' Nadir Khan son of Sahib Gul of Kotka Jhangi Daud Shah Bannu is charged, alongwith others, under section 302/324/34, P.P.C. Vide F.I.R. No,4, dated 9-1-1996 of Police Station Cann. Bannu for the murders of Akram and Azizullah and attempt at the life of Sher Qadir complainant and Said Muhammad. The learned Special Judge, Bannu has refused to release him on bail.
2. Sher Qadir Khan complainant while in injured condition lodged a report at the Emergency Room of Civil Hospital, Bannu only 15 minutes after the occurrence; that on 9-1-1996 at 9-30 hours he alongwith his son Dildar Khan was sitting in front of his shop situated in Pipal Bazar when a pick-up arrived there in which Akram Khan, Azizullah and Said Muhammad Khan were sitting. It stopped in front while Shah Wali, Shah Muhammad and Nadir Khan alias Nandar Khan, the petitioner, appeared on the scene armed with "klashinikovs". They opened fire at the pick-up and the complainant with which Akram and Azizullah got hit and died on the spot. Sher Qadir complainant and another Said Muhammad were injured.
3. The aforesaid narration is given by two injured witnesses, namely, Sher Qadir and Said Muhammad in addition to Dildar Khan, the son of the complainant. The medical report supports the version alongwith the motive which was available against Akram Khan deceased. In order to kill Akram, the assailants had killed another Azizullah and had also injured the complainant as well as Said Muhammad. The factum of occurrence is further supported by Ghazi Noor, the driver of the pick-up. The petitioner Nadir Khan had remained absconder for six months and eight days and was arrested on 17-7-1996 when his pre-arrest bail was rejected. The co-accused Shah Wali and Shah Muhammad are still absconding in this double murder.
4. Complainant Sher Qadir had no enmity whatsoever with the assailants and, thus, his promptly lodged version before the police within 15 minutes of the occurrence should not be doubted at this stage. The petitioner is prima facie linked with the commission of double offences that fall within the prohibitory clause of section 497, Cr.P.C.
5. Learned counsel for the petitioner attempted to make premium from a subsequent development that had taken place in the shape of affidavits filed by Sher Qadir, Dildar and Said Muhammad witnesses who were also examined by the learned Special Judge during the hearing of bail application. Their version in nutshell was, that they had not witnessed the occurrence; that the assailants were not previously known to them and; that they had brought about a charge under suspicion. It is quite interesting that the witnesses happened to submit affidavits only after when Nadir Khan happened to be available to the Law Enforcement Agency. Had they been false, the charge would never have been brought within 15 minutes and in the circumstances when Sher Qadir had no enmity at all with the accused party. The strong possibility cannot be ruled out that they have been won-over. Even otherwise, the filing of such affidavits by the eye-witnesses is a matter which as per consensus of opinion of the superior Courts stands highly deprecated. There are rulings pro and contra on the subject but each situation is to be viewed in the light of the circumstances of that very case. As reasoned above, in the circumstances of the present case, the affidavits do not seem to be documents to be relied upon at this stage.
6. One must not pass without remarking that the recording of statements of the witnesses by the learned Special Judge during bail stage was highly improper even if not prohibited. This was a matter to be probed into by the Investigating Agency and the genuineness or otherwise of the affidavits should have been deferred to the conduct of trial.
7. A few references to very minor discrepancies and that too in the site plan are not so material so as to struck down the prima facie case of the prosecution. The application is rejected.