2002 PLP 1757 (MLD)

Noor Alam Khan for Petitioners. Abdur Rauf Gandapur for the State. Date of hearing: 19th April, 2002. Zard Ali and Shad Ali sons of Akhtar Muhammad, residents of Sher Garb, Tehsil and District Mardan have filed this bail application in a case registered under sections 302/324/34, P.P.C. vide F.I.R. No.429 dated 10‑6‑1999. The father of the petitioner was also accused in the case, who was admitted to bail by this Court on 17‑12‑1999. The two petitioners were at large and they had surrendered more than two and a half years after the occurrence, after their father was tried and acquitted by the trial Court.

2. The F.I. R. in the case was registered on the report of Muhammad Amin, who alleged that on 10‑6‑1999, he alongwith his nephew Momin Khan, brother Abdul Aziz and one Zarin Gul had gone to the house of Akhtar Muhammad to furnish explanation regarding the latter's allegation and grievance about the poisoning of his chicken by the complainant party. That during the conversation, Akhtar Muhammad and Rahman Shah attacked the complainant party with sticks and clubs, whereafter Akhtar Muhammad commanded his two sons, Zard Ali and Shad Ali, to open fire, which they did with their kalashnikov resulting in injuries to the complainant and Momin. Both were hit on their legs. However, Momin succumbed to his injuries. The occurrence allegedly took place at around mid‑night.

3. The learned counsel for the petitioner contended that the co -accused of the petitioner, that is, their "father has been acquitted. That it was night occurrence and there was no source of light. That the story put forth by the complainant about going to the house of the accused at the middle of the night to appears them was unbelievable.

4. That learned counsel representing the State submitted that the petitioners were directly charged in the F.I.R: That they have remained absconders for more than two and a half years. That there was motive for the commission‑of the crime: The complainant‑Muhammad Amin was present in Court but expressed his inability to engage a counsel.

5. Akhtar Muhammad was admitted `to bail 'on the` 'ground that he had only been attributed stick blows and command to his son to open fire. That also appears to be the reason for his acquittal, as it appears from the judgment of the trial Court. Both the petitioners have been charged in the F. I. R. Akhtar' Muhammad had also made a` confession in which he stated that he was beaten up by the complainant party at midnight and he called for help: That Zard Ali petitioner, who came‑out of the house, fired at the complainant party which hit the two victims on their legs. Akhtar Muhammad had also made a counter‑report about the beating given to him by the complainant party. The same was recorded at Mad No. 14 in the Daily Diary of 10‑6‑1999. In view of the above circumstances and the Confessional Statement of Akhtar Muhammad, the case of Shad Ali petitioner or the purpose of bail is distinguishable. Whereas Zard Ali petitioner has been charged in the F.I.R. as well as in the Confessional Statement of Akhtar ‑Muhammad, Shad Ali petitioner does not figure as an assailant in the confessional statement. The application of Zard Ali petitioner is, therefore, dismissed whereas Shad Ali, petitioner is admitted to bail 'in the sum of Rs.100,000 with two sureties, each in the like amount to the satisfaction of Illaqa/Duty Magistrate. N.H.Q./556/P Order accordingly.