1992 P Cr (PLP)

2. It is alleged in the F.I.R. that while getting out of his house for tethering the cattle in the street adjacent to his house, the complainant, his son Gul Rahim and his daughter Mst. Shahzad Bibi were fired at by the petitioner and his son as a result of which Mst. Shahzad Bibi was hit while the complainant and his son escaped unhurt. The assailants succeeded to make good their escape from the spot and could be arrested on 20‑1‑1990. There is at the petitioner's discredit, abscondence of 2 months an‑t 16 days, while his son is still a fugitive from law. The plea of the petitioner for bail, however, did not find favour with the learned Additional Sessions Judge, Bannu at Lakki. Hence this petition.

3. Mr. Sanaullah Khan Gandapur, the learned counsel for the petitioner, contended‑‑ (i) that the medical evidence and the site plan contradict the ocular version furnished by the prosecution witnesses; (ii) that the D.S.P. who had also investigated the case, apart from exonerating the petitioner of the charge after examination of some local witnesses has not only disbelieved the time of occurrence holding it to be of night occurrence but bad also placed him in column No.2 of the challan; (iii) that since it was a night occurrence, wherein the complainant party had resorted to firing at the accused party, a cross‑case had also been registered against the complainant and, therefore, the petitioner was also entitled to bail on this score as well; and (iv) that it is not clear as to whose shot amongst the two accused had proved effective and, therefore sharing of the common intention by the petitioner with the absconder is not established.

4. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate‑General assisted by S. War Abbas Zaidi, Advocate appearing on behalf of the complainant, has opposed the plea of bail raised on behalf of the petitioner and argued that detailed appraisal of the prosecution evidence could not be legally undertaken at this stage. It was also submitted that opinion of the Investigation Officer which was not substantiated by any material on the record was not binding upon the Court. It was then maintained that having remained fugitive from law, the petitioner was disentitled to the concession of bail. Lastly, it was argued that the occurrence of ineffective firing reported on 4‑11‑1989 at 8‑00 a.m. by one Ismail son of Gut Zaman besides being a counterblast to the occurrence in hand was not a cross‑case in 'that in the alleged firing at Khuftanwella , the petitioner and his son were not shown to have been present.

5. The argument of the learned counsel for the petitioner that‑ the medical evidence and the site plan contradict the ocular evidence, cannot be subjected to detailed scrutiny at this stage. Nonetheless, even if the possibility of the solitary injury sustained by the deceased cannot be attributed to one of the two assailants; the recovery of two empties and cardboard disc from the spot, prima facie, connect the petitioner with the firing made at the complainant party resulting in the death of the deceased. The petitioner can be prima facie, held liable for the offence with which he has been charged.

6. I am inclined to agree with the learned Assistant Advocate‑General that opinion of the Investigation officer qua the innocence of the accused petitioner is not binding on the Court because in the instant case such opinion has not been raised on the soundness of any material excepting few statements of the so‑called elders of the village. The words used by the Investigation officer in declaring the petitioner as innocent are (IVNME) (secret information). Obviously, the statements of few interested persons in our society and the secret information is not a sufficient material for declaring a person as B innocent for the charge of murder. In Criminal Miscellaneous No.4 of 1989 titled as Shadi Khan v. Maitullah, I was constrained to observe that:‑‑ "It is not the single case from the jurisdiction of Bannu District that a plea of alibi raised by the accused‑respondent has been accepted by the Investigation Agency and that a tendency has developed over the months that such a plea is advanced and reliance is placed on Badi‑uz Zaman v. State 1985 P Cr. L J 2624. It is disquieting to note that of late a tendency has emerged as a very profitable trade for Investigating Agency to examine some locals from the accused side in support of the plea of alibi and then to exonerate them of the charge and thus thwart the process of administration of criminal justice:" In this case also, the opinion of the Investigation Officer, as stated earlier, qua the innocence of the petitioner is not based on sound material and the petitioner would not be entitled to bail.

7. I also find some force in the contention raised on behalf of the State that the case registered vide F.I.R. No.56, dated 4‑11‑1989 at 8‑00 a.m. at the behest of Gut Zaman cannot be, prima facie, taken to be a cross‑case for two fold reasons: firstly, that the time of occurrence in F.I.R. No.56 of the instant case and F.I.R. No.56 registered on the following day on the arrival of the Investigation Officer at the spot and taking down the report is different and, secondly, that the presence of the petitioner and his absconding son does not find a mention in the said F.I.R.

8. On consideration of the entire material on the file, I have formed the opinion that there are reasonable grounds for believing that the petitioner has committed the offence with which he has been charged. It is not possible to suggest that the reasoning of the learned Additional Sessions Judge to refuse the concession of bail to the petitioner were fanciful or arbitrary which would justify the grant of bail to the accused‑petitioner.

9. In this view of the matter, I would dismiss this petition for bail. The trial Court should, however, see that the trial of the accused‑petitioner is not delayed. H.B.T./1299/P Petition dismissed.