1989 PLP 2063 (SCMR)

NAIMUDDIN, J.‑‑The petitioner seeks leave to appeal from the order of the Peshawar High Court dated 2‑11‑1988, whereby his application for cancellation of bail granted by the Additional Sessions Judge, Haripur, to respondent No.2 in a case under section 302/307/34, P.P.C. was dismissed.

2. Brief facts of this case, according to the F.I.R., are that Muhammad Zamurrad son of Bostan, respondent No.2 and Zamurrad son of Sikander, both armed with pistols, Shaukat and Fazal Ahmad armed with .12 guns came in the hotel of Muhammad Khan where petitioner alongwith Tahir, Mahboob, Abid, Muhammad Akram and Muhammad Nawaz, was present. A minor altercation took place between the parties, which was intervened by one Azam Khan, who was also present in the hotel. Respondent No.2 is alleged to have fired at Azam Khan with his pistol, which hit the latter's back. Later he is stated to have participated in indiscriminate firing made by his co‑accused. Azam Khan succumbed to his injuries in the hospital.

3. In support of the application for bail before the Additional Sessions Judge, it was urged that the deceased, in his statement under section 161, Cr.P.C., did not attribute specific shot to respondent No.2 but accused him of participating in the general firing. Plea of alibi was also raised on behalf of respondent No.2 and some documents were produced to show that he was not present at the spot at the time of occurrence. In the circumstances, according to the Additional Sessions Judge, the case of the respondent called for further inquiry. Accordingly he was released on bail.

4. The learned High Court, on examination of the record placed before it, affirmed the order of the Additional Sessions Judge and the application for cancellation of bail of respondent No.2 was dismissed.

5. In dismissing the application, the learned High Court observed as follows:‑ "Zamurrad son of Bostan, respondent No.2, has been charged in the F.I.R. for firing at. deceased Azam Khan and also for general firing at the complainant party whereas the deceased Azam Khan in his statement recorded under section 161, Cr.P.C., on 26‑12‑1987 did not ascribe this role to the said respondent but charged him only for taking part in the general firing. Respondent No.2 is also a Government servent and he had produced some documents to show that he was not present at the spot at the time of occurrence and was busy in his official duty."

6. We have heard the learned counsel for the parties. The learned counsel for the petitioner submitted that the learned High Court has not specified the documents relied upon in support of the plea of alibi and it was not a case of further inquiry. On the other hand, the learned counsel for the respondent points out that the trial of the case has begun and three witnesses have already been examined which fact is not controverted by the other side. In this view of the matter; we are not inclined to consider the submissions of the petitioner any further and dismiss the petition. However, we would direct that the learned trial Court will complete the trial by 31‑7‑1989 by proceeding day to day as far as possible. M.A.K./M‑1002/S Petition dismissed