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Criminal Miscellaneous No.641/B of 1987, decided on 16th March, 1987.

---S.497--Penal Code (XLV of 1860), Ss.302, 148 & 149--Bail, grant of--Two investigating officers of rank of Inspector and D.S.P. postponing arrest of, accused for non-availability of material justifying their arrest--Third investigating officer also finding accused prima facie innocent and leaving them to decision of Court--Licensed gun of accused recovered--Report of expert allegedly negative--Case being of further inquiry, bail granted.

Malik Nur Muhammad Awan for Petitioners.

Muhammad Arshad Khan for the State.

Date of hearing: 16th March, 1987.

Alam Sher, Riaz Khan, Sardar Khan, Ghulam Qadir Khan, Sher Muhammad Khan and Fateh Khan petitioners have moved this petition for bail in a case registered against them under sections 148 and 302/149, PPC.

2. The FIR version is that on 22nd June, 1986 at about 7 p.m. Tora Khan complainant, his brother Gola Khan deceased, Ata Muhammad and Rab Nawaz were returning home from village Gole-wali. When they reached near dera Gorangiwala, the petitioners suddenly confronted them raising Lalkaras. Alamsher, Riaz and Ghulam Qadir petitioners were armed with guns while Sardar Khan, Sher Muhammad and Fateh Khan petitioners had rifles. All of them fired their weapons at Gola Khan, as a result /of which he died at the spot. They also fired at the complainant and his companions but they took precautions and escaped unhurt. Tora Khan complainant fired at the accused persons with the licensed gun of Gola Khan but none of them was hit. The accused then went away to their dera.

Sher Muhammad, Alamsher and Fateh Khan petitioners are real brothers. Riaz and Sardar Khan petitioners are sons of Alamsher petitoner. The motive alleged in the FIR is that sixteen/ seventeen years prior to the occurrence Falak Sher, brother of Sher Muhammad petitioner, was murdered by Abdullah, brother of Tora Khan complainants and a case was registered, but the matter was patched up. Thereafter, a fight took place between the parties and the compromise came to an end.

3. Learned counsel for the petitioners contends that it was an unwitnessed occurrence and during the investigation the petitioners were found innocent by the local police as well as by an officer of the rank of DSP, therefore, their case needs further inquiry and they are entitled to the concession of bail.

Learned" State counsel has opposed the prayer. He states that a gun was recovered from Alamsher petitioner and all the petitioners have been challaned.

4. I have considered the submission made by the learned counsels for the parties in the light of the material available on the record. According to the final report dated 5th October, 1986, the investigation was conducted by Attiq-ur-Rehman, Inspector/SHO, and Rias, Ahmad, DSP/SDPO, who postponed 0e arrest of the petitioners as no mr."eria1 justifying their arrest was coming forth. Thereafter, the investigation was entrusted to Zafarullah Khan, Inspector, Range Crimes Branch, Sargodha. He came to the conclusion that prima facie the petitioners appeared to be innocent but the prosecution evidence against the could not be thrown away. He recommended that the fate of the petitioners be left to the decision of the Court. In the zimni dated 26th July; 1986, Riaz Ahmad, DSP, stated that Tora Khan complainant had not seen the occurrence and that it had taken place between 9 and 10 p.m. The gun allegedly recovered from Alamsher was his licensed one. Learned counsel for the petitioners states that as per his instructions the report received from firearms expert is in the negative. The learned State counsel is not in a position to controver this submission. In the circumstances, I feel inclined to the view that the case of the petitioners needs further inquiry. I, therefore,admit them to bail in the sum of Rs.50,000 each with two sureties each in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Mianwali.

S.A. /A-101/L l Bail granted.

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