2005 PLP 482 (YLR)

2. Briefly the facts of the prosecution case as contained in the F.I.R. are that on 4‑11‑2000 at about 1‑30 a. in. the complainant Haji Saeed‑Ullah Khan along with his brothers Zafar Ullah. Khan, Sher Khan and Mubashar Hassan on Truck No.2470‑K Peshawar proceeded towards Lahore. The truck was driven by Zafar Ullah Khan. At about 4‑00 a.m. they when reached bridge Mianwali Canal at Lahore Sargodha Road, all of a sudden five slim and smart persons armed with lethal weapons came in front of the, truck. They signaled them to hault. Thereupon, Zafar Ullah Khan made slow the speed and then tried to accelerate the same. Thereupon, one of them of long face and smart body fired with 12 bore gun at him (Zafar Ullah Khan). The pellets hit on his face and neck. He was seriously wounded and succumbed to his injuries at the spot. The occurrence besides his own self was witnessed by Sher Khan and Mubashar Hassan. The accused thereafter fled away from the scene.

3. It has been contended on their behalf that they have falsely been roped in; that they are not named in the F.I.R.; that they were not put to any identification test; that more than two years after the alleged incident the complainant had moved an application to the effect that he has come to know from reliable sources that the petitioners/accused had murdered his brother Zafar Ullah Khan in the attempt to commit dacoity; that there is no other evidence with the police on record to connect them with the crime alleged; that the alleged recovery of crime weapons is fake and planted one and even otherwise the same. alone cannot connect them with the offence as the deceased statedly was fired at with 12 bore gun; that they are behind the bars; that so far neither complete or incomplete challan has been submitted in Court; and that they are previous non convicts.

4. Conversely, the learned counsel for the State has opposed the petition on the ground that their names have figured in the supplementary statement of the complainant recorded on 27‑1‑2003; and that the recovery of crime weapons is also there to connect them with the crime.

5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.

6. The fact remains that they are not named in the F.I.R. They admittedly were also not put to any identification test. The only material so far brought on record against them is the application made by the complainant to the police against them on 27‑1‑2003 and his supplementary of the same day in it's (application) line.

7. It may also be relevant to mention here that the said application and the supplementary statement were made about two years after the alleged incident.

8. The learned State counsel has also frankly conceded that except than this and the recovery of crime weapons, there is no other evidence on record against them.

9. The complainant statedly in the said application and his supplementary statement has said that he is sure that these accused have murdered his brother in the attempt to commit dacoity.

10. The alleged recovery is of weapons other than the gun. Here it may be worth mentioning that according to the F.I.R., the deceased had received injuries with .12 bore gun.

11. Hence, it is yet to see that if on the basis of such evidence alone, they ultimately can be held liable for the alleged offence or not. Their case, therefore, is one of further inquiry into their guilt and so, covered under subsection (2) of section 497, Cr.P.C.

12. They are behind the bars and stated to be previous non‑convict.

13. In these circumstances, I find that case for their enlargement on bail has been made out. The petition therefore, is accepted and they are allowed bail provided they furnish bail bonds in the sum of Rs.1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Sheikhupura/trial Court. H.B.T./A‑951/L Bail granted.