2013 PLP 2046 (YLR)

SHAH JEHAN KHAN AKHUNDZADA, J.

Accused-petitioner, Mushtaq facing prosecution in case F.I.R. No.732 dated 22-10-2011 under sections 302, 324, 148, 149, P.P.C. r/w 512, Cr.P.C. registered at Police Station Mathra District, Peshawar was refused bail by the learned Additional Sessions Judge-V, Peshawar vide his order dated 15-3-2013. So, he has come to this Court for his release on bail.

2. Brief facts of the case are that on 22-10-2013 at 1600 hours Lakhkar Khan, complainant reported the matter to the police to the effect that on the same day at 1530 hour, he alongwith Sandali Khan, deceased, Raees Khan, Farhad Sayed were present at the spot, Sandali Khan uncle of the complainant was ahead of them, meanwhile accused Zarin, Raza Ullah sons of Sarwar, Mushtaq, Younas sons of Yousaf and Azad Khan armed with lethal weapons suddenly appeared near the house of Wasil Khan and started firing at them, as a result of which Sandali Khan was hit and died on the spot, while the complainant and his companions escaped unhurt. Besides, the complainant the occurrence was stated to have been witnessed by his companions. Motive for the occurrence was stated to be a dispute over the landed property.

3. On the same day, at 12.45 hours one Muhammad Jauhar an injured also made a report to the police at casualty of LRH, Peshawar to the effect that on the same day at 1200 hours he along with Raza Ullah, Zain Khan, Ghulam Haider and Azad Khan were present at the spot, meanwhile, Maqbali Khan, Sandali Khan, Raj Wali, Saif Ali, Shamsher Khan, Siraj Khan, Muhammad Ishaq and Akbar Khan armed with deadly weapons came there and on seeing the complainant party started firing at them, as a result of which Muhammad Jauhar sustained injuries on his legs while his other companions escaped unhurt. Motive in the said incident was also stated to be a dispute over the landed property. This report was registered vide F.I.R. No.731 dated 22-10-2011 under sections 324, 148 and 149, P.P.C.

4. Learned counsel for the accused-petitioner contended that the accused-petitioner is innocent and has been falsely implicated in the case; that there is a cross case vide F.I.R. No.731 registered against the complainant party and all the accused in that case have been released on bail and therefore, it is yet to be seen who is the aggressor and who has been aggressed upon, hence according to him case of the accused-petitioner require further probe; that incriminate firing has been attributed to the accused and it is yet to he seen at the trial that whose shot proved effective, that no independent and impartial ocular or circumstantial evidence regarding the occurrence is forthcoming on record to connect the accused-petitioner with the offence charged with, that no incriminating article has been recovered from the possession or at the pointation of the accused-petitioner by the Investigating Officer during the course of his interrogation, that the case of accused-petitioner is one of further inquiry, therefore, his alleged abscondence cannot be considered as an impediment in the way of granting bail to him. In support of his arguments, learned counsel for the accused-petitioner placed reliance on 1993 MLD 159 and 2008 SCMR 1448.

5. On the other hand, learned counsel for the State assisted by learned counsel for the complainant opposed the bail petition and contended that the accused-petitioner along with his co-accused are directly charged in the promptly lodged report which find support from ocular and circumstantial evidence as well as medical evidence and recoveries effected from the spot. Thus, according to him at present reasonable grounds to exist to believe that the accused-petitioner is connected with the offence charged with, which carries capital punishment and thus, his case falls within the ambit of prohibitory clause of section 497, Cr.P.C. He further contended that the accused-petitioner has absconded after the commission of offence and proceedings under sections 204 and 87, Cr.P.C. have been initiated against him, thus, he is not entitled to the concession of bail. In support of his arguments, he placed reliance on 2000 PCr.LJ 60, 2001 YLR 2440, 2010 PCr.LJ 1653, 1994 SCMR 1765 and 2012 PCr.LJ 1749.

6. After hearing arguments of learned counsel for the parties and perusing the record, I find that the accused-petitioner is directly charged in the F.I.R. along with his co-accused for firing upon complainant party as result of which one Sandali Khan received fatal injuries and died on the spot. The accused-petitioner as per contents of report and investigation carried out, by the Investigating Officer after the commission of 'Qatl-e-Amd' of deceased Sandali absconded from the spot after the occurrence and remained absconder for sufficient long time. It is well-settled that any person who thawarts investigation and fugitive from law and courts lose some of the normal rights granted by the procedural as well as substantive law. In this regard, I am fortified by the decision of the Apex Court in cases reported as PLD 1985 SC 402 and 1998 SCMR

190. Moreover, it is a broad-daylight occurrence and at the moment ocular evidence and post-mortem report of the deceased coupled with other materials available on record supports the version of the complainant. The occurrence in the instant case has taken place on 22-10-2011 while the accused-petitioner was arrested in the case on 27-2-2013.

7. So far as the contention of the learned counsel for the petitioner regarding the cross version vide F.I.R. No.731 registered against the complainant party of this case is concerned, it needs no reiteration that in cases of counter-version the rule followed is that if one party is granted bail the other party is also entitled to the same relief, but that rule would be applicable in cases of genuine counter-version. In the instant case I find that mere filing of cross-case against each other cannot be considered a good ground for release of the petitioner on bail, unless an element of genuineness is there. Further more tune of occurrence and place of occurrence in both the cases are different, therefore, here two cases in my humble view can be considered as cross cases. If an authority, is needed on the point reference can be made on 1992 SCMR 501 and 1995 SCMR 860.

8. Thus, from all the materials placed on record, there appears reasonable grounds for believing that the accused-petitioner is connected with offence punishable with death or imprisonment for life and thus his case falls within the purview of prohibitory clause of section 497, Cr.P.C., therefore, he is not entitled to the concession of bail and consequently, this petition in hand is hereby dismissed.

9. Before parting with this judgment, I must clarify that the observations made above are tentative in nature and shall not prejudice the case of either side at the trial. MWA/242/P Bail dismissed.