' The petitioners alongwith their co-accused had moved joint application for bail in the Court of the Sessions Judge, Bannu which was marked to the Additional: Sessions Judge, Bannu (Sahibzada Khurshid Ahmad for disposal.
2. The Additional: Sessions Judge was pleased to grant bail to accused Abdul .Ghaffar and accused Muhammad Subhan while he refused to release the petitioners on bail by his order, dated 16-7- 1998 recorded in B.A., No,275/4 of 1998 (Abdul Ghaffar and others v. The State). Hence this petition for bail.
3. Nawabzada Saleem Dil Khan, Advocate learned counsel for the petitioners and Kh. Azhar Rashid, learned Assistant Advocate-General for the State present and heard at length. Record of the case also perused carefully.
4. The learned counsel for the petitioners submitted, at the outset, that a perusal of the F.T.R. Would show that only Ishtiaq has been assigned the effective role because the complainant had categorically stated in the F.I.R. That Muhammad Asghar was fired upon by Ishtiaq accused with which he was hit, got injured, and removed to the house where he expired/died.
5. He further stated that as far as the other petitioner is concerned he has been assigned the role of taking out the pistol and trying to fire at the deceased but the pistol misfired. This action has been specifically mentioned by the complainant in the F.I.R. He, therefore, stated that he was entitled to be enlarged on bail not as a matter of grace but as a matter of right.
6. The next contention of the learned counsel for the petitioners is that the medico-legal report does not support the ocular testimony of the prosecution case. On the other hand, it totally negates the prosecution case thereby making the case of the petitioners as that of further inquiry.
According to the learned counsel for the petitioners the complainant has stated that the death of the deceased was caused because of fire-arm injury whereas the medico-legal report shows that the death was caused by sharp-edged weapon i,e,, the stab A wound.
7. For the sake of convenience the opinion of the Doctor is reproduced as under;-- ' "In my opinion the deceased died due to (F.A. Injury) stab wound (sharp weapon) causing injuries to the vital organs such as left lung and associated stood vessels leading to excessive bleeding, shock and death.
(Sd.)
DR. BASHIR HUSSAIN SHAH, Medical Officer."
8. In the circumstances, I am of the view that reasonable grounds do not exist for believing that the petitioners are connected with the commission of the offence with which they have been charged and that their case is that of further inquiry.
9. Their bail petition is accordingly accepted. They shall be released forthwith, if not required in any other case, provided they furnish bail bonds in the sum of Rs,100,000 (Rs, One lac) with two sureties, each in the like amount to the satisfaction of the Additional Registrar (Judicial) Peshawar High Court, Circuit Bench at D.I. Khan.
10. The Additional Registrar (Judicial) shall see that the sureties are respectable persons and hail from the settled area of District Bannu having sufficient property in their names. The property documents as well as the Identity Cards of the sureties shall be obtained by Additional Registrar (Judicial) for the record.
11. Before parting with the case, I would like to bring it on record that the report of the Doctor (Bashir Hussain Shah) seems to have been manipulated in that, in the first instance it was written/mentioned in the said report as under:-- ' "In my opinion the deceased died due to fire-arms injuries."
12. A copy, alongwith the relevant part of the medical report of the doctor, be sent to the Secretary to the Government of N.-W.F.P. Health Department, Peshawar with the direction to get the matter enquired into and submit the requisite report of this Court within a period of one month positively.