Rahmat Ullah Vs The State etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COI]RT, BANNU

BENCH

(Judicial Deparfinent) Cr: Misc: BA No. 86-B / 2025

Rahmat Ullah.

Versus The State etc.

TUDGMENT

Date of hearing: 21.03.2025.

For petitioner: I\4/S. Farooq Khan Sokari & Farhanullah Garan, advocates.

For State: Mr.MuhammadAsghar Khan Ahmadzai, Addl:A.G.

For complainant: I\{/S. Muhammad Ashraf Khan Marwat, Younas Khan Khattak and Muhammad Rashid Khan Dirma Khel, advocates.

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ABDUL FAYAZ, J By mean of instant petition, the petitioner Rahmat Ullah seeks post-arest bail in case FIR No. 949 dated2l.10.2024, registered under Section- t/ 3021324 PPC, PS, Naurang, District Lakki Marwat, d lodged on the report of Muhammad Afrran s/o lmtiaz Khan r/o Nali Chak, Tehsil Naurang District, Lakki Marwat. This single order would also dispose of this and the connected B.C.A No. 11-8/2025 lMuhammad Ismail Khan v. Muhammad Afnan etcJ, as both the petitions arises out of one and the same incident.

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2.Muhammad Afrran on 21.10.2024 at

about 10:50 hours reported the matter to police to the effect that on the eventful day, he along with his brother Luqman were standing in front of their house, meanwhile, at 09:50 hours, petitioner emerged from Naurang side in a motorcar, stopped the vehicle, deboarded from the same and forthwith started firing with his pistol at the complainant party with intent to kill. Resultantly, Luqman got hit, injured and fell down though complainant remained unhurt luckily. One other passerby Bakht Muhammad allegedly died from the firing of accused. An altercation on the day of incident in Naurang Bazar between the complainant and petitioner was disclosed as motive for the offence. Accused fled away from the crime scene while leaving his motorcar' The occurrence was witlessed by the injured Luqman' Thus, the accused was booked in the ibid FIR'

3.Through Naqal Mad No. 22 of the same date Muhammad Afiran complainant of the instant case and his companion rnjured Luqman were also charged for ineffective firing upon one Muhammad Ismail Khan Vo Haji Gul Zareenwhereas a passersby Bakht Muhammad also got hit and ,njrr.ed for which the complainant party has been charged.

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4.Accused/petitioner Rahmat Ullah approached the leamed hial Court, seeking his release on bail, but failed to get the same, while in the case vide Naqal MadNo-22 of the even date, Muhammad Afrran (complainant in this case) were allowed ad-interim pre-arrest which was later on confirmed via order dated 13.12.2024, hence, both the parties approached this Court through the subject applications.

5.Arguments of leamed counsel for the parties as well as of leamed AAG for the State heard and record gone through. It is to be mentioned here that on l4.O3.2[25,the parents of deceased Bakht Muhammad I appeared before the court and they submitted affidavits separately to have got no objection over the release on bail of the petitioner Rehmatullah.

6.On perusal of record, it surfaped that in the instant FIR from the firing ofaccused charged, one lost his life, whereas, another person got severely injured and the matter was reported to the local police' The Investigating Officer visited the spot and during spot inspection, *Kathrd' and blood-stains with recovered blood-stained

cotton from the place of incident along with empties' The record further reveals that in FIR No' 949, petitioner Rahmat Ullah has been charged for making firing at the

complainant party, which proved effective to the extent of Luqman and passerby Bakht Muhammad (deceased) and ineffective to the extent of complainant Muhammad Afiran. In the instant case, single accused, i.e, the petitioner Ratrmat Ullah is charged for launching murderous assault by firing at the complainant party' The recovered six crime empties of 9 mm bore from the place of petitioner, when sent to F.S.L, it has been opined in the report of the expert that "Microscopic examination of the case has revealed that the six crime ,J empties are of 9 mm bore and were ftred from dilferent ,f g mm bore weapons." Accused was singularly and directly charged in the FIR for making effective firing at complainant party due to which one Luqman and Bakht Muhammad sustained injuries. According to Fire Arms Expert report said empties were fired from different weapons which certainly raised a question as to whether the act was done by one person or more. This factor alone takes the matter to one of funher probe. Reliance in this respect is placed on "Eid Badshah v. The State and another" p0l8 P.Cr.L.J 841, wherein it was held: u6. It appears from the record that the petitioner is singulorly and /lrectly charged in 'the FIR for making ffictive firing at complainant party due to which Aqib Nattaz' the nephew of complainant sustained iniuries' Duriig the- couise of investigation' t!: investigattng fficer recovered nine (09)

empties of 7.62 bore from the place of occurrence which were sent to the FSL and according to Fire Arms Expert report these empties were /ired from dffirent 7.62 bore weapons which certainly raises a question as to whether the unfortunate act is the doing of one person or more. This factor alone takcs the matter to one offurther probe. The MLC report of the victim suggests that he sustained wound on the back side of chest and in this way the MLC report also does not support the case of prosecution."

