Saadullah Khan Vs The State etc

ruDGMENT ST{EET

IN THE PESIIAWAR HIGH COURT, BATINU BENCH

(Judicial Department) CcMisc: BANo. 73-B 12026

Saadullah Khan.

Versus The State etc.

JUDGMENT

Date of hearing: 16.03.2025.

For petitioner: Mr. Hujatulalh Khan Marwat, advocate. (Via Video Link).

For State: Mr. Najibullah Khan MarwtKhan Asstt:A.G.

For complainant: Mr. Masood Adnan, advocate. ****rlt'|.**

SABIT KHAN.J

l. Through the instant petition, the petitioner Saadullah Khan s/o Sikandar Khan seeks post-arrest bail in Mad No.20 dated 06.01.2026 under sections 3021324134 PPC, in FIR No.06 dated 06.01.2026 under sections 302, 324, 427, 34 PPC read with section 5 of the Explosive Substances Act at Police Station Gambila, District Lakki Marwat.

2.Brief facts of the case are that Sattar Khan complainant, d while present in the Emergency Ward of DHQ Hospital, Lakki Marwat on 06.01.2026 at about 18:50 hours, reported the occurrence to the local police stating that earlier on the same day at about 17:20 hours, he along with his son Kashif Khan (deceased) were proceeding on a motorcycle towards their destination, the motorcycle being driven by the complainant

himself. Upon reaching the place of occurrence, a motorcax bearing registration No. 156, which after crossing them, stopped at some distance ahead. It is alleged that the present petitioner Saadullah Khan and co-accused Sikandar, both armed with Kalashnikovs, alighted from the said vehicle, while two to three other persons also from inside the car, allegedly launched an indiscriminate firing upon the complainant party with the common intention to commit their murder. As a consequence of the said firing, Kashif Khan, son of the complainant, sustained firearm injury and fell down on the spot, whereas the complainant luckily remained unhurt by taking cover near the roadside. The injured Kashif Khan succumbed to his injuries at the spot. The occwrence is stated to have been motivated by previous blood feud between the parties.

3.It is further noteworthy that on the same date, i'e, 06.01.2026 at about l8:15 hours, the present petitioner Saadullah Khan (petitioner), in injured condition, while accompanying the dead body of his brother Mehmood Khan, also reported the matter to the police in the Emergency Ward of DHQ Hospital, Lakki ( Marwat. According to his version, on the fateful day he along with his father Sikandar Khan, his brother Mehmood Khan, driver Saadullah son of unknown person, and their relative Fidaullah' after securing bail and being released from jail, were proceeding in a motorcar driven by Saadullah. It was stated that Mehmood Khan was seated on the front seat of the vehicle while the

complainant, his father and Fidaullah were seated on the rear seat.

When they reached the place of occurrence at about 17:20 hours, a black-coloured motorcar, after crossing their vehicle, stopped at some distance ahead, from which Multan, Mujahid, Aamir Sohail and Shah Alam, all allegedly armed with Kalashnikovs, alighted and started indiscriminate firing upon the complainant party. It was further alleged that during the occurrence Shatr Alam also hurled a hand grenade, as a result firing whereof Mehmood Khan, brother of the complainant sustained fatal injuries and died at the spot, while the complainant himself also received injuries, whereas, the remaining companions luckily escaped unhurt. The occrrtrence was athibuted to previous blood feud between the parties as the underlying motive. The aforesaid version of the petitioner/complainant was reduced into writing through a murasila, followed by registration of the aforementioned FIR.

4.The petitioner/accused, after his arrest in the instant case, approached the leamed trial Court seeking the concession ofpost- arrest bail; however, the said request was declined by the learned ( Additional Sessions Judge-II, Lakki Marwat vide order dated O4.O2.2O26.Fee1ing aggrieved of the said order, the petitioner has invoked the jurisdiction of this Court through the instant bail application under section 497 Cr.P.C.

