Asif alias Asif ullah Vs Saad Ullah Jan etc

IN THE PESHA WAR ifiGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc:BA No.27-B/2025

Asif alias Asif Ullah

V.

Saad Ullah Jan, etc.

ORDER

Date of hearing: 14.02.2025

For petitioner(s): Mr. Humayun Wazir Advocate

For respondent(s): Mr. Masood Adnan Advocate

For State: Mr. Nalib Ullah,

A.A.G.

AURANGZEB, J.- The petitioner / accused Asif alias Asif Ullah seeks post-arrest bail in case FIR No.230, dated 04.07.2018, registered under sections 302 / 34 PPC at Tajori Police Station in Lakki Marwat.

2.Briefly stated, the facts of the case are that on 04.07.2018 at 10:00 hours, the respondent / complainant Saad Ullah Jan, shifted his brother Bismillah Jan, in injured condition, to RHC Tajori, where a report was lodged to the effect that on that fateful day, he, along with his brother and Bismillah Jan Tari Khel, was present at their saw machine, situated at their village. At about 09:20 hours, the accused Ashfaq Ullah and Asif Ullah, armed with Kalashnikovs, arrived and started altercation with Bismillah Jan Tari Khel over a money transaction. Meanwhile, the complainant's brother Bismillah Jan (Ghafoor Zaman) (SB.) Hon'ble Mr. Justice Aurangzeb

intervened, where the accused lost their temper and - start firing at him with their respective Kalashnikovs, intending to cause his qatl-i-amd. As a result, Bismillah Jan was hit and seriously injured. After the incident, the accused fled away from the spot. The occurrence is stated to have been witnessed by the complainant.

Initially, the FIR was registered under sections 324 / 34 PPC. However, the injured subsequently breathed his last while under treatment in Peshawar, and as such, the ibid section of law was substituted with section 302 PPC, as is evinced from the police memo, dated 08.07.2018.

Arguments heard and record perused.

No doubt, the petitioner I accused has been directly charged, along with co-accused, for a daylight occurrence. However, the fact remains that as per the medical evidence, the deceased received a single firearm entry wound for which two persons have been charged with a generalized role. Whether the shot allegedly fired by the petitioner / accused proved effective or that of the co-accused emerges as a significant question to be thrashed out at the trial. Reliance is placed on Mukaram v. The State and another (2020 SCMR 956), wherein the Supreme Court ruled:

There is no denial to this fact that four persons are involved in this case with allegations of causing indiscriminate firing. The deceased sustained only one injury on his person which proved fatal, such allegation in generalized in nature and no one can be saddled with responsibility of causing injury to the deceased.

It is imperative to note that the case of Raees K/ian v. State (2017 YLRN 56 Peshawar) involved (Ghafoor Zarnan) (SB.) Hon'ble Mr. Justice Aurangzeb

somewhat similar facts and circumstances, where four persons were charged with a generalized role for causing a single firearm entry wound to the deceased. The question as to whose shot proved fatal was considered one calling for further inquiry and, therefore, the accused was released on bail. Similarly, in the case of Zubair and another v. The State and another (2017 PCrLJ Note 164 Peshawar), it was observed:

4.The role attributed to the petitioners is that of firing at deceased Ghazi Mat Khan and complainant, along with co-accused Zahir Khan and Afzal. The effective shots on the person of the deceased have not been specifically attributed to the present petitioners. In this view of the matter, it is yet to be determined that whose fire shots, out of the four accused, proved fatal as well as sharing of common intention of rest of the accused with the accused of the effective shot.

Furthermore, as per the version reported by the respondent / complainant, the occurrence took place while the accused and Bismillah Jan Tari Khel were engaged in oral altercation over the alleged money transaction, yet the site plan is completely silent as regards the place where Bismillah Jan Tari Khel was present at that time.

In addition, it is alleged that the deceased was simultaneously fired at by two persons with Kalashnikovs from a distance of around 10 to 14 feet. If this were indeed the case, the consequences would have been far more drastic. Nevertheless, as noted above, the deceased still sustained a single firearm entry wound. A somewhat similar issue, when cropped up in the case of Awal Khan and 07 others v. The State through AG-KPK and another (2017 (Ghafoor Zaman) (SB.) Hon'ble Mr. Justice Aurangzeb

SCMR 538), was dealt with by the Supreme Court in the following manner:

7.The number of injuries on the person of the deceased and the two injured further suggest that the noose has been thrown much wider by the complainant, charging two real brothers and their sons and an unknown accused. Kalashnikov rifle is a very formidable weapon of the day. In case if nine persons had participated in the crime, none would have escaped alive including the complainant in particular. The injuries caused with such rifles would be of size of 1/4" x 1/4" on human body because of the size of bullet of the said rifle but here, we are confronted with a different situation, otherwise too, Kalashnikov rifle is fully automatic rifle and if nine rifles were at all used indiscriminately that would have caused considerable number of injuries to the victims including the deceased and the complainant's unhurt escape was impossible. Thus the medical evidence apparently contradicts the ocular account and when no male member from the same family has been spared because all of them have been enroped, which fact is not getting support/confirmation from the medical evidence rather it is in conflict with the same and because the recovery of the two .12 bore empties would further strengthen the view that the two injured have sustained short gun injuries with pallets and not with bullets.

Yes, the petitioner / accused remained absconder for a noticeable period. However, it is now well settled that when an accused is otherwise entitled to bail, mere abscondence, not being conclusive proof of guilt, would not suffice to obstruct the way of his bail. Reliance is placed on Hidayat Khan v. State (2023 SCMR 172). Reference may also be made to Abdul Karirn v. State (2022 PCr.LJ 1570 Quetta) and Abdul Basit v. State (2021 PCr.LJ 348 Peshawar).

Considering the afore-noted facts and circumstances coupled with the ratio decidendi in the (Ghafoor Zaman) (SB.) Hon'ble Mr. Justice Aurangzeb

judgments (supra), I am inclined to hold that sufficient grounds do exist which make the instant case one of further probe within the meaning of sub- section (2) of section 497 Cr.P.C. Consequently, I would allow this petition and admit the petitioner / accused to bail, provided he furnishes bail bonds of Rs.2,00,000/- (Rupees Two Hundred Thousand) with two sureties to the satisfaction of the concerned Judicial Magistrate / MOD, who shall ensure that the sureties are local, reliable, and men of means.

11.The foregoing are the reasons for my short order of even date.

Announced 14.02.2025 2-fl

JUD'E

(Ghafoor Zaman) (SB.) Hon'ble Mr. Justice Aurangzeb