1988 P Cr (PLP)

Ijaz Hussain Batalvi and M.A. Zafar for Petitioners. Rabnawaz Khan Niazi for the Complainant. Badar Munir for the State. Muhammad Anwar, Muhammad Afzal and Muhammad Akram petitioners and one Rohtas Khan are accused of having committed the murder of Fakharullah by firing at him, at 1 p.m. on 11‑11‑1986, in front of shop of Muhammad Hayat, a hen‑seller, in Guru Bazar, Mianwali, where the deceased had gone to purchase a hen. As the petitioners were declined bail by learned Additional Sessions Judge, Mianwali, on 6‑7‑1987, hence this application.

2. According to FIR, Ghulam Shabir complainant, and Fakharullah (deceased) were sitting on a cot while Muhammad Hayat was cutting the hen purchased by them when the petitioners accompanied by Rohtas Khan armed with guns suddenly appeared there and Muhammad Anwar petitioner raised a Lalkara that they have come to avenge the insult of Rohtas Khan accused. Fakharullah (deceased) started running to save his life but Rohtas Khan fired at him hitting on his buttocks as a result of which he fell down. The petitioners also fired from their guns but nobody was hit with their firing. Farkharullah died on the spot. F.I.R. was lodged within half an hour of the occurrence. The motive for attack was stated to be that Fakhrullah owed some money to Rohtas Khan co‑accused and, therefore, he (Rohtas Khan) had snatched his (deceased's) tractor saying that it would be returned as and when the deceased would pay his money. The tractor was, however, returned to Fakkharullah at the intervention of respectables. Earlier in the day the deceased had given cane‑beating to Rohtas Khan on the bus stop of Mianwali and to avenge this insult he .was attacked and killed by the accused party as stated above.

3. It is contended on behalf of the petitioners that Muhammad Anwar and Muhammad Afzal petitioners are first cousins while Muhammad Akram petitioner is real brother of Rohtas Khan who have been falsely involved in order to put the family of Rohtas Khan, the principal accused, to utmost grief. It is argued that in cases where the accused are attributed ineffective firing are ordinarily allowed bail. Reliance is placed on Sultan Ahmad etc. v. The State 1981 S C M R 771 wherein the accused who were attributed ineffective firing were allowed bail by Supreme Court of Pakistan. Replying, learned counsel for the complainant relied on Rashid Khan and others v. The State 1986 SCMR 933 submitted that in a similar case the High Court refused bail which order was not interfered with by the Supreme Court. He further submitted that 15 pellets were recovered from the, spot during the investigation which shows that more than one shot were fired and fact prima facie establishes that the petitioners had taken part in the occurrence. Learned State counsel submitted that during the investigation, the petitioners have been found guilty and guns have also been recovered from them but he admits that no empty was recovered from the spot and that nobody was hit with the shots fired by the petitioners.

4. Having carefully considered the facts and circumstances of the case I find that only ineffective firing is attributed to the petitioners, and guns recovered from them have not been proved to have been used in the commission of the crime, therefore, the question whether or not the petitioners took part in the attack mounted on Fakharullah needs further inquiry and as such the case of the petitioner prima facie is covered by subsection (2) of section 497, Cr.P.C. In this view of the matter I would allow this petition and direct that the petitioners shall be released subject to their furnishing bail bonds in the sum of Rs.50,000 each (Rupees fifty thousand only) with one surety each in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Mianwali. M.Y.H./M‑447/L???????????????????????????????????????????????????????????????????????????????????????????? Bail granted.