5.Learned counsel for the petitioner contended that the petitioner is innocent and has been falsely implicated in the present case owing to previous enmity between the parties' It is

argued that the occurrence in question has admittedly given rise to cross versions, as both sides have attributed the role of aggression to each other and both parties have suffered casualties during the same occuffence. Learned counsel further submitted that although as many as five persons have been nominated in the occurence, yet the deceased sustained only a single firearm injury, which circumstance prima facie casts doubt upon the prosecution story regarding indiscriminate firing by multiple accused persons. It was also argued that the Forensic Science Laboratory report reflects that eighteen crime empties of 7.62 bore recovered from different places of the accused persons were fired from one and the same weapon, which prima facie undermines the allegation that several accused persons were independently firing with different weapons. Learned counsel, therefore, contended that the case of the petitioner squarely falls within the ambit of further inquiry as envisaged under section 497(2) Cr.P.C. entitling him to the concession of bail.

6.Conversely, learned Assistant Advocate General for the State, assisted by leamed counsel for the complainant, vehemently opposed the grant of bail to the petitioner and contended that the petitioner has been specifically nominated in the FIR with the allegation of having participated in the firing which resulted in the death of Kashif Khan. It was submitted that the offence involved is heinous in nature and squarely falls within the prohibitory clause of section 497 Cr.P.C, therefore the

petitioner does not deserve the extraordinary concession of bail at this stage.

7.I have heard the learned counsel for the parties at considerable length and have also gone tlrough the available record with their able assistance.

8.A tentative assessment of the material available on record reveals that the occurrence in question has admittedly resulted in cross cases between the rival factions, wherein both sides attribute the role ofaggression to each other and both parties have suffered casualties. In such like circumstances, the determination of the actual aggressor ordinarily requires deeper appreciation of evidence, which can only be undertaken during the course oftrial.

9.Another significant aspect of the case which cannot be overlooked at this stage is that although as many as five persons have been implicated in the occurrence, the deceased is reported to have sustained only a single firearm injury. The FIR attributes merely a general and collective allegation of firing against the accused persons without speciffing as to whose particular shot actually struck the deceased. This circumstance, when viewed in juxtaposition with the medical evidence showing a solitary firearm injury, prima facie creates doubt regarding the exact role and individual participation ofeach accused, including the present petitioner. In such a situation, the question as to which of the accused actually caused the fatal injury becomes a matter requiring deeper appreciation of evidence and cannot be

conclusively determined at this stage. This aspect lends support to the contention ofthe defence that the case ofthe petitioner calls for further inquiry within the meaning of section 497Q) Cr.P.C.

In this regard, reliance may advantageously be placed on the case of "Asmatullah v. The State and others" (PLD 2011 SC 178), wherein the Honourable Supreme Court of Pakistan observed that:-

" 4. A perusal of lhe F.IR shotts that only a generul and collective allegation had been lewlled against respondenl No. 2 and his two co-accused rugarding Jiring al Tasleem Khan deceased and no specific injury had been altribuled to rcspondent No.2, AMtedly no weapon had been rucovered from the possession of rcspondent No. 2 durtng lhe investigation of this case. The Post-mo em Examination Reporl in rcspect of the deceased shots that the deceased had received only one fre-shol and thal solilary fire-shol slands atfiibuled by the proseculion lo lhrce accused persons including respondent No.2, Il is, lhus, not clear at this stage as to whethet any injury had been "caased by lhe said respondent to the deceased ot nol.- tt

10.Furthermore, the forensic evidence brought on record indicates that eighteen crime empties of 7.62bore recovered from different places of the accused were opined by the Forensic Science Laboratory to have been fired from one and the same weapon. At this stage, such opinion prima facie introduces an ( element of doubt in the prosecution version regarding participation of multiple shooters and, therefore, calls for cautious evaluation of evidence at the stage of trial. Further support for the above view may also be drawn from the case of Sikandar.

