' SHAHZAD AKBAR KHAN, J.--- The petitioners, Nisar Khan and Israr Khan, sons of Abad Khan, are involved in case F.I.R. No,,324, dated 8-10-1998 of Police Station Cantt. Bannu under section 302/34, P.P.C. And having remained unsuccessful in getting bail from the Court of Special Judge, Bannu, have, therefore, moved the instant application for getting themselves released on bail.
2. The short resume of the prosecution case disclosed in the F.I.R. Is that on the night of 8-10-1998 Nasnillah Khan deceased was sleeping on the upper story, while the complainant Asgharullah was sleeping in the courtyard of their house. At about 2-00 a.m. The complainant heard fire-shots who went upstair and saw his uncle in injured condition. Nisar Khan armed with a .30 bore pistol while Israr Khan and Munawar Khan duly armed, with Kalashnikovs were seen by the complainant getting down from the roof. The complainant claimed to have identified the accused in the light of bulb and also in the moonlight. The deceased also disclosed to him the abovementioned accused for attacking on his life attributing pistol shot to accused Nisar Khan. The injured, however, succumbed to his injuries and died thereafter. Motive for the occurrence is disclosed as blood-filed enmity between the parties.
3. Learned counsel for the petitioners submits that the petitioners have been falsely implicated in the case, because of the previous enmity between the parties. There was no reason for them to take the life of the deceased Nasrullah, because there was no direct enmity between the deceased and the petitioners. He referred to the statement of Mst. Gulzar Bibi, widow of Nasrullah who in her statement recorded on 3-12-1998 has clearly exonerated the petitioners by saying that on the eventful night she was in the house of her parents, where she was informed that her husband had been murdered by someone. The learned counsel vehemently stated that she had departed from her earlier statement recorded on 8-10-1998. He next contended that the instant case was manufactured against the petitioners as a compelling device to oblige the other party for the compromise in the Murder Case No,,214 of 14-6-1995, in which Nisar Khan, one of the petitioners, is complainant. He also made reference to the findings of the police, which as a result of investigation had found the petitioners innocent being charged in a false and fabricated case. It was further argued that during investigation, another version of the occurrence had surfaced, when Khalid accused was arrested by the police who in his statement before the police has stated that he along with other two persons had gone to snatch money from the deceased and during that transaction on the resistance of the deceased, he was shot by them. According to the learned counsel, in these circumstances, case of the petitioner falls with the purview of "further inquiry".
4. On the contrary, learned counsel for the complainant with a full force controverted the arguments of the counsel for the petitioners and submitted that the petitioners have remained absconders in this case for a considerable period and were arrested on 11-2-1999, while the occurrence took place on 8-10-1998. The petitioners are directly charged in the F.I.R. And the prosecution case is fully supported by the medical evidence. He submitted that the enmity between the parties started as back as 1975 and various F.I.Rs, were registered against the complainant party including the deceased. He seriously criticized the opinion of the Investigating Agency and termed it as their own embroidery, which cannot be taken into consideration in the judicial proceedings and the police can adopt the course of taking action under section 169, Cr.P.C.
If they are sincere in their opinion. He asserted that in view of the statement of the complainant and also disclosure of the assailants by the deceased himself, the subsequent conduct of the widow cannot have a denominating position to discard the other evidence of high order and quality.
5. We have given our anxious thoughts to the arguments of the learned counsel for the parties and thoroughly examined record of the case. The data so far collected' by the prosecution is sufficient to constitute a prima facie case against the accused Nisar Khan, whereas the case of accused Israr Khan is distinguishable from his brother co-accused Israr Khan, who has not been attributed any active role, as the role of firing at the deceased is assigned to Nisar Khan. Only one empty of .30 bore pistol was recovered from the spot, but there is no recovery of 7.62 bore empties or other materials relevant to the Kalashnikov with which the petitioner Israr Khan was allegedly equipped.
The medical report also shows that there is only one entry wound of 1/4" in size. We are, therefore, of the opinions that the case of Israr Khan calls for further enquiry and, as such, we accept this bail application only in respect of petitioner Israr Khan, whereas the application of accused Nisar Khan is rejected. The petitioner Israr Khan shall be released on bail provided he furnishes a bail bond in the sum of Rs,two lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.