1. Criminal Miscellaneous Bail Petition No.216 of 1997 and Criminal Miscellaneous Bail Cancellation Petition No.243 of 1997 arising from the same order are disposed of by this single order.
2. 2.The accused/petitioners in Criminal Miscellaneous No.216 and accused/respondent in Ciminal Miscellaneous No.243 of 1997 alongwith Sher Muhammad (an absconding accused) were charged for the double murders of Fazal Rahim and Shah Nawaz, vide F .I.R . No.119, dated 18-5-1996 at P.S. Tajori. On their arrest they applied for bail to the Special Judge under the Suppression of Terrorist Activities Act, 1975. The bail was refused to the petitioners in Ciminal Miscellaneous No.216 of 1997.
3. However, the accused/respondent in Ciminal Miscellaneous No.243 of 1997 wa allowed bail. The accused/petitioners have come to this Court for the said relief. While the complainant ha moved this Court for cancellation of bail granted to the accused/repondent Amin Khan.
4. 3.Abdul Haleem complainant disclosed in his report that he alongwith Fazal Rahim deceased, his cousin, were present at Malang Adda while Shah Nawaz deceased and his brother Muhammad Zaman were also waiting nearby for the arrival of vehicle. At about 07-30 hours the accused/petitioner Sher Baz armed with a pistol and Amin Khan accused/respondent as empty- handed attracted towards them from Gambeela Bridge side while the accused/petitioner Hakim Khan and absconding accused Sher Muhammad armed with double-barrel shot guns reached near Shah Nawaz deceased from the other side. Amin Khan accused/respondent commanded his co-accused "to kill". Sher Baz accused/petitioner allegedly fired at Fazal Rahim deceased with a pistol on his back side which hit the deceased and fell down on the ground. The complainant rushed to catch hold of the said accused but failed. In the meanwhile the accused/petitioner Hakim Khan fired at deceased Shah Nawaz on his front while Sher Muhammad absconding accused fired at him from the back side with their respective weapons of double-barrel shot guns which hit the deceased and he fell down. The accused decamped from the spot. Fazal Rahim deceased then injured was rushed to the Naurang Hospital who subsequently died in the hospital while Shah Nawaz deceased expired on the spot. The motive behind the occurrence is a dispute over the auction of Adda Commission between the accused party and Shah Nawaz deceased.
5. Accused have got no against Fazal Rahim deceased.
6. 4.The learned counsel for the accused/petitioners contended that the complainant Abdul Haleem has filed an affidavit stating therein that on the day of occurrence on hearing the fire shot he was attracted to the spot and found his relative Fazal Rahim lying injured while Shah Nawaz was shot dead. He enquired from the general people who were running from the spot and at their (general people) instance he charged all the four accused. Further stated that he has satisfied himself that only Sher Muhammad the absconding accused alongwith an unknown culprit has committed the offence and the accused Hakim Khan, Sher Baz and Amin Khan are innocent. They being innocent as per his satisfaction, he has no objection if they are released on bail. Further contended that the distance between Sher Baz accused and deceased Fazal Rahim has been shown one pace and there was no charring marks found on the person of Fazal Rahim deceased. Further submitted that the report was lodged on the spot after preliminary investigation. It is recorded in the F.I.R. that the occurrence was reported by the officials of F.R. Picket Gambila and on their information the police attracted to the spot where the report of the complainant was reduced into writing. Also contended that the occurrence has allegedly taken place in the broad daylight and in a place of public gathering but except the real brother of deceased Shah Nawaz, no disinterested person, i,e, shopkeepers in vicinity, have deposed against the accused, rather they have shown ignorance about the culprits. All these facts suggest that either the occurrence is an unseen one or the real culprits have been substituted with the accused charged in the F.I.R. Further contended that the alleged motive was between Shah Nawaz deceased and the accused party and the accused/petitioners are not related inter se. The learned counsel for the accused/petitioners has also placed on record copies of F.I.Rs, registered at Police Station Tajori bearing No.103, dated 27-7- 1989, No.9 dated 16-2-1992 and No.252 dated 27-12-1991, wherein deceased Shah Nawaz has been cited as accused in the aforesaid three different murder cases. The Investigating Officer was produced a D.B. shotgun and a .30 bore pistol belonging to Shah Nawaz deceased by Nasibullah, an owner of the hotel in the vicinity and argued that the deceased Shah Nawaz a desperate person and a proclaimed offender and he might have been done to death by those with whom he had blood feud enmity.
