azizul Haq, marginal witnesses, while in the site plan at page 3 of the file, the Investigating Officer has shown that 4 empties of .303 bore and G-3 bore were collected by Abdur Rauf from point No. l
5. In the light of the aforesaid discussion, the non-mention of the eye--witness in the F.I.R., contradictory statement of the sole witness Abdur Rauf before Azizur Rehman, maker of report and his deposition before the Police under section 161, Cr.P.C. Coupled with the recovery of alleged weapons of offence as well as the six empties per prosecution version, not having been sent uptill now to the Arm Expert for examination and report, as to whether the said empties were fired from the said rifles taken into possession by the police or were fired from different weapons. All these points taken into consideration, I deem it fit and proper in the interest of justice, that the Court below has rightly exercised its discretion by enlarging the accused/respondents on bail. The result is that the application for cancellation of bail fails and stands rejected.