1987 PLP 1642 (MLD)

1978 S C M R 70 ref. M.M. Idris for Petitioner. A.A.-G. for the State. Fazal Gul Khan and Malik Mehmood Akhtar for the Complainant. Date of hearing: 13th June, 1987. Khushal son of Faqir Muhammad and his co-accused namely Rustam, Manzoor and Aurangzeb on the rejection of their application for grant of bail by the Ilaqa Magistrate as well as by the Sessions Judge, Abbottabad vide their orders dated 11-5-1987 and 17-5-1987 respectively in offence u/s.302/307/34, P.P.C. charged for in F.I.R No.36 dated 2-5-87 of police station Bagnotar have made this further application.

2. Report of the occurrence was lodged by Zardad Khan brother of Mst. Safia Bibi deceased on getting information of the occurrence from Mir Dad and Jawaid his uncle and cousin respectively on his arrival at the spot on hearing the firing. He was informed that Mst Safia Bibi was fired at by Aurangzeb son of Mir Zaman while with the firing of Manzoor, Jawaid was injured and with that of Rustarn. Mst. Mohazam Jan got injured. Motive of the offence was given out to be a dispute between the parties over a Banna of their land. Khushal was not charged in the F.I.R but his name was subsequent) introduced by the eye-witnesses and the role attributed to him was that he though empty handed ordered the other co-accused to fire The learned counsel for the petitioners frankly conceded that at this stage he is not going to press for the bail of Aurangzeb accused who is directly charged for the fatal shot. However, he stressed for the release of his co-accused on bail. It was contended that Khushal son of Faqir Muhammad petitioner is not mentioned in the F.I.R. though the same was lodged at the police station after he got full information of the occurrence from the injured and his uncle Mir Dad. With regard to the other two accused it was, contended that in the medical evidence the injuries found on their person are simple in nature and so far it is not proved that these injuries were the result of fire-arm. The learned counsel relied on Muhammad Akbar and four others v. The State and another a judgment of the Supreme Court of Pakistan reported in 1978 S C M R page 70 wherein it was held that the accused who were alleged to have caused simple injuries to the complainant, their case was on different footing from the case of an accused who was attributed the fatal shot and in that view of the matter bail was allowed to the said accused who were attributed simple injuries while bail was refused to the co-accused charged for fatal shot.

3. Learned counsel appearing for the complainant, however, in resisting the application for bail argued that all the accused in furtherance of their common intention took position near the house of the complainant and fired at the inmates of the house resulting in the death of Mst. Safia Bibi and injuries to Mst. Moazam Jan and Jawaid. It was further argued that at the time of the inspection of the spot a pellet of empty was recovered of .12 bore while the fatal shot was fired by Aurangzeb which was that of fire-shot rifle. It, therefore, established that more than one person fired at the complainant party. The learned Assistant Advocate-General did not support the order of the learned Sessions Judge as far as it concerned Khushal accused-petitioner. However, he argued that the other three accused are fully connected with the commission of the offence at this stage and they are not entitled to the grant of bail. Hearing the learned counsel for the parties and perusal of the record it is apparent from the record that the deceased was hit while she was in her house and similarly the other two injured were present in their house when they were fired at by the accused party. From the spot inspection a pellet of .12 bore was recovered from point No.6 while the decease received a bullet injury. This corroborates the complainant's version that more than one person fired at the deceased and the other inmate of the house and that different weapons were used. At this stage when the investigation is at an initial stage and the charge of firing by rifle and .12 bore shot gun substantiated by the recovery the discretion exercised by both the Courts below in refusing bail to' Aurangzeb, Rustam and Manzoor requires no interference. However, as Khushal's name is not mentioned in the F.I. R. and he was) subsequently stated to be empty handed, he is entitled to the grant) of bail as his case falls within the purview of further enquiry. The judgment cited by the learned counsel for the petitioners is distinguishable as in that case the discretion exercised by the learned Sessions Judge was interfered with by the High Court and their Lordships held that the discretion on the facts and circumstances of the case should not have been interfered with. Furthermore the detailed facts are not given in the reported judgment, therefore, it cannot be said that the facts of the present case are identical with that of the present case. For the reasons Khushal accused-petitioner is allowed bail in the sum of Rs.20,000/- with two sureties in the like amount to the satisfaction of the Ilaqa/Duty Magistrate while bail application of the other accused-petitioners stands rejected. S.A./405/P Appea partly accepted