2018 P Cr (PLP)

MOHAMMAD IBRAHIM KHAN, J.

On enumeration of the facts leading to lodging of the First Information Report vide FIR No.673 dated 20.10.2016 charged under sections 302, 324/34, P.P.C. registered at Police Station Tangi, Charsadda, the complainant Mujahid Gul accompanied by the corpus of Khalid reported that on the fateful day, he along with his brother Sajid Gul and his son deceased Khalid came out from their house in order to bring milk from their farm they reached at a place thoroughfare Mohallah Pir Baba Kanday situated in village Abazai 5/6 kilometers towards the west of Police Station Tangi.

2. The accused/Petitioner Gulzar and his brothers Zarar, Sabz Ali and Kamil sons of Khaya Daar, on seeing them opened fire with their respective firearms in order to kill them. With the said fire shots, the deceased Khalid was hit who died there and then while both the complainant and his brother Sajid Gul escaped unhurt. This occurrence besides the complainant has been witnessed by his brother Sajid Gul.

3. By the time, this occurrence had taken place, the motive behind for this gruesome murder of his son and firing upon the complainant and his brother was not known.

4. The Petitioner was declined bail earlier by the Court of learned Additional Sessions Judge, Charsadda at Tangi vide his order dated 17.11.2017. Hence, this is another attempt seeking liberty by presenting this application before the Hon'ble High Court.

5. Having heard arguments of learned counsel for the Petitioner and learned A.A.G. for the State, record with their valuable assistance gone through.

6. It is to mention here that the Respondent No. 2 Mujahid Gul is the complainant of this case who has later been named in case registered against him and is since then fugitive from law, therefore amongst the Respondents, only learned A.A.G on behalf of the State was heard.

7. Learned counsel for the Petitioner has referred to the order of this Court in Cr. M. B.A. No. 2201-P/2017 titled as "Israil alias Minaj v. The State and others" and the judgment in Cr. M. B.A. No.2400-P/2017 titled as "Israil v. The State". In the given esteem verdicts in view of the observation in Para-3 of the earlier judgment and Para-4 of the latter judgment, it was kind enough that Petitioner Israil alias Minaj was granted bail in two different cases on the ground that the deceased has sustained two firearm entry wounds from the same direction having same dimensions of 1 x 1 cm. A general role of firing has been attributed to the Petitioner along with absconding co-accused in the FIR The two crime empties of .30 bore were recovered from the spot and according to the F.S.L report, these have been fired from one and the same .30 bore pistol, therefore in view of the matter it was to be determined during trial whether the occurrence was the job of a single person or otherwise and at that time, the Petitioner Israil alias Minaj role was arguable for the purpose of grant of bail as he was given bail in view of the judgments of the Hon'ble apex Court in Mitho Pitafi's case (2009 SCMR 299). In the other case as referred to the Hon'ble High Court has also held that the kind of weapon has not been mentioned by the complainant that which accused was armed with which type of weapon and the empties being recovered of 7.62 bore. When sent to the Fire Arms Expert, it was known that the empties were fired from one and the same weapon, therefore it can be the job of one person.

8. On this analogy together with the judgment as reported in 2016 PCr.LJ 297 "Nazar Gul v. The State and another" learned counsel for the Petitioner is seeking bail to the present Petitioner as in the First Information Report, the firearm is shown as: and there is no mention of the exact firearm which has been used by all the brothers including the accused/Petitioner.

9. According to the medical report, there are four entry wounds have a single exit wound on the skull, causing fracture of skull bone and brain matter is laying outside along with the other entry wounds are on the right shoulder and left side of chest including abdomen of different sizes. It would be at best exhibitive when the Medical Officer is examined by the Trial Court with regard to the different sizes of the entry wounds, thereby the role of the Petitioner would fall like night and day dissimilar from the role given to Israil alias Minaj who has been entitled for bail by the above referred dictums of the Hon'ble High Court.

10. This is promptly lodged First Information Report keeping in view the distance between the place of occurrence and the Police Station and at a place known as Casualty Hospital Tangi. The Petitioner has also remained in absconcion for more than a year and his brothers are also fugitive from law. Therefore, he does not deserve the concession of bail.

11. Hence, this petition stands dismissed. MQ/140/P Bail refused.