5. The learned counsel for the heirs of deceased Shah Nawaz submitted that both the accused/petitioners are charged in a promptly lodged F.I.R. for the effective firing at the deceased.
7. The occurrence has taken place in a broad day-light and the ocular version of the eye-witnesses have got support from the medical report. The accused/petitioners remained absconders for sufficient long time and they are not entitled to the concession of bail. As against Amin Khan accused/respondent, it is contended that although he was empty-handed at the time of occurrence but he has participated in the commission of offence by raising Lalkara and prima facie he is involved in the commission of the offence. He prayed for dismissal of Criminal Miscellaneous Bail Petition No.216 of 1997 and acceptance of Criminal Miscellaneous Bail Cancellation Petition No.243 of 1997.
8. 6.The learned State Counsel supported the order of Special Judge, Lakki Marwat. In his opinion the accused/petitioners have rightly been refused bail as prima facie case exists against both the accused. However, he did not support the Criminal Miscellaneous Bail Cancellation Petition No.243 of 1997.
9. 7.I have heard the learned counsel at the Bar and gone through the record of the case.
10. 8.Without going into deep merits of the case, from the perusal of the F.I.R. it transpires that the occurrence has taken place without premeditation as all the four accused nominated in the F.I.R. did not attract to the spot jointly. Two of the accused, namely, Muhammad Amin and Sher Baz had arrived at the scene of occurrence from Gambeela Bridge side while the accused/petitioner Hakim Khan and absconding accused Sher Muhammad arrived there from the opposite side.
11. Complainant and Fazal Rahim had arrived the place of occurrence independently, while deceased Shah Nawaz and his brother Muhammad Zaman happened to be there waiting transport. The previous conduct of deceased Shah Nawaz also seems to be of desperate and dangerous person who had been involved in blood feud enmity with number of persons. During the course of arguments, learned counsel for State though affirmed that the deceased Shah Nawaz was involved in a number of murder cases, but his conduct as such does not provide permission to the accused to commit his murder.
12. 9.The complainant Abdul Haleem present in Court was asked about the contents of affidavit submitted by him in the Court of Special Judge. In the presence of the counsel at the Bar he affirmed the contents of the said affidavit statement. In these circumstances the only ocular evidence left with the prosecution is the statement of Muhammad Zaman, the brother of deceaed Shah Nawaz. The benefit arising from the controversial stand of the complainant in his F.I.R. and his affidavit statement leads to material doubt which benefit has to go to the accused. Being a premeditative occurrence, each accuesd is to be dealt with for his individual role in the commission of offence. The accused/respondent Amin Khan in Criminal Micellaneous No.243 of 1997 has been allowed bail keeping in view the empty-handed role assigned to him in the F.I.R. which is not questionable. The accused/petitioner Sher Baz is charged for the sole effective fire at the deceased Fazal Rahim. The complainant who is cousin of the deceased has diverted from his first information report and has exonerated the accused from the commission of offence. No legal heir of deceased Fazal Rahim has come forward in support of the prosecution case.
13. 10.The dimension of solitary injury on the person of deceased Fazle Rahim commensurate with the injuries on the person of deceased Shah Nawaz, who was fired at through D.B. shotgun. Keeping in view the injuries on the persons of deceased possibly that both the deceased sustained injuries of weapon of the same calibre cannot be concluded. Absence of charring marks around the injury on the person of deceased Fazal Rahim further confirm that he was not fired at from a distance of one pace, but from some distance. Accused/petitioner Sher Baz who has been hown at a distance of one pace only cannot cause an injury to deceased Fazal Rahim, without causing charring marks.
14. The complainant has also affirmed that accused/petitioner Sher Baz Khan has satisfied him and his other legal heirs that he has not committed the murder of deceased Fazal Rahim.
15. 11.In these circumstances, the case against accused Sher Baz Khan is distinguishable. It is yet to be established that accused Sher Baz Khan had shared his common intention with his co-accused Hakim Khan.
16. 12.So far as the case of accused Hakim Khan is concerned, he alongwith the absconding accused Sher Muhammad is charged for effective firing at the deceased Shah Nawaz and a prima facie case exists against him.
17. 13.For the reasons stated in the preceding paragraphs, I reject the bail petition of Hakeem Khan.
18. However, the accused/petitioner Sher Baz Khan is allowed bail provided he furnishes bail bond in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the trial Court. Nonetheless, the Bail Cancellation Petition No.243 of 1997 against Amin Khan accused/respondent is dismissed. This order is baesd on tentative assessment of material available on record and has no bearing on trial of accused.