6. The petitioners i.e,, Daulat Khan son of Fazal Karim, (2) Ghafoor son of Nazir and (3) Muhammad alias Haddy son of Ahmad, all residents of Ahmad Kalley, Surizai Bala, Tehsil and District Peshawar, alongwith absconding accused, Fazal Karim, stand charged for having committed an offence punishable under section 302/324/34, P.P.C. Vide F.I.R. No, 716 dated 21-11-1996 registered at Police Station, West Cantt., Peshawar.
7. Briefly stated the facts of the case are that the complainant namely, Fazal Ahmad son of Haji Khan Muhammad, resident of Garo Shah, Tehsil Takht Bhai, District Mardan had gone to Peshawar Cantt. On 21-11-1996 in connection with some domestic/private work alongwith his nephew Fazal Wahid son of Haji Muhammad. He had parked his car on Arbab Road, opposite the P.I.A. Building and waited there for his other nephew Jehanzeb (deceased) working as a Manager in the Small Business Finance Corporation. Jehanzeb deceased came down from his office situated on the same road and was proceeding towards the said car when, in the meantime, petitioners Daulat Khan son of Fazal Karim, (2) Ghafoor son of Nazir, (3) Muhammad alias Haddy and the absconding acused Fazal Karim son of Gul Karim, resident of Atkay, Tehsil Shabqadar, District Charsadda, reached there who were all duly armed with pistols.
8. Petitioner No,1 Daulat Khan fired at Jehanzeb with which he was hit, fell down to the ground and died on the spot. The rest of the petitioners, alongwith the absconding accused, fired at the complainant and his other nephew Fazal Wahid. The complainant (respondent No,1) and P.W. Fazal Wahid
9. Escaped unhurt whereas another person by the name of Rasool Khan son of Haji Yar Muhammad, resident of Atkay, Tehsil and District Charsadda was injured.
10. The above episode was reported by the complainant (respondent No,1) to the Sub-Inspector Jehanzeb of Police Station, West Cantt. Who was on the "Gusht" of the Illaqa and had rushed to the scene of occurrence after having received the information regarding the firing. Accordingly Murasila was scribed at the instance of the complainant at 13-35 hours i.e, within 20 minutes of the occurrence.
11. The Murasila was despatched to the police station where, on its basis, F.I.R.No 716 was registered under section 302/324/34, P.P.C., against the petitioners and the absconding accused. The Sub- Inspector also sent the dead body of Jehanzeb to Khyber Medical Hospital, Peshawar for post- mortem examination, under the escort of F.C. No,957 Khan Sher.
12. The petitioners as well as the absconding accused ran away from the scene of occurrence after having accomplished their task.
13. Having failed to get bail from the lower forums, the petitioners have now approached this Court for the redress of their grievance saying that they are absolutely innocent, falsely charged and thus entitled to be released on bail not as a matter of grace but as a matter of right.
14. Mr. Muhammad Sardar Khan, Advocate, learned counsel for the petitioners, Mr. Imdad Hussain, Advocate, learned counsel for the complainant and Kh. Azhar Rashid, learned Assistant Advocate- General for the State present and heard at length. Record of the case also perused carefully.
15. Admittedly, the occurrence took place in broad-daylight at 13-15 hours on one of the most busy road in Peshawar Cantt. i.e,, Arbab Road. The report was lodged at 13-35 hours i.e,, within 20 minutes of the occurrence. Petitioner No,1 was directly charged for having fired at Jehanzeb and killing him then and there. The two other petitioners, alongwith the absconding accused, have been charged for having fired at the complainant and his other nephew, who escaped unhurt but in the process another person by the name of Rasool Khan, who has no connection with the complainant party, was injured. In the circumstances, the question of misidentification of the accused or false implication, prima facie, does not arise.
16. Six empties, freshly discharged, were also recovered from the spot alongwith blood-stained earth. The medico-legal evidence fully supports the version of the complainant/other eye witnesses of whom one namely, Rasool Khan injured, is an independent and disinterested witness.
17. It is also a matter of record that the petitioners remained absconders for a period of more than one year and were granted pre-arrest interim bail by the Additional Sessions Judge, Peshawar (Syed Wajahat Ali Shah) on 12-1-1998 18.
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20. Which was recalled on 16-2-1998. Thereafter they were arrested and their petitions for bail were rejected not only by the Senior Civil Judge/Judicial Magistrate, Peshawar (Mr. Sharif Ahmad) vide his order dated 5-3-1998 but also by the Additional Sessions Judge, Peshawar by his order dated 20-3-1998.
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12. The contention of Mr. Muhammad Sardar Khan, Advocate, learned counsel for the petitioners that the case of the petitioners is that of further inquiry, inter alia, on the following grounds:--
22. That it has not been pointed out in the F.I.R. As to where the petitioners-accused had gone after they had committed the crime;
23. That the site-plan, if taken to be correct, would contradict the medico-legal report because in that case the deceased should have received injuries on his left side;
24. And that P.W. Fazal Wahid.Had been imported, later on, in order to lend support to the prosecution story;
25. Is without any substance because these pleas cannot be considered as it would require deeper appreciation of evidence which is neither desirable nor permissible at bail stage.
26. On a tentative assessm ent of the material/record, I am convinced that it is not possible for me to come to the conclusion that reasonable grounds do not exist for believing that the petitioners have committed the offence charged with. I am therefore of the view that the discretion exercised by the lower forums in refusing bail has been exercised judiciously, in accordance with law and is accordingly not liable to be interfered with. The reasons given by the lower Courts for not releasing the petitioners on bail, to my mind, are quite convincing and sufficient in the circumstances of this case.
27. This bail petition does not merit consideration and is accordingly dismissed.