' This petition has been moved on behalf of Misal Khan who is, accused alongwith four others including Qaisar, who has been since. Murdered, and the contention is that though F. I. R. Accuses Qaisar and the petitioner both for having fired one shot each from their respective rifles and these fires hit the victim on the head and on the cheek below the eye, as a matter of fact, there was only one fire that effectively hit the victim. That is to say, the injury upon the cheek of the victim was entrance wound while the one on his head was the exit wound. Furthermore, the eye-witnesses in the case, namely, Faqir Muhammad, Faridullah, Aurangzeb and Shahzad Gul are very closely related to the deceased. As a matter of the fact, the former three are his sons and the last-named is-his son-in-law.
2. The learned Advocate-General who has appeared for the State and Mr. Mahfooz Khan, who is the counsel for the complainant party in the case, have opposed the petition and they say that the petitioner has been directly charged in the F. I. R. And that as many as 9 empties of 303 and one empty of a 12 bore cartridge have been recovered from the spot. They argue that this will show that there were at least 2 assailants. The learned Advocate-General further supplements his arguments by saying that at this stage this Court is not to determine the chance of success of the case and for the purposes of bail, the-allegations in the F. I. R. Should be sufficient to credit reasonable grounds for the belief that the petitioner is guilty.
3. I have given my anxious consideration to the arguments addressed on behalf of the State and by the complainant party but it is indeed difficult for me to persuade myself to agree with them that in a case where the medical evidence contradicts the positive assertion of the informant on A the point of effective fires, one being attributed to the petitioner, there should be a reasonable basis for the belief of guilt. Moreso, when th eye-witnesses are as closely related to the victim as has been asserted the learned counsel for the petitioner. The recovery of a '12 bore cartridge will not burden Misal Khan, petitioner, with any consequences, for, he has been credited with a rifle fire. The mere fact that 9 empties of '303 were discovered will not by itself establish that the assailants were more than one person.
4. On the view of the matter that I take I accept the petition and order that if the petitioner executed a bond in the sum of Rs, 30,000 with two sureties to the satisfaction of the Illaqa/Duty Magistrate, he should be released from custody.
5. Needless to add that these views are first impression views and should not stand in the way of the trial Court's coming to a contrary finding.