Havat v. The State (2022 SCMR 198), wherein the Honourable Supreme Court of Pakistan observed as follows:

'As pet the contents of lhe crimz rcporl, the allegolion levelled againsl lhe petitionet is that he along with four co-accused while armed wilh Jhearms has launched an altack on lhe complainanl parly and due a fire shots ,rrade b! them t$'o penons have been done lo dealh. However, we have noted thal only a generul ruk of firing has been ascribed to the pelitioner and no details have been given as to tehal kind oJ weapon the petitioner had used and on which pa s oJ the body of the deceased, the alleged fire shols made by him landed We ha,e also noted that from the place of occuttence, 27 empties were laken into possessian, which according to the rcpor, of the FSL were foand lo be fired from one and the same $,eapon. In this viz$' of lhe mdte4 when the role ascribed lo the petitioner is of generol nature and according to the report of FSL only one weapon was used in lhe commission of the crime, it is the Trial Courl who after recording of evidence would decide about the guilt or olherwise of the petilianet and until then the petitioner cannot be kept behind the bars lor an indefinite pefiod- Keeping in view all the lacls and chcumstances, lhe case of the petitioner squarely falls wilhin the puniew of sectian 497(2), Cr.P.C. errtitling Iot further inquiry into his guilt."

11.It is also significant that the occurrence resulted in only one deceased, while several accused persons have been nominated with general allegations of firing, without clearly specirying the individual role attributed to each of them. In such circumstances, the case of the petitioner, at least tentatively, appears to fall within the ambit of further inquiry as contemplated under section 497 Q) Cr.P.C.

12.Now adverting to the contention strenuously advanced by the leamed cormsel for the complainant that even if the occufience is treated as a case of cross versions, the petitioner would fall within the exception to the rule governing grant of bail in such matters on the ground that he has been attributed the role of effective firing which allegedly resulted in the death of the deceased. Though the argument hasi been pressed with

considerable emphasis, a tentative appraisal ofthe record does not lend sufficient support to such contention at this stage. The material available on record reveals that the occurrence has admittedly given rise to two rival versions arising out of the same tansaction. In the present case, the prosecution alleges that the petitioner and his co-accused opened flrre upon the complainant party, resulting in the death of Kashif Khan, son of the complainant. Conversely, in the connected Naqal Mad relating to the very sarne occurrence, it has been reported that the petitioner himself sustained firearm injuries while his brother Mehmood KIan received fatal injuries and died at the spot. Thus, the occrrrrence resulted in casualties on both sides, each party attributing the role of aggression to the other. The time, place of occuffence and the parties involved in both versions are substantially identical, thereby prima facie bringing the matter within the well-recognized category of cross cases arising out of a single occurrence. In such circumstances, the determination as to which party was the aggressor and which version represents the true account of the incident necessarily requires deeper { appreciation ofevidence which can only be undertaken during the course of tial. In a recent pronouncement, the Honourable Supreme Court of Pakistan rn "Zuloarnain Haider al ias Zain v.

The te and another" [2025 SCMR 1457] observed as follows:-

jurtaposilian, il becomes apparent lhal lhe allegalions in both complainls arc qua lhe same inci.den , as they

share a common nexus in term,s of dok, time, locotian, notive, and parties involved. The only opparent distinction lies in the sequence of reporting. This factual overlap, prima facie, ruflects that ihe two vetsions are anlilhetical claimt arising out of one and lhe same occutrence lhus, portaying the cu ent scena o os cross version The reason being tha! in cases invohing cross-versions of the same occuttence, il is a well-seuled pinciple of criminal jurisprudence that the pfime considerotion belorc the Courl is to ascerlain which patu was the aggressor and which patu t'as aggressed upon. The noture, seal, and nunber of injuries sastained by each side may andoubledly be relevanl; however, such faclors arc merely indicative and do nol, by lhemselves, carry an overriding or conclusive effecl The merc efrent of injurics caused to o e party cannol serve as the sole basis for druwing an adverse inference againsl the othe4 especially wherc both vercions emanate from the same transaction and each pafly aflributes aggression to the othet.

