2026 PLP 394 (MLD)

Abdul Fayaz, J.

Khaista Akbar son of Noor Akbar Qoum Sheikhan resident of Nakata, District Orakzai, being charged in case registered vide FIR No 48 dated 12.06.2025 under sections 302, 324, 34, P.P.C of Police Station Mishti Mela (Orakzai), seeks his release on bail after the refusal from the Court of learned Sessions Judge-Orakzai, which was declined to him vide order dated 26.06.2025.

2. Arguments of learned counsel for the parties heard and record perused with their able assistance.

3. The case of prosecution as spelt out from the record is that on the day of occurrence, local Police of PS concerned received information that dead body is lying at DHQ, Hospital. Upon the information local Police rushed to the DHQ, Hospital, where the complainant/respondent No. 2, Sonab Khan son of Abdul Sharif reported the matter to the effect that on the day of occurrence he along with his father namely Abdul Sharif alias Ghafoor Khan (deceased then alive) were present on the place of occurrence. That in the meanwhile, Khaista Akbar son of Noor Akbar (the present accused/petitioner) and Shaheen Akbar sons of Khaista Akbar came there and started firing at the complainant party with the intention to kill them. Resultantly, his father Abdul Sharif alias Ghafoor got hit and succumbed to his injuries at the spot, while, complainant himself dogged the bullets and remained unhurt luckily. After the occurrence, the present accused/petitioner and his son decamped toward Shara Hainga (nearby Forest). Motive behind the occurrence was disclosed as previous blood feud enmity. Complainant is the eye-witnesses of the occurrence being present on the spot at the relevant time.

4. Perusal of record reveals that complainant charged two persons Khaista Akbar (present accused/petitioner) and Shaheen Akbar for the commission of offence as per his version mentioned above.

5. Perusal of record suggests that in the FIR complainant himself admitted that after the occurrence the present accused/petitioner along with co-accused were decamped to nearby Shara Hainga Forest; though, when we perused the site plan/map, it reflects that on North side there are mountains, on West and South there are barren land, while at East side property of complainant. There is no mentioning of "Forest" at all in the site plan. This aspect of the case clearly suggests that the occurrence has not taken place in the mode and manner as described by the prosecution.

6. Moreover, perusal of Medico-legal report reflects that deceased received two firearm injuries at his person; but. it would be determined at the time of trial that whose' shot proved fatal.

7. Apart from this fact the complainant has been shown at point No. 2, while accused/petitioner has been shown at point No. 4 with the distance in between 2 and 4 is 244 paces, so, the identification from such a distance is a question which makes the case of prosecution is of further probe. "K. Krishnamurthi in his book [Police Powers and Duties] has observed, which is as under;- "The time, light and opportunity, that the witness had, the range, distance and view from which the witness saw the accused during the occurrence to see whether the identification was genuine. Dealing with the normal identifying capacity of persons, Dr. Hans Gross in his celebrated work "Criminal investigation" (page 123) states: "Presuming the eyesight to be normal and the light good, one is able in broad day light to recognize;- (a) Persons whom one knows very well at a distance of from 50 to 90 yards; when there particular and very characteristic signs 110 yards; in exceptional cases up to 165 yards. (b) Persons one does not know very well and has not often seen from 28 to 33 yards. (c) People one has seen only once 16 yards.

8. Thus, in the above circumstances sufficient doubt created in the mind of the Court regarding site plan, coupled with the fact that whose shot proved fatal which causes the death of deceased, a case of 'further inquiry' is made out in favour of the petitioner for the purposes of grant of bail.

9. It is settled law that deeper appreciation of the material on record is not permissible at this stage. Because it would prejudice either the case of prosecution or the accused. However, from the tentative assessment of the record it reveals that the case of the petitioner comes within the purview of section 497(2) Criminal Procedure Code. It is settled that whenever reasonable doubt arise with regard to participation of an accused person in the crime or about the truth/probability of prosecution case and the evidence proposed to be produced in support of charge, accused should not be deprived of benefit of doubt. Accused in such a situation, to be kept on bail, than in jail allowing trial.

10. Thus in the light what has been discussed above, instant bail application is allowed provided he furnishes bail bonds to the tune of Rs. 2,00,000/- with two sureties each in the like amount to the satisfaction of the learned Illaqa/Duty Magistrate, who shall ensure that the sureties are local, reliable and men of means.

11. Above were the reasons of short order of even date. JK/219/P ????