MUSSADIQ KHAN vs THE STATE and another

' SARDAR MUHAMMAD RAZA KHAN, J.--- Mussadiq Khan son of Haji Muhammad Hassan and Ayub Khan son of Naqeeb Khan of Charsadda, have filed this petition for their release on bail seeking leave to appeal against the order, dated 25-8-2003 passed by Peshawar High Court in Criminal Micellaneous No,632 of 2003 whereby the grant of bail was declined.

2. We would confine ourselves to the case of Mussadiq Khan alone because Ayub Khan stands already released on bail by this Court on 16-12-2003, on medical grounds.

3. The matter pertains to F.I.R. 487 dated 5-5-2003 of Police Station Charsadda registered under sections 302/324/34, P.P.C. On the eventful day at 10-30 a.m. One Taj Muhammad Khan in injured condition lodged a report at the hospital that after attending the Court proceedings at Charsadda in respect of his elder brother and the nephew, he along with Alamgir and Liaquat was heading towards his vehicle. They saw Musaddiq Khan and Ayub Khan standing there along with other persons. Both started firing at them with which the complainant, his companions Alamgir and Liaquat got injured. Injury to Liaquat proved fatal and he died on the spot. A land situated in village Utmanzai is stated to be the bone of contention.

4. Learned counsel for the petitioner relied upon the cross-version from accused side reflected in F.I.R. No,488 registered at the same police station on the same day at 11-20 a.m. Against the opposite party for attempting at their lives by firing. It was alleged that in the presence of the cross-case, the petitioner was-entitled to release on bail because all others involved from both sides had been so released. That the version of the alleged eye-witnesses was discrepant with the F.I.R.; that no motive against the petitioner has been proved, that the cross-version was plausible; that the ocular version is not supported by medical report and that the injuries sustained do not coincide with either the site plan or the testimony of the witnesses and lastly, that it was not known as to which party was the aggressor and which, the aggressed.

5. Learned counsel for the respondent, on the other hand relied upon the F.I.R. Which was promptly lodged and seriously challenged the genuineness of the version. It was added that the motive is a fact to be proved at the trial and even if not proved it would make least difference (?) to the well- established prosecution version.

6. After having heard the learned counsel on either side at length, we are afraid, we would not be able to so intricately and deeply appreciate the evidence at this stage least it may damage the case of any of the parties involved, at trial. Even otherwise deep appreciation of the evidence, as demanded by the learned counsel for the petitioner, cannot be resorted to at bail stage.

7. Suffice it to observe that the prosecution case and the version of F.I.R. Is prima facie supported by two injured eye-witnesses. It further finds support from the Medico-legal Report of the injured and postmortem report of the deceased coupled with the facts that both the parties have a long lasting enmity.

8. In the instant case, ten empties were recovered from the spot out of which two matched with the pistol recovered from vehicle of the accused party. Learned counsel for the petitioner stated that the accused had nothing to do with the said car. Learned counsel for the respondent No,2 pointed out that it belonged to the nephew of the petitioner Ayub Khan.

9. The complainants in the cross-versions were neither killed nor injured and hence could have immediately gone to the police station but the same was delayed by an hour and twenty minutes despite the fact that the occurrence had taken place opposite to Sessions Court Charsadda and quite near to the police station. It is also not conceivable at this stage that the accused in the cross-case caught hold of a person of the petitioner side from neck, tried to pull him out of the car and then fired but it went amiss from the point blank range. That three persons accused in the cross-case opened fire at the petitioner's party but everyone escaped unhurt from such a close range. It is also worthy to be noticed that the car belonging to the opposite party, the subject- matter of F.I.R. 488, though damaged allegedly on the same day was produced by the accused party after 34 days. The element of tampering and creation of evidence in one's favor, cannot be ruled out at this stage.

10. In view of what has been discussed above, we observed that the High Court, after proper appreciation of the facts and the circumstances of the case has rightly refused bail to the petitioner. There being no merit in the petition. It is hereby dismissed and leaves to appeal refused to the petitioner in-question. The petitioner will be at liberty to move the trial Court if and when required or plausible. However, it is desired that the trial of the case and would dispose of the same as expeditiously as possible.