' ABDUR RAUF KHAN LUGHMANI. J.---Petitioners Mianwar Khan and Akbar Nawaz Khan, who, along with others are involved in case F.I.R. No,19 under section 302/324/347/148/149, P.P.C. Were refused bail by the learned Judge Special Court, Bannu, vide order, dated 26-6-1998, and now they have approached this Court for their release on bail.
2. Abdur Rashid, on 29-5-1998. At about 12-10 hours brought the dead bodies of his two causins, namely, Zawab Khan and Jehanzeb Khan alias Khangai, to the Police Station and lodged a report alleging therein that on the eventful morning they (the complainant, Jamroaz and Jehanzeb) along with Zawab Khan were going by bus to produce him (Zawab Khan) to the Police as he was a proclaimed offender. One of their caste-fellow by the name of Mir Piyao alias Gud was also travelling h) the same bus. When they reached the scene of occurrence. Mir Yptioob, Akhya Jan.
Gulab, the two petitioners and five other persons, duly armed with Kalashnikovs, appeared from the front and stopped the bus. Accused Akhya Jan, petitioner Mianwar boarded the lorry and forced Gud to get off from the bus and started thrashing him. The complainant party came down and implored the accused to spare him (Gud) but the accused ran wild and started indiscriminate firing at them, resulting in the death of Zawab Khan and Jehanzeb. About the motive, it is stated that the accused had a dispute with Gud over a piece of land. However, there was no enmity or with the complainant party.
3. Yet, another version of the occurrence is reflected in case F.I.R. No,20, lodged on the same day at about 11-50 hours. Petitioner Mianwar, lying in injured condition in the Civil Hospital, Bannu, made report with A.S.I. Amir Nawaz Khan at about 11-50 a.m., recorded in the shape of Murasila and blamed accused Mushke Alam, Janoor, Razam and four others, all armed with kalashnikovs, for waylaying and resorting to firing when he, the petitioner Akbar Nawaz and Akhya Jan were proceeding on foot to Bannu. As result of firing, Akhya Jan was hit and died on the spot, whereas he and petitioner Akbar Nawaz sustained fire-arm injuries. The motive is stated to be a dispute over land.
4. The time and scene of occurrence in both the cases are the same. Admittedly, Zawab Khan and Jehanzeb lost their lives as result of fire-arm injuries from the complainant side. On the other hand, petitioner Mianwar suffered three fire-arm inlet wounds with corresponding exit wounds and the petitioner Akbar Nawaz sustained one fire-arm entry wound on the left side of neck with a 'corresponding. Exit wound, while Akhya Jan died of fire-arm injuries.
5. Indeed, it is neither possible nor desirable to hazard an opinion at such an early stage as that of bail as to question of aggression. Both the parties do not account for the loss or injuries suffered by the others. Similarly, both the parties observed complete silence about the damage caused to the bus with firing. As regards the addition of section 347, P.P.C. Regarding wrongful confinement of Gud, suffice to say, that it was neither mentioned in the F.I.R., nor in the statement of Kamroaz Khan, the only eyewitness mentioned in the F.I.R., that he (Gud) was taken away after firing by the accused party. Although Gud claims to have been taken away after firing by the accused to their house, where he was confined for four nights and his statement under section 161 as well as 164, Cr.P.C., was recorded on 12-6-1998, wherein, sadly he offered no explanation as to why he failed to appear before the Police earlier. How the occurrence took place or who is the aggressor, is a matter for determination at the trial. Suffice to say, that the occurrence gave rise to two different versions and, under the circumstances, the case of the petitioners is clearly of further enquiry within the meaning of section 497(2), Cr.P.C. We are supported in our view by the judgment of Supreme Court in case of "Shoaib Mahmood Butt v. Iftikharul Haq and 3 others" reported as 1996 SCMR 1885, wherein it was held as under:- "In case of counter-versions arising from the same incident, one given by the complainant in F.I.R.
And the other given by the opposite-party, case-law is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr. P.C. "
6. The learned Assistant Advocate-General, with usual frankness, did not oppose the petition.
7. We would, therefore, admit the petitioners to bail in the sum of Rs,2,00,000 (Rupees two lacs) each, with two sureties, each in the like amount, to the satisfaction of the trial Court, which is to ensure that the sureties are respectable, hail from the settled area of N.-W.F.P. And of sufficient means.