2024 PLP 180 (MLD)

FAZAL SUBHAN, J.

Instant is a bail application of petitioner Afrasiab Khan, charged and arrested in connection with case FIR No.261 dated 17.04.2023 under sections 302/324/34, P.P.C. of Police Station Saddar, District Bannu.

2. Brief facts of the case are that on 17.04.2023 at 01:00 hours (midnight), complainant Hashmat Ullah son of Aziz Ullah at Emergency Ward of Civil Hospital, Rannu reported to the effect that on the night of occurrence, he along with his nephew Afrasiab Khan were proceeding on motorcycle to village Kotka Khan Sherin, and when they reached to the unmetalled path, leading towards the graveyard of village Shahbaz Azmat Khel, they spotted accused Wasif Ullah and Zubair in headlights of motorcycle, duly armed with Kalashnikovs, who, on seeing the complainant party, immediately started firing at them in order to commit their Qatl-i-Amd, as a result, both of them were hit and fell from the motorcycle, whereafter the accused decamped from the spot. Motive for the occurrence is stated to be previous blood feud between the parties. The locals shifted the complainant and his nephew, in injured condition, to the hospital. The complainant, therefore, charged the present petitioner Wasif Ullah and co-accused Zubair for effective firing upon them with intention to cause their death.

3. On the same day, one Naeem-ur-Rehman while present with the dead body of his brother Amin-ur-Rehman at DHQ Hospital, reported that he was present in his house, when received information that the dead body of his brother Amin-ur-Rehman is lying in the DHQ Hospital, hence, on his arrival, he found the dead body of his brother. On inquiry, he came to know that his brother left the house for Nimaz-e-Tarawih, but was done to death by unknown persons through firearms. Similarly, on the same day, a third report was made by Misal Khan son of Khan Afzal at DHQ Hospital in the presence of dead body of his maternal uncle Hamayun Khan and reported that he was present in his house, when received information that the dead body of his maternal uncle is lying in DHQ Hospital, hence, he visited the hospital and came to know that his deceased maternal uncle had left his house for Isha prayer and was murdered by some unknown accused through firearms. The statements of Naeem-ur-Rehman and Misal Khan were thereafter recorded under section 164, Cr.P.C. on 04.05.2023, wherein they have charged the complainant Hashmat Ullah and his nephew Afrasiab Khan (present petitioner) for the murder of Amin-ur-Rehman and Hamayun Khan.

4. With this background of the case, arguments of learned counsel for the petitioner and that of Assistant Advocate General duly assisted by learned counsel for the complainant heard in detail and record gone through.

5. On thorough analysis of the record, it is clear that the occurrence has taken place at midnight i.e. 01:00 hours on 17.04.2023 and initially, nobody was directly charged by the complainants Naeem-ur- Rehman and Misal Khan for the deaths of the deceased Amin-ur-Rchman and Hamayun Khan. In their statements under section 164, Cr.P.C, the complainants nominated the accused-petitioner Afrasiab Khan along with co-accused Hashmat Ullah for the deaths of the deceased, however, none of them has disclosed the source on the basis of which they got satisfied about the complicity of the accused in the commission of offence. There is yet a delay of about 16 days in recording the statements under section 164, Cr.P.C, which has not been plausibly explained. The evidentiary value of such statements would be determined during trial and no explicit reliance could be placed on such statements at the bail stage. Moreover, the occurrence is unseen one and so far, no witness having seen the accused while committing the alleged offence has come forward before the investigating officer to depose regarding their involvement in the deaths of the deceased.

6. Moreover, the accused-petitioner is allegedly injured in the occurrence and in that respect, a report lodged by his co-injured/complainant Hashmat Ullah is worth perusal. After the accused-petitioner along with his co-accused were nominated in this case, the Investigating Officer prepared two other site plans in addition to the site plan already prepared at the instance and pointation of Afrasiab Khan (injured in the case lodged by complainant Hashmat Ullah), which shows that blood was recovered from point "C" (the point of deceased Amin-ur-Rehman) and point "I)" (the point of deceased Hamayun Khan). Thus, from the record it is evident that three different reports in respect of the same alleged occurrence have been lodged and, therefore, it is yet to be proved during trial that which one amongst the three versions is correct and proved through convincing and reliable evidence, hence, the above facts arc sufficient to make the case of petitioner one of further inquiry into his guilt.

7. In view of the above, this petition is accepted and the petitioner is released on bail provided he furnishes surety bonds to the tune of Rs.5,00,000/- (rupees live hundred thousand) with two local and reliable sureties to the satisfaction of Illaqa Judicial Magistrate/MOD.

8. The above are the reasons for my short order of even date. MQ/200/P Bail allowed.