6, In cases of counter versinns arising lrom the same incident, one given by lhe complainant in the FIR, and the othet given by the opposile party, bail in apprupride cases is granted as a rule on the gruunds of further inquiry for the rcason that the questbn as to which venion is conect is to be decided after the recording of pro and confia evidence dufing the trial, and ako to ascerlain thich parly L'as lhe aggrcssot and which par| ttos aggressed upon. The refusal of bail in such cases is an exceplion. Reliance is placed upon Fazal Muhammtd v. Ali Ahmed 1976 SCMR 391, ShaJiqan v. Hashim Ali 1972 SCMR 6E2, Khalid Mehmood v. Muhammad Rashif Rasool 2013 SCMR 1415 and Khizar Hayrt v. The State 2024 SCMR

13.The above principle has long been recognized in our jurisprudence. Reference in this regard may advantageously be made to the case of "Shoaib Mehmood Butt v. Iftikhar-ul-Haq ( and 3 others" (1996 SCMR 1845) wherein the Honourable Supreme Court of Pakistan has held that:

"In case of coanter-vetsions afising ltom the same incident, one given by complainanl in F,I.R. and rhe olhet given by lhe opposite parly, the case-law is almost sellled lhal such carses are covered for grunt of hail on the ground ol fafiher enquiry as conten ploled undet seclion 497(2), Cz,P.C. In such cases normally bail is gra ted on the ground ol furthet enqairy fot the reason thal lhe questian as lo which version is correcl is to be decided by the tfial courl which is supposed lo

l0

recotd eyidence and appruise lhe samc in order to come ,o a li al conclusion in this regard In cases of counler-versions, normally plea of privule defence is taken giving rise to the question as lo l,hich parry is aggressor and which pany is aggressed""

14.Similarly, guidance may also be drawn from the case of ttUsman v. Mushtao Ahma d and anothertt (PLD 2014 Peshawar 108) wherein it was held that where firearm injuries axe present on both sides and rival versions of the same occurrence exist, the counter version cannot tentatively be treated as a mere fabrication, and consequently the case crosses the initial threshold of being treated as a cross case, entitling the accused to be considered for the concession of bail on the principle of further inquiry. The relevant observation reads as follows:

"As far as falsity of the counter version is concerned, il is noted thut there are ftrearm Wwies on both sides; hence, tentatively assessed the countet vedion cannot be considercd a nurc fabricaion lo seek any advanlage. Hence, the pelilionet's case crusses lhe inilial lhreshold of bringing ,he case wilhin the pumiew of a cross case and thercby to be enti ed to be considered for grant of the concession of bail, "

15.Further support in this regard may also be drawn from the case reported as2025 YLR 785 (Sindh).

16.For the foregoing reasons and without expressing any opinion on the merits of the case, the petitioner Saadullah Khan ( has succeeded in making out a case for further inquiry within the meaning of section 497 Q) Cr.P.C. Consequently, the instant bail application is allowed, and the petitioner is admitted to bail subject to his fumishing bail bonds in the sum of Rs.200,000/- (Rupees Two Hundred Thousand only) with two sureties each in

bail cancellation application, 1,€, No.10- ll 8,12025 is hereby dismissed nlbninie.

the like amount to the satisfaction of the learned tialCottrtllllaqa Judicial Magistrate/Duty Magistrate. Needless to observe that the 07.01.202s.

'Inrdnulldh PS' observations made herein are purely tentative in nature and shall not prejudice the case ofeither party during the course oftrial. (S,B) Hon'ble Mi lastlcc Abdal Fayaz Announced.

'Itnlanulhh PS' -Sd- Judge

JUDGE

frr (S.B) Ilon'ble Mr..rusttce Sobll Ullah Xhan

o 9

=-) ..a .lSF'