' Having been involved in a case registered vide F.I.R. No,477, dated 4-11-2003 under section 302/34, P.P.C. At Police Station Mathra, accused-petitioners applied for their release on bail in the Court of learned Judicial Magistrate, Peshawar but their application was dismissed vide order, dated 16-12- 2003. Thereafter, they moved the Court of learned Additional Sessions Judge, Peshawar for their release on bail but application met the same fate when it was dismissed vide order, dated 15-1- 2004. They have now moved this Court for their release on bail through the application in hand.
2. Nadir Khan complainant reported that he was taking meal with his family members when Iqbal alias Baley and Abid sons of Saifoor and Mussarat called them out of their house. They were duly armed with "Aslah Atsheen"(URDU TEXT). Nadir Khan complainant, his brother Amir Nawab and father Ghulam Muhammad came out of their house. The mother of the complainant Mst. Zareena also followed them. When they came out, the accused started grappling with them and Mussarat fired at his father with which he was hit and died on the spot. The occurrence was also witnessed by Amir Nawab, his brother and Mst. Zareena, the mother of the complainant.
3. Mr. Safirullah Khan, the learned counsel representing the accused-petitioners, argued that the accused-petitioners have been charged for grappling with the complainant and the eye-witness, namely, Amir Nawab. They have not been charged for firing at Ghulam Muhammad deceased.
Even there is no evidence available on record to indicate that the accused-petitioners had grappled with the complainant and the eye-witness Amir Nawab.
4. It was also argued that co-accused Mussarat has been assigned the role of murdering Ghulam Muhammad and the site plan indicates that he (Mussarat) was present at point No,5 wherefrom 7 empties of .30 bore have been recovered by the Investigating Officer. Iqbal alias Baley and Abid accused-petitioners have been shown at points 6 and 7 wherefrom no empty has been recovered by the Investigating Officer.
5. It was further argued that the occurrence took place at 18-00 hours whereas the report was lodged at 19-15 hours i,e, after the delay of one hour fifteen minutes. It was night occurrence and there was no source of light with which the accused could be identified. Even the site plan was prepared in the light of torch and lantern.
6. On the other hand, Mr. Waheedullah Khan, the learned counsel representing the State and Ms. S.Naz Muhammadzai, the learned counsel appearing for the complainant, argued that all the accused had called out the complainant, his father and brother out of their house before "Aftari time" and the father was killed in presence of his son and wife brutally. The accused-petitioners facilitated co-accused Mussarat in the commission of offence and they shared common intention, therefore, section 34, P.P.C. Was applicable to the case.
7. It was also argued that the challan of the case has been put into the Court against the present accused-petitioners. One of the co-accused, namely, Mussarat is still absconder, therefore, the accused-petitioners are not entitled to the concession of bail.
8. I have heard the arguments of the learned counsel for the parties and perused the record of the case.
9. In the case in hand, three real brothers were involved for murdering Ghulam Muhammad deceased. The case of the prosecution is that the complainant alongwith his family members was busy in taking meal when they were called by the accused-party to come out of their house. He alongwith his brother Amir Nawab and father Ghulam Muhammad came out of their house. The mother Mst. Zareena, mother of the complainant, also followed them. When they came out, the accused-petitioners started grappling with them. Accused-petitioner Iqbal alias Baley has been shown at point "6" in the site plan and it has been mentioned therein that he grappled with Amir Nawab at the said point whereas Abid accused-petitioner has been shown at point "7" where he grappled with co-accused. Mussarat alone has been charged for firing at Ghulam Muhammad deceased who had received two inlet wounds. The nature of arms with which the accused- petitioners as well as the absconding co-accused were armed, were not mentioned in the There is no allegation whatsoever that the accused-petitioners had also used any "Aslah Atsheen" i,e, they have not been charged even for aerial firing. The prosecution has recovered seven empties of .30 bore from point "A" which is close to point "5". Since the accused-petitioners have been only assigned the role of grappling with the complainant Amir Nawab, therefore, their case stands at lower pedestal than that of the actual accused who has been assigned the role of effective firing and who is still absconding. The possibility of roping the accused-petitioners into the case who are real brothers of the absconding co-accused at this stage cannot be ruled out.
10. So far as the question of vicarious liability of the accused is concerned, the same would be determined at trial after recording the evidence. At the moment, accused-petitioners only stand charged for grappling with the complainant and eye-witness and not for firing at the deceased Ghulam Muhammad.
11. Keeping in view the dicta laid down in Faraz Akram v. The State 1999 SCM R 1360, I allow the application in hand and direct that the accused-petitioners be released on bail if they furnish bail bond in the sum of Rs,3,00,000 (rupees three lacs only) each with two sureties each in the like amount to the satisfaction of the learned Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means.