RASHID KHAN vs THE STATE and another
This matter arises from a petition for post-arrest bail filed by Rashid Khan, who is accused in F.I.R. No. 157 of 2000 for the double murder of Afsar Zaman and Haji Azeem Khan. The core legal question concerns whether bail should be granted in a cross-case scenario where both parties sustained injuries, mutual firing occurred, and the initial aggressor cannot be definitively determined at the pre-trial stage. The Peshawar High Court held that since the petitioner sustained firearm injuries during the incident, the presence of both parties is undisputed, and it remains unclear which party initiated the aggression amidst a previous blood feud, the case calls for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The court laid down the principle that where two rival factions encounter each other unexpectedly and engage in armed confrontation resulting in injuries to both sides, the question of who was the aggressor becomes a matter for trial evidence, entitling the accused to post-arrest bail.
- Whether post-arrest bail can be granted in a cross-case where both parties sustained firearm injuries and the initial aggressor cannot be determined at the bail stage?
- Does the existence of a previous blood feud and an unexpected confrontation between rival parties warrant further inquiry into the question of aggression for the purpose of bail?
- Should an accused person who has sustained firearm injuries in the same occurrence be released on bail when the prosecution witnesses fail to fully explain those injuries in the F.I.R.?
- Section 497, Code of Criminal Procedure 1898
' TARIQ PARVEZ, J.---Petitioner herein is accused in case F.I.R. No, 157, dated 25-12-2000 where Jalandar Khan complainant reported to the police that Afsar Zaman, his brother and Haji Azeem Khan, his uncle, have been killed in his presence and in the presence of Bakhtullah and Mira Jan P.Ws. By the petitioner. For the offence, six other co-accused were also charged who are presently absconders.
' Bail is sought on the ground that seven persons have been attributed role of firing with Kalashnikovs and as the occurrence has taken place in a market surrounded by shops but no bullet mark was found anywhere nor any spent bullet recovered so much so no empty. Also that in all there are four fire-arm injuries on persons of the two deceased for which seven persons are charged. Much stress has been made on F.I.R. No, 158 where Rashid Khan petitioner is said to have received four fire-arm injuries for which he has charged Jalandar Khan complainant of case F.I.R.
No, 157 and Bakhtullah, a P.W. In the instant case. It is argued that in view of the fact that both the parties were involved in criminal litigation per chance got together in the premises of Mandl and resorted to indiscriminate firing on each other, therefore, at this stage it cannot be determined that which party has started the aggression which would entitle the petitioner to the grant of bail.
2. Learned counsel appearing for the complainant states that it is not every cross-case which would entitle the accused to be released on bail when the petitioner as complainant of case F.I.R.
No, 158 has totally suppressed the presence of as many as six of his co-accused and also the death of two deceased of this case. It is argued that as many as 5/6 witnesses who are shopkeepers in the Mandi and whose presence has been specifically mentioned in the site plan though not named in the F.I.R. Have supported the version of the complainant wherein the complainant party was unarmed and they were fired at by the accused party and that Rashid Khan has sustained fire-arm injuries at the hands of his own accomplices. The learned counsel states that except the statement of Rashid Khan in F.I.R. No, 158, there is not an iota of evidence muchless of an eye-witness to corroborate his version.
3. We would restrain ourselves to make any comments as to how Rashid Khan has sustained injuries because Jalandar Khan complainant and the two eye-witnesses named in the F.I.R. Have not explained the manner in which he has sustained the fire-arm injuries though the Shopkeepers have stated that he was hit with the shots of his own co-accused, that too with four shots, we would leave such fact to be adjudicated upon by the trial Court, after recording of evidence. For the purposes of bail at present, we find that Rashid Khan has sustained fire-arm injuries and has accepted his presence and also the presence of Jalandar Khan complainant of the ether case. The venue of the crime, the time of occurrence and the two complainants of the two F.I.Rs, are same and because Rashid Khan has sustained fire-arm injuries and also when visit of both the parties to the Mandi was without the knowledge of other, it cannot be ruled out in view of previous blood feud enmity that the parties got confronted with each other and due to fear resorted to firing. Therefore, it cannot be at this stage concluded that which party was aggressor and the which is aggressed upon.
This application for grant of bail is allowed provided the petitioner furnishes bail bond in the sum of Rs, one lac with two sureties each in the like amount to the satisfaction of the trial Court.