1997 P Cr (PLP)

Salimullah Khan for the State. ''Zafar Abbas Zaidi for the Complainant. The petitioners who were charged for an offence under section 302/ 324/34, P.P.C. read with section 13, Arms Ordinance vide case F.1-R. No.330, Police Station Cantt. Dera Ismail Khan on 1-7-1996, were refused bail by the Judge, Special Court on 26-8-1996, and through the instant petition they are seeking concession of bail under section 497/498, Cr.P.C. read with section 5-A(8), S.T.A. Act, 1975.

2. Facts as reported in the F.I.R. are that on 1-7-1996 at 7-45 hours Sher Khan the injured complainant lodged a report on the spot that on the same day at 7-45 hours he left his house and was going through motorcycle to his shop known as Yaseen Sports situated in Rahim Bazar, D.I. Khan. When he reached the State lands cultivated by Karim Bakhsh, the three accused, namely, Allah Wasaya (absconding accused), Muhammad Ramzan and Haqnawaz petitioners were standing duly armed with klashnikovs and on seeing the complainant all the three opened fire at the complainant with intent to kill him. As a result of the said firing he sustained injury on his left shoulder and fell down from the motorcycle. The complainant took shelter in the house of Akram Baloch. After a few moments the complainant heard fire shots. He ran towards the destination and saw that all the three accused were firing on his brother Gul Zaman who was on the way from his night duty. The accused fled away after the occurrence. The complainant noticed that Gul Zaman was murdered due to the said firing. It was disclosed in the report that occurrence was witnessed by Zulfiqar, Muhammad Bilal and Haqnawaz sons of Allah Bakhsh. The motive for the occurrence was reported to be an altercation between the accused and one Shah Jehan brother of the complainant. In the said altercation the accused threatened to kill him.

3. The learned counsel for the petitioners submits that the report in the instant case was lodged on the spot after half hour of the occurrence. Although it is stated in the F.I.R. that after receiving a telephonic message about the occurrence in the police station the A.S.-I. who is author of the report/Murasila has not reduced it into writing the telephonic message which was in fact the first information received in the police station about the occurrence. The learned counsel further submits that the eye-witnesses mentioned in the F.I.R. have not supported the version of complainant in toto. All the three witnesses have not mentioned the name of Muhammad Ramzan accused as assailant in their statements under section 161, Cr.P.C. P.W. Haqnawaz has said nothing about the injury caused to the complainant rather the name of complainant is no where mentioned in his said statement. P.W. Haji Zulfiqar though affirmed the injury sustained by Sher Khan complainant but has not deposed that from whose firing Sher Khan received the injury. The learned counsel for the petitioners further submits that Sher Khan complainant had received single shot injury. The site plan shows that complainant was at a distance of 6 paces from the accused 3 in number allegedly armed with klashnikovs and the version of the complainant is improbable not only against his own injury but also witnessing the subsequent firing at the deceased at a distance of 256 paces. No empties were recovered from points 2, 3 and 4 where the accused were allegedly present while firing at the complainant. However, empties were recovered from point No. 10 lying near the places where accused are shown to have fired at the deceased.

4. In view of these facts, the learned counsel for the petitioner is of the view that the case against accused-petitioners require further enquiry and at least the case of accused Muhammad Ramzan who has not been mentioned in the statements of eye-witnesses recorded under section 161, Cr.P.C.

5. The learned counsel for the complainant submits that all the three accused have brutally murdered the deceased and have effectively attempted at the life of the complainant. It is a day light occurrence and the sole statement of injured complainant is sufficient to establish a prima facie charge of murder and attempt of committing murder against the accused. He further submits that report of complainant has got corroboration from the recoveries on the spot and the medical and inquest reports. The learned State Counsel supported the version of the complainant's counsel and submitted that even if one injury was stamped on the body of complainant, all the three accused were vicariously liable for the offence. The absconding accused Allah Wasaya was arrested in the case but fled away from the police custody which shows the conduct of accused and argued that if the concession of bail is extended to the accused-petitioners they may abscond and avoid the trial.

6. I have gone through the record with the assistance of learned counsel for the parties and have given my anxious consideration to the submissions made at the Bar. The case of Muhammad Ramzan accused is at different footings than Haqnawaz as Haqnawaz accused-petitioner is not only charged by the complainant but by all the eye-witnesses. While none of the eye-witnesses has mentioned the name of Muhammad Ramzan as assailant. Since Sher Khan complainant has received only one injury on his person, and he has not specifically charged any of the accused among the three although all -the three accused have been shown at a distance of 6 paces.

7. The version of complainant vis-a-vis his own injury is worth consideration but his eye-witness account of the murder of deceased seems to be doubtful because in his own version while receiving injury on his shoulder he fell down and it is yet to be clarified that he was in a position to go and see the venue of murder at points 11, 12 and 13 at distance of 256 paces from the place where he sustained injury.

8. In this view of the matter without going into deep merits of the case and on tentative assessment of the available record, I hold that the case of Muhammad Ramzan alias Babbar Sher accused requires further enquiry and is entitled to be released on bail. Further keeping in view the charge of murder and r attempt at the life of complainant vis-a-vis Haqnawaz has got sufficient material and if left unrebutted at the trial, Haqnawaz could be held guilty of the offence.

9. Therefore, the bail prayer of Haqnawaz accused-petitioner is rejected II whereas Muhammad Ramzan alias Babbar Sher accused-petitioner is released on bail provided he furnishes bail bond in the sums of Rs.1,00,000 with three sureties each in the like amount to the satisfaction of M.I.C./M.O.D. N.H.Q./2111/P Order accordingly.