7.Similarly, in another dictum of the apex court "sikandar Hayat v. The State and another" 12022 SCMR f gSI it has been held:

" As per the contents of the crime report, the allegation levelled against the petitioner is that he ilong with four co-accused while armed with firearms has launched an attack on the ,o*ploinont party and due to fire shots made by them two persons hwe been done to death' However, we hsve noted that only a general role of Jiring has been ascribed to the petitioner and no details have been given as to what kind of weopon the petitioner had used and onwhic:h parts of ttu body of the deceased, the alleged fire shots made by him landed' lhe have ilso noted that from the place of occurrence, 27 empties were takpn into possession, which according to the report of -the FSL were found to be fired from one and the same weapon. In this view of the matter' when the roli asuibed to the petitioner is of general nature and according to the report of "fSt onlY one weaPon was used in the commission of the time, it is the Trial Court who after reiording of evidence would decide about the guilt or othervvise of the petitioner and until ihen the petitioner cannot be kept behind the bars for an indefinite period' Keeping in view alt the facts and circumstances, the cose of the petitioner squarely folls within the purview of section lbZ|Z1,- Cr.P.C. entttling for further inquiry into his guilt.t'

8.On the other hand, in Naqal Mad No' 22' Muhammad Afrran (complainant in the instant case) has

been attributed charge for making firing which proved in effective in case of petitioner while remained effective in case of Baktrt Muhammad (deceased) who sustained injury on his head. In the above Naqal MadNo. 22, the complainant of the instant case is a nominated accused whose ad-interim pre-arrest bail has been confirmed by the leamed trial court. Now it is well settled that in cases of counter versions arising from the same incident, one given by the complainant in the F.I.R and the other given by the opposite party, bail is granted as a rule on the ground of further inquiry for the reason that the question as to which version is corrert to be decided after recording of pro and contra evidence during the trial and also to ascertain which party was the aggressor or was aggressed upon and refusal of bail in such cases rs an

g. Now, tuming to the contention vehemently argued by the learned counsel for the complainant that t}te case of the petitioner, even if considered as a cross case, it would fall within the exception to the rule of grant of bail as of right, as the petitioner has been directly charged for the effective fire, which resulted in the death of the deceased Bakht Muhammad and causing injuries to Luqman. The contention is very forceful' However, it

is noted that the main accused (complainant of instant case), who has been charged for fire arm injury in Naqal Mad No. 22 has been granted bail in the said case and, thus, denying the same to the present petitioner, would not be legally appropriate. Hence, this Court is of the view that the petitioner would not fall within the cases of exception to the rule of grant of bail in cross cases.

Almost the place, time of incident and parties in the FIR as well in Naqal Mad No. 22, are similar and the two cases squarely fall in the definition of cross cases.

Reliance is placed on "(fsman V Mushtaq Ahmad and another" reported as PLD 2014 Peshawar 108, wherein it was held:-

"8. As far as, folsivrty of the counter version is concerned, rt is noted that there are fire arm iniuries on both sides, cannot hence, tentatively ossessed the counter version be considered a mere fabrication to seek any / advantage. Hence, the petitioner case crosses the initial threshold of bringing the case within the purview of a cross case and thereby to be entitled to be considered for grant of the concession of bail, as ofright."

10.Similarly, in the case of "shoaib Mehmood Butt Vs. Iftikhar-ul-Haq and 3 others" reported as [1996 SCMR 1845], it was held that-

"In case of counter-versions arising from the same tncident, one given by complainant in F.I.R and the other given by the opposite'party case-law is almost settled that such coses are covered for grant of bail on the ground of further enquiry as contemplated under section Ci.f.C. In such cases normally, bail is gronid on the ground of further enquiry for

v the reason that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a Jinal conclusion in this regard. In cases ofcounter- versions, normally, plea of private defence is talren gring rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmod (1990 SCMR j91) in cross-cases the High Court granted bail to the accused on the ground that there was probability of counter' version being true as sorne of the occused had received injuries including a grievous iniury on the head of one accused. It was held by this Court that in such circunstances the High Court was right in granting bail and no interference wos warranted, In the satne context, reference can be made to the case of Mst. ShaJiqan v. Hashim Ali and others (1972 scMR682)."

11.So far as the case of respondent Muhammad Afrran in the connected BCA is concerned, the record tells that the respondent and his co-accused Luqman are ry atlegedly charged for ineffective firing upon Muhammad v Ismail complainant of Daily Diary No.22 of the even date and the single rnjury so caused to Bakttt Muhammad. Surprisingly, general role of firing with two weapons has been attributed to the accused, as such in view the number of injuries caused and the number of accused charged the two does not commensurate with each other, more particularly when no crime empty has been collected from the spot by the investigating officer, thus, the respondent/accused remained successful in making out his case one of further inquiry for the pu{pose of the desired concession. The impugned order

was read thoroughly where the leamed Judge has beautifully dealt with the material aspect of the case and that his approach is in accordance with law. There is no cavil with the proposition that once the Court of competent jurisdiction releases an accused on bail then extra ordinary circumstances are needed to recall the same, which are missing in the bail cancellation application.

12.In this particular case too, tlte fact as to who was aggressor and who has been aggressed upon, cannot be determined at this stage. The case against accused/ petitioner is, therefore, that of further inquiry, entitling the petitioner to the grant of bail. Resultanfly, the bail petition is allowed, resultantly, accused/petitioner Rahmat Ullah is admitted to post arrest bail on fumishing bail bonds in the sum of Rs. 200,000/- (trvo lacs)fach with ttro sureties (men of mear; local and reliable) each in the like amount to the satisfaction of Judicial MagistratefivloD.

However, the connected B.C.A No. l1'B/2025 [Mahammad Ismail Khan v. Muhammad Afnan etcJ is dismissed.

13.These are the detailed reasons for short order scajNEo ofeven date.

25lt{A atr Anno ced.

21.0i.2025. / r *lmranultah PS* JUDGE -Sd- Judge

y6 5 Sd/ Mr. Justice Abdul Fayaz,J