Petitioners seek bail in FIR No, 761 dated 10.12.2009 registered under Sections 302/324/148/149/427 PPC, Police Station Daudzai at the instance of Jehanzeb s/o Miftahuddin.
2. On 10.12.2009 at 14:30 hours police, while on patrol duty, received information about the occurrence. On reaching the spot Jehanzeb s/o Miftahuddin was found there who reported that he alongwith his brother Mumtaz Khan, nephew Nasir Khan, Gohar Ali Nazim Nahaqi & Asmat Ali sons of Mir Zaman, Afzal Khan s/o Izzat Khan, Allauddin s/o Sirajuddin, Noor Muhammad s/o Saraf Khan residents of Nahaqi were going in Jeep No, H-4731 Peshawar and in motorcar VXR No, R-4321 Peshawar to the Hujra of Roohullah for giving him Hajj Greetings and when reached near the spot i,e, thoroughfare near the house and Hujra of Maulana Fazal Maula, there Muhammad Rasool, Israr Khan sons of Ghulam Rasool, Falak Niaz s/o Ghulam Sarwar, Amjad, Saboor, Mussawir, Yasir son of Muqaddar Khan, Basit, Kazim sons of Ghulam Sarwar, Sajid, Shaukat sons of Majnoon, Haroon, Humayun sons of Yousaf residents of Nahaqi, Ijaz son of Fayaz resident of Mewra, Saeed s/o Said Hussain, Zulfiqar alias Bhutto and Fakhre Alam sons of Said Rasool residents of Garhi Hamza came there and started firing at them, as a result of which Afzal Khan, Allauddin and Noor Muhammad were hit and died on the spot whereas Asmat s/o Mir Zaman was injured. Mumtaz Khan brother of complainant, nephew Nasir Khan, Gohar Ali and Asmat Ali were cited as eye-witnesses for the offence. Motive for the occurrence, as given in the FIR, is that between Saboor and Ijaz, co-villagers of the parties, there was blood feud and to settle that dispute a Jiro. was constituted. The accused were suspecting that Mumtaz Khan was supporting their opposite party in the Jirga proceedings.
3. During the spot inspection, Jeep No, H-4731 Peshawar and blood stained earth was taken into possession from the places of three deceased. 128 empties of different bore were also recovered from the spot. Motorcar No, 4321 Peshawar belonging to Gohar All Nazim, having bullet marks, was also taken into possession. Statement of Mumtaz, Nasir, Asmat and Gohar Ali were also recorded under Section 161 Cr.P.C. House search of the accused was conducted but none was found.
4. Learned counsel for the petitioners argued that as many as 17 persons are charged for the murder of three deceased but during the postmortem examination 13 entry wounds were found on their person out of which eight entry wounds are in the shape of bunch; that almost the entire family members have been roped in as some are brothers, nephews and the other closely related; that PWs Gohar Ali and Asmat were inside the Hujra and they do not support the case of the prosecution rather from their statement it is evident that even the complainant, Mumtaz and Nasir were also in the Hujra when the firing started, as such, they have also not witnessed the occurrence; that it is not specifically mentioned, neither by the complainant nor by his brother Mumtaz, as to whose shot proved effective; that keeping in view the number of inlet wounds, at the most it can be the job of 6/7 persons; that the site plan position also negates the version of complainant; that seven empties were recovered from the vehicle of deceased.
5. On the other hand, the learned counsel for complainant argued that the FIR is lodged promptly; that all the accused are charged for firing; that three persons have lost their lives; that 128 empties have been recovered from the spot which would alone show that number of accused has correctly been mentioned and that injured Asmat and his brother Gohar Ali support the version of complainant. As such, the accused-petitioners are not entitled to the concession of bail.
6. After hearing the arguments on 29.3.2010, the case was fixed for order on 2.4.2010 but while going through the record it was found that another case vide FIR No, 762 was also registered on the same date in the same -Police Station at the instance of one Zahoor s/o Hidayatullah. The said Zahoor in injured condition had reported that on 10.12.2009 he was present on the spot i.e: thoroughfare leading to his house, when in the meanwhile accused Tajuddin, Mumtaz and Ijaz, duly armed with fire arms, came there and started firing at him, as a result of which he got injured. Motive for the offence is given to be previous blood feud. This report assumed the shape of Dying Declaration when later Zahoor succumbed to the injuries. As such, notice was issued to the learned counsel for the parties for today.
7. Barrister Zahur-ul-Haq, learned counsel for the petitioners, with reference to FIR No, 762, submitted that since the petitioners do not figure in the said FIR, therefore, he has not referred to the same. Similar stance was taken by Mr. Assadullah Khan Chamkani, learned counsel for the complainant that it cannot be taken as a counter version due to difference in time and parties.
8. I have considered the arguments of learned counsel for the parties and gone through the record.
9. The points agitated by the learned counsel for the petitioners would need deep appreciation of evidence which is not, permissible at bail stage. On the basis of tentative assessment of the evidence available, it is held that the accused-petitioners are directly charged for an incident in which three persons have lost their lives; that some 128 empties were recovered from the spot; that both the vehicles were found having bullet marks. So, at this stage, prima facie the petitioners are not found entitled to the concession of bail. However, the record requisitioned would reveal that complete challan was submitted in the Court of learned Sessions Judge on 1.2.2010 which has been entrusted to Additional Sessions Judge-WI Peshawar. The charge has been framed against the petitioners on 17.3.2010.
10.Learned counsel for the complainant, while opposing the bail application made a statement at the bar that the private witnesses would be produced on one date whenever they are summoned by the Court and if any of the witnesses is Proclaimed Offender in some other case, he was referring to FIR No, 762 where Mumtaz Khan, witness in the present case, is a P.0, he would be abandoned.
11.In view of such statement of learned counsel for the complainant and keeping in view the fact that 17 accused are charged, the trial Court is directed to conclude the trial within a period of six B months after receipt of copy of order of this Court. The trial Court is further directed to convey the conclusion of the trial to the MIT of this Court. It is further directed that the trial Court shall not grant any unnecessary and avoidable adjournment. Office is directed to send the record forthwith to the learned trial Court concerned.