' The petitioners, brothers inter se, are under arrest in case F.I.R. No,308 for committing the murder of Shakeel and attempting at the life of Muhammad Nawaz complainant and Mst. Chanani Khanum mother of the deceased, registered at Police Station Kot-Najibullah on 21-8-2001. Both of them were refused the concession of bail in the lower Court hence this petition.
2. Muhammad Nawaz disclosed in his F.I.R. That he alongwith his brother Shakeel were coming back to their home after cutting the fuel wood. On reaching the place of occurrence the petitioners who were armed with .12 bore shot gun and kalashnikov alongwith Haroon the absconding co-accused, armed' with pistol, emerged there and asked them why they were abusing them. All the three opened fire at them. He escaped himself while his brother Shakeel was hit by the firing in his head and died on the spot. Meanwhile Muhammad Riaz his maternal-uncle and his mother Mst. Chanani Khanum arrived at the spot and have witnessed the occurrence. The three accused also fired at his mother but she escaped unhurt. The motive was disclosed as blood-feud enmity.
3. I have heard the learned counsel for the petitioner who referred to the statement of Mst. Chanani Khanum wherein she has nominated Mushtaq petitioner and Haroon the absconding accused for inflicting injuries to the deceased and has supported the complainant only regarding the accusation of ineffective firing on her and Muhammad Nawaz complainant. From the site plan from place allocated to Haroon three empties of .30 bore pistol and from the place allocated to Mushtaq petitioner 9 empties of kalashnikov were recovered but no recovery of empty of shotgun was effected from Point No,7 allocated to Sultan. Further submitted that both the petitioners have surrendered themselves voluntarily. The medical report is in conflict with the ocular version furnished by the eye-witnesses in the sense that only one inlet injury was noticed on the body of the deceased while all the accused have been charged for firing at the deceased.
4. The learned counsel for the complainant opposed the concession of bail to the petitioners on the ground that it is a daylight occurrence and all the three accused are charged in the promptly lodged F.I.R. And ocular evidence as well as corroborated evidence in the shape of recoveries on the spot is available disentitling the petitioners for the concession of bail. As regards Sultan petitioner it is contended that under section 34 of the P.P.C. He is also vicariously liable for the murder of the deceased though his firing has not proved effective as stated by Mst. Chanani .Khanum and noticed by the Medical Officer.
5. The learned Deputy Advocate-General adopted, the arguments of the learned counsel for the complainant.
6. After hearing the learned counsel for the parties and going through the record and on making tentative assessm ent of the prosecution case I find the case against Sultan accused one of further inquiry because there is no independent corroboration of the role of firing attributed to him by the complainant and his mother who are not only closely related to the deceased but also inimical to the petitioners due to blood feud enmity. The place wherefrom Sultan petitioner allegedly fired at the deceased has been recorded at a distance of 23 paces from the deceased. A Had he fired at the deceased from such a distance by means of D.B. Shotgun there must have been a stamp of injury on the person of deceased or the eye-witness and the card board should also be there on the spot. In view of the available record I find the case against Sultan petitioner of further inquiry which makes him entitle' for the concession of bail. He be released from custody provided he furnishes bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction ' of Illaqa/Duty Magistrate.
7. The case against Mushtaq petitioner is different as he is charged by the three eye-witnesses for effective firing by means of kalashnikov possessed by him at the relevant time. Though the eye- witnesses are closely related to the deceased but their deposition had got independent corroboration in the shape of recovery of 9 empties of kalashnikov from the place allocated to him and the medical report wherein a bullet injury in the head of deceased was noticed in the autopsy. -Prima facie he is connected with the commission of the offence, therefore, prayer for concession of bail is refused to him.