YAQOOB KHAN Versus THE STATE
This is a bail application under section 497/498, Cr.P.C. for grant of bail to Yaqub Khan and 4 others who are charged in a case under sections 302/148/149, P.P.C. in case F.I.R. No.56 dated 7‑7‑1984 of Police Station Kakki. The 5 accused/petitioners had earlier moved bail application in the Court of Mr. Muhammad Rafique Khattak M.I. C., Bannu who vide his order dated 4‑8‑1984 granted bail to accused/petitioners Yaqub Khan, Shaista Khan and Ismail khan while rejected the bail petition of Misal Khan and Rashid Khan. Misal Khan and Rashid Khan accordingly moved bail application in the Court of Sessions Judge, Bannu and the complainant party moved bail cancellation application in the said Court against the release on bail of Yaqub Khan, Shaista Khan and. Ismail Khan. The learned Sessions Judge vide separate orders dated 2‑9‑1984 accepted the bail cancellation application and cancelled the bail granted to Yaqub Khan, Shaista Khan and Ismail Khan while he rejected the bail application of Misal Khan and Rashid Khan. Feeling aggrieved by the said order of the learned Sessions Judge all the 5 accused/petitioners have approached this Court praying for their release on bail.
2. Facts relevant for the disposal of this bail petition are that at 2000 hours on 7‑7‑198‑1 Amir Payou lodged a report in Police Static Kakki to the effect that that day at 'Digar Waila' he alongwith his wit were working in their fields when suddenly Shaista Khan armed wit 'Danda' Yaqub Khan armed with S.B shotgun, Misal Khan armed with 'Loor' Ismail Khan armed with a 'Danda' and Rashid Khan armed wit an axe came near him and started belabouring him with their respectiv weapons while Yaqub Khan who was standing armed with 'Topak' aske his companions to kill the complainant. The complainant received injuries and fell to the ground and the accused /petitioners decamped from the spot. The occurrence was alleged to have been witnessed by the wif of the complainant. The motive for the offence was a dispute over landed property. After recording the report the local police despatches injured Amir Payou Khan to Civil Hospital, Bannu where he succumbed to the injuries at 2400 hours. Accordingly the section of law which was firstly registered under sections 326/148/149, P.P.C. was changed t one under section 302/148/149, P.P.C.
3. Arguments of the learned counsel for the petitioners and the learned A.A.‑G. for the State have been heard. Record of the case has also been examined.
4. In this case accused/ petitioners Yaqub Khan is attributed the role of having directed his co‑accused /petitioners to kill the deceased. Shaista Khan and Ismail Khan accused/ petitioners are attributed the role of having given 'Danda' blows to the deceased. The Medical Officer has categorically given his firm opinion about the cause of death of the deceased. In his opinion the deceased died due to 'Cereberal Concussion'. It is clear that the deceased received two incised wounds on occipital bone besides other incised and contused wounds. Since the Doctor has given his definite opinion about the cause of death and only Misal Khan and Rashid Khan accused/ petitioners, having been charged to be armed with 'Loor' (sickle) and axe the natural presumption at the present stage is that these two accused /petitioners are responsible for causing death of the deceased. In Muhammad Nazir v. The State 1984 C M R 206 it was held that:‑
"In the F. I. R. the co‑accused of the petitioners have been charged for dealing blows to the deceased on his head and the medical evidence shows that the deceased died of the head injuries, and as such the petitioner cannot be held responsible for causing the fatal injuries to the deceased; that the other co‑accused Sultan has been admitted to bail by the learned High Court vide order dated 20‑12‑1982. Notice was issued to the Advocate‑General vide order dated 27‑4‑1983. We admit the petitioner to bail in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of A. C /Duty Magistrate, Mailsi.
In view of the aforesaid circumstances that only Rashid Khan and Misal Khan accused/petitioners are charged to be armed with sharp‑edged weapons the deceased having died of the incised wounds caused to him on his head, coupled with the observations contained in the above -quoted authority, I feel that the case of accused /petitioners Yaqub Khan, Shaista Khan and Isamail is arguable for the purposes of bail. Accordingly I direct their release provided, they furnish bail bonds in sum of Rs.30,000 with two sureties each in the like amount each to the satisfaction of the Illaqa Magistrate. The bail petition of Rashid khan and Misal Khan however stands dismissed.
M. A. K. Order accordingly