' Having been involved in a case registered vide F.I.R. No,81 dated 10-8-2001 under section 302/34, P.P.C. At Police Station Bagnotar, the petitioner .Applied for his release on bail in the Court of learned Judicial Magistrate, Abbottabad but his application was dismissed vide order, dated 22-11-2001.
Thereafter he moved the Court of learned Sessions Judge, Abbottabad, but his application met the same fate when it was dismissed vide order dated 29-11-2001. Now he has moved this Court for his release on bail.
2. Muhammad Anwar father of deceased reported that on 9-8-2001, he alongwith others was present in the courtyard of Polling Station, Polling Station Primary School Gul Doog to poll their votes in the Local Bodies Elections. A quarrel started between Haroon son of Sultan, Aurangzeb son of Mir Afzal and Javed son of Khushal at 13-15 hours. During The quarrel firing started and due to the fire of unknown person his son Liaqat received injuries on the abdomen and succumbed to the injuries in the hospital.
3. I have heard Qazi Shamasuddin, Advocate the learned counsel for the petitioner, Mr. Khurram Ghayas, Advocate representing the State and perused the record carefully.
4. The complainant Muhammad Anwar was absent due to his abscondence in case registered vide F.I.R. No,281 dated 2-11-2001 under section 302/34, P.P.C. In Police Station City, Abbottabad as is clear from the statement of S.H.O. Bagnotar recorded in this Court today.
5. In this case the occurrence took place on 9-8-2001 at 13-15 hours but the report was lodged on 10-8-2001 at 4-30 hours. No doubt the Police Station is situated 27/28 Kilometres away from the place of occurrence, but no explanation for the delay has been given either in the F.I.R. Or in the supplementary statement of complainant. The complainant had not charged any person by name in the F.I.R. It was, however, in his supplementary statement recorded before the Investigating Officer on 10-8-2001 after the delay of 12 hours that he charged Salim (petitioner), Rashid and Javed for the commission of offence. Salim and Rashid were specifically charged for the murder of Liaqat, son of the complainant and Javed was charged for injuring Sadiq. The supplementary statement was based on the information given to the complainant by Sheikh Farid, his nephew. It is worth mentioning that Sheikh Farid and the complainant took the injured Liaqat to Ayub Medical Complex and both remained with him till he succumbed to his injury. Till lodging of report, which was as mentioned above, was lodged after 12 hours' delay, Sheikh Farid did not pass on this information to The complainant that the deceased was done to death by `Salim, the petitioner. The delay in lodging the report and belated recording of supplementary statement, create sufficient doubt that the report was lodged after due deliberation and consultation.
6. Moreover, no empty was recovered from the spot. The weapon of offence though allegedly recovered on 12-10-2001 at the pointation of accused, the same was not sent to Arms Expert in order to know as to whether any firing was made with the recovered pistol or not. Except complainant, Haroon and Muhammad Sadiq, brother of the deceased, no independent witness has supported the case of prosecution. Muhammad Younis Khan, A.S.-I., who was present on duty at the Polling Station stated that there was exchange of firing between the two parties and he did not know as to with whose firing the deceased was hit and injured on the spot. The question as to whether the deceased was hit by the firing made by rival parties i,e, Haroon and Aurangzeb as well as Javed or by the firing of the petitioner needs further enquiry. Whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case .And the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in Jail, during the trial. Wisdom in this regard has been sought from Syed Amanullan Shah v. The State and another (PLD 1996 SC 241).
' For the foregoing reasons I admit the petitioner to bail provided he furnishes bail bonds in the sum of Rs,2,00,000 (rupees two lacs) with two sureties each in the like amount to the satisfaction of the Judicial Magistrate, Abbottabad, who shall ensure that the sureties are local, reliable and men of means.