2010 MLD 288 (PLP)

HAMID FAROOQ DURRANI, J.

The petitioner Aurangzeb son of Mamraiz has moved this Court for his release on bail in offence recorded under sections 324/34, P.P.C. at Police Station, Tajori District Lakki Marwat through F.I.R. No.162, dated 13-6-2009. He was disallowed the relief by learned Additional Sessions Judge-II Lakki on 18-8-2009.

2. Hashim Khan complainant reported the matter to the local police, in terms, that on the relevant day at about 1530 hours, he was present in his landed property in the company of his cousins Khan Muhammad and Sher Khan. In the meanwhile, accused Mamraiz Khan, Atlas Khan, Aurangzeb and Rehmatullah appeared on the scene who were duly armed with rifles. They commanded the complainant party to refrain from partition of the land, as they were also sharers in the same. Simultaneously, accused/petitioner fired upon the complainant who received the shot on his person, while the other also attempted at the life of complainant party. Motive for the occurrence was noted to be dispute on landed property, while the companions of complainant were cited as witnesses of occurrence.

3. I have heard learned counsel for the petitioner, the complainant as well as learned A.A.-G. on behalf of the State and have also considered the available record.

4. It was mainly contended by learned counsel for the petitioner that there was no cross version of the occurrence which was recorded through F.I.R. No. 208 of even date. Place and time of reported occurrence was same in both the reports while all of the accused, except Ajmal, were allowed pre-arrest bail in the latter reported case. She was of the view that the petitioner was-also entitled for the concession. It was also argued that at least 4 persons simultaneously opened fire upon the complainant with similar kind of weapons, therefore, the tagging of petitioner could not be with sufficient exactitude in the normal circumstance. In the said regard, she referred to the plan, wherein, empties of .303-bore were shown to have been recovered from the points where all the accused were stationed.

5. Learned counsel for complainant, on the other hand, argued that the role of petitioner was distinct than the other accused and former was specifically indicated for having fired upon the injured. There was unexplained abscondence on the part of the petitioner who could only be arrested after rejection of his pre-arrest bail petition for which he initially applied on 28-7-2009. Learned counsel also referred to the Medico-legal Reports, wherein, the recovery of bullet from the body of complainant was shown. In his view, the petitioner deliberately kept himself away from investigation and waited for outcome of bail petitions preferred by the co-accused.

6. Having considered the facts available on record, I have clearly come to the conclusion that occurrence reported through F.I.R. No.208 cannot be dubbed as this stage at a cross-version of F.I.R. No.162. The reasons are firstly, that F.I.R. No.208 has been recorded after a delay of many hours, wherein apparently, the complainant first got himself equipped with the details of injured/injuries received by the other side. The factum was, therefore, duly noted in the subsequent F.I.R. It is also noticeable that F.I.R. No.208 was lodged by Khanzeb son of Mumraiz who stated himself to be in the company of his mother Mst. Bahadar Bibi at the relevant time who both were fired upon by the assailant including the complaining of F.I.R. No.162. They, however, escape unhurt. In the subsequent case presence of petitioner on the spot has altogether been suppressed, while in view of learned counsel for petitioner the complainant was none else than petitioner whose name was wrongly noted as Khanzeb. It is also pertinent to note that the ground qua cross case was never taken by the petitioner in his application for grant of bail before arrest nor through any subsequent applications preferred after his arrest, before the learned Judicial Magistrate or the learned Sessions Judge, as the case may be. The delay in lodging F.I.R. No.208 is sufficiently depictive of deliberation in order to counterblast F.I.R. No.162.

7. In addition to the above, the petition in hand does not merit favourable consideration owing to the facts that the petitioner is directly charged in a promptly lodged F.I.R. for specifically causing fire arm injury to the person of complainant. The alleged crime on the part of petitioner attracts punishment falling within purview of prohibitory clause contained in section 497, Cr.P.C. Consequently, the petition in hand is dismissed hereby. S.A.K./302/P Bail refused.