' Saatbillah Jan son of Gulla Jan of Wandha Amir Lakki Marwat is refused bail in case F.I.R. No, 392, dated 17-9-1998 of Police Station Lakki Marwat registered under section 302/324/148/149, P.P.C., and hence this petition.
2. Said Rasool complainant has lodged the F.I.R., about the murder of his brother-in-law, Sakhi Samar Khan, at the Police Station Lakki Marwat narrating occurrence to the effect that he on the fateful day along with his brother, Sheikh Alam, at about 0845 howl, was vending grams in the Bus Stand. Four to five persons, duty armed, were sitting near them when from the side of Adda Michen Khel, Shumal Khan, along with his driver appeared in a motor car. The persons sitting near him got up and started firing at the motor car of Shumal Khan. The driver had an escape by taking the car into a street. The driver also got down from the car and opened fire at the party mentioned above.
Meanwhile, the deceased Sakhi Sarwar Khan intervened to effect separation. He managed to send off Shumal Khan and the opposite party comprising of Saadullah Jan etc., were also made to sit in their car and advised to leave, when, Saadullah Jan petitioner who was armed with a .12 bore shotgun opened fire, obviously, at the party of Shumal Khan but Sakhi Sarwar got hit instead and died.
3, Learned counsel for the petitioner claimed that after such report, one of the accused, named Wali Khan, was arrested who lodged a report that gave some different narration of the occurrence but such report was not registered. A third version of the occurrence had appeared in F.I.R. No,393 which was lodged by Amir Nawaz A.S.I. On the basis of version furnished before him by one Bakhtiar. That in such F.I.R.. The narration of Bakhtiar was reproduced yet he was made an accused.
The second stance of the learned counsel was that three versions of the occurrence being apart, the petitioner in report under section 173, Cr.P.C., is placed in column No, 2 thereof and was, thus, entitled to be released on bail.
4. Mr. Abdul Latif Baluch, Advocate, the learned Assistance Advocate-General vehemently refuted the stance taken aforesaid d added that this whole fuss was created by the Investigating Officer who happened to xamine Badshah Khan, Zahir Shah and Cul anan on 15-12-1998, almost three months after the occurrence and on, the basis of such statement the Majority of the accused were laced in column No,2, That such act of investigating Officer was male fide especially when the witnesses aforesaid were related to cussed Saadullah Jan, the petitioner.
5. The parallel story put forth by such witnessed was that during intervention for cussing separation, the deceased lay his hands upon the of Saadullah which accidentally went off and so hit the deceased. In this behalf, learned counsel stated that in such eventuality the injured ought to have had hearing marks but his injuries were extended were a space of more or less 8" meaning hereby, that the fire had originated from the distance of 18 to 24 feet. That the strong circumstantial evidence in the shape of post mortem examination/medico-legal report opened to negate the parallel story. The argument' of the learned counsel for the complainant is not without force at least at this stage.
6. It is a broad daylight occurrence there the petitioner is directly and by name arranged for effective firing which was tidally attributed to him. The post mortem/medico legal report supports the version given by Said Rasool complainant to had no motive at all to falsely implicate the occurrence is prima facie witnessed by eye-witnesses and the F.I.R., is most promptly lodged within 25 minutes. The counter argument that the petitioner had .No A enmity with Sakhi Sarwar, is not plausible; rather, it lends support to the prosecution version that deceased Sakhi Sarwar got hit with the fire that was aimed at some .e else. Till the counter-version is justified and till the present eye-witnesses are shattered at trial, the petitioner seems prima fade connected with the death of Sakhi Sarwar Khan'. It falls B within the prohibitory clause of section 497, Cr.P.C. The application is rejected.