Law:

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MUHAMMAD SAFDAR KHAN SIKANDRI, J.---The accused-petitioner Azal Shah was refused bail by the lower fora vide orders, dated 9-10-2009 and 15-10-2009 respectively in case F.I.R. No. 307, dated 5-9-2009 registered under sections 302/324/34, P.P.C. at Police Station Tajori, District Lakki Marwat and now he has filed the instant application praying for his release on bail.   The accused-petitioner including his two other accomplices namely Sher Ajam and Gul Zaman were, charged by complainant Sher Nawaz for the murder of his brother Jumaraz. The occurrence described by the complainant is to the effect that on the eventful night he along with his brothers Saeed Nawaz and Jumaraz were asleep in the courtyard of their Baithak while the bulb was lit. It was about 2-45 a.m. (night) when the complainant and his brothers became vigilant on the footfall voice of the accused. The accused fired at the deceased and P.Ws. with their Kalashnikovs with which Jumaraz was hit and expired there and then. The motive for the offence as alleged by the complainant is previous blood feud.   Learned counsel for the petitioner contended that the occurrence has taken place at night and the P.Ws. have not identified the accused-petitioners because they were asleep under the enclosure of their Baitahk surrounded by four walls. He further contended that three accused including the petitioner have been charged for firing at the deceased and the P.Ws. but the deceased has received only one injury and that too not certain that with whose fire-shot the deceased was hit and this fact will require further probe after recording evidence. He further argued that the sharing of common intention by the petitioner with his other accomplices will be ascertained when evidence is record in the trial Court and that the accused-petitioner is entitled to bail as the prosecution has not prima facie connected the accused-petitioner with the guilt. He further contended that the Investigating Officer has not recovered the five empties of 7.62 bore. from the spot but the same were produced by the complainant which will make the recovery doubtful as the same can easily be manipulated and the complainant has…