' The two petitioners, namely, Maider Shah and Ghulam Habib, have preferred this bail petition in case F.I.R. No,300, dated 29-10-1998 of Police Station Tajori, District Lakki Marwat, under section 381- A/342, P.P.C., after having been dissatisfied with the orders of the two Courts below, dated 16-1-1999 and 27-1-1999 respectively.
2. Facts of the prosecution case in brief are that on 28-10-1998 at 8-00 a.m. Imtiaz Khan complainant made a report in aforesaid police station to the effect that on the eventful day and time he was present in the Datsun Adda, Naurang along with his datsun Pick-UP No,2711-BUC, Model 1997 when meanwhile Salim Khan Bittani approached him and hired his said vehicle for a sum of Rs,560 for taking his women-folk and others to a Ziarat. He along with his cleaner, namely, Naseebullah, accompanied aforesaid Salim Khan to his residence where they were asked to wait in his Baithock. After a little while, the said Salim accompanied by Noor Ali Khan, brother, Zaman Khan, father and Baidulla Jan, relative together with two unknown persons came in the Baithak, whose descriptions he gave in the report and were duly armed with kalashnikovs. Noor. Ali forcibly took away key of the datsun and went out of the Baithock along with- the others and closed the door from behind. Salim after leaving the Baithock had threatened him not to raise any alarm, where after they went in the said datsun. At about 6-00 p.m. The, said Salim again appeared and opened door of the baithock and after a threat released him. Thereafter, the complainant went to the Bus Adda Gambeela and informed his relatives. On account of, late-hours of the night, he could not make the report well in time. He, therefore, charged the aforementioned persons before the S.H.O.
Of Police Station Tajori, who had met him at Adda Gambeela while on petrol duty.
3. Perusal of the record suggests that the petitioners had come to inquire about the well-being of the two co-accused namely, Noor Ali and Baidullah, in the Civil Hospital, Lakki Marwat, who had sustained some injuries in a transaction. The S.H.O., of Police Station Tajori having received information about the presence of the two petitioners had proceeded towards the said hospital in the company of Imtiaz complainant, where Haider Shah and Ghulam Habib were present and on pointation of the complainant, they were arrested in the present case. The petitioners were, however, not identified during investigation either by the complainant Imtiaz, or by Naseebullah cleaner. These two persons have charged the two petitioners only before the Investigating Officer in violation of law, as it was incumbent upon the Investigation Officer to have got the petitioners identified by the witnesses in a regular identification parade. Besides, the role attributed Ito the petitioners, is only to the extent that they had appeared on' the eventful evening along with other co-accused in the Baithock of Salim Khan. No positive role, therefore, had been attributed to them.
They have also been placed in column. No,2 of the challan after a proper inquiry about their innocence conducted by the local police and the A.P.A. Of Frontier Region, Lakki Marwat. The case property, i,e, the datsun in question, was recovered on 23-12-1998 by the D.C. Lakki Marwat and was handed over to the Investigating Officer. Since no positive evidence is forthcoming on the file to connect the petitioners with the offence and they have been placed in column No, 2 of the challan, therefore, their case becomes arguable for, the purposes of bail. Above all, the offence in hand does not entail punishment for more than ten years and, therefore, does not come within the prohibitory clause of section 497, Cr.P.C.
4. As a result, I accept this application and admit the petitioners to bail in the sum of Rs, two lacs with two sureties each in the like amount to the satisfaction of the 111aqa/Duty Magistrate.