2010 PLP 670 (YLR)

ATTAULLAH KHAN, J.--Through this single order, I propose to dispose of the instant petition for bail moved by petitioner Farmanullah and Cr.M.B.C. No.405 of 2009 moved by Ajmal Khan petitioner for cancellation of bail granted to accused-respondents Ghulam Muhammad and Fahim as both the petitions are the outcome of one and the same F.I.R. No.334 dated 2-8-2009 registered under sections 302/324/34, P.P.C. at Police Station Lakki Marwat.

2. The complainant reported to the police that on the day of occurrence at 0845 hours he along with his brothers Abdul Khanan, Iqbal Khan and Mashal Khan were proceeding towards their house and when they reached to Chauk of their village, in the meanwhile accused Ghulam Muhammad armed with .12 bore shotgun, Farman and Fahimullah with .303 bore rifles emerged there. Ghulam Muhammad co-accused directed the other accused to kill the complainant party. On this Farmanullah accused-petitioner with his rifle fired one shot which hit Abdul Khanan. The other accused Fahimullah also fired which gone amiss and thereafter the accused decamped. Abdul Khanan succumbed to his injuries.

3. Learned counsel for the accused contended that there is a cross case registered on behalf of accused party under sections 337-A (ii)/34, P.P.C. vide F.I.R. No.335 dated 2-8-2009 and it is not known as to which of the parties is aggressor. He further argued that the injured in the cross-case has also been suppressed by the complainant party. It is also one of his arguments that the spot of occurrence is near the house of complainant and whatever is done by the accused is the result of self defence. It is also contended that the other two accused have been bailed out, therefore, the demand of principle of consistency is to bail out the present petitioner.

4. It is true that cross-case has been registered by the accused party vide F.I.R. No.335 under sections 337-A(ii)/34, P.P.C. but it is to be pointed out that every cross-case cannot make entitled an accused for concession of bail. It is not a rule but discretion and other attending circumstances are also to be taken into consideration. In this case the attending circumstances go against the accused, prima facie, is that single injury has been caused to the deceased as per medical report and contents of F.I.R. The accused-petitioner is charged for firing on the deceased and has also been attributed, in the F.I.R., firing of one single shot. In my opinion this is a sufficient evidence to connect the accused with the offence unless it is rebutted during the trial.

5. As far as the plea of self-defence is concerned, it seems to be an afterthought because while lodging cross-case the accused party has omitted to take this plea in their report. It is also consistent view of the superior Courts that such-like pleas may be raised during trial and not at bail stage. Besides this, there is ocular evidence against the accused in support of prosecution stand. It is a daylight occurrence and the chance of misidentification stands eliminated. The active participation of the accused-petitioner is proved on file. The death of the deceased is the result of one shot and that shot has been attributed to the accused-petitioner by giving him a specific role. The report is also lodged with reasonable promptitude and mere filing of cross-case would not benefit the petitioner. Reference may be made to Nazir Ahmad v. Muhammad Ismail and another 2004 SCMR 1160, Zarghun Shah, v. The State and another (2004 PCr.LJ 127) and Ehsan Akbar v. The State and 2 others 2007 SCMR

482. In view of the above, Farmanullah accused-petitioner is not entitled to bail.

6. As far as the cancellation of bail granted to respondents Ghulam Muhammad and Fahim is concerned, it is to be noted that the principles of grant of bail and cancellation thereof are altogether different. The complainant is required to make out a case for cancellation by bringing material on record that either the accused granted bail have misused the concession of bail or tampered with the evidence. Nothing of this sort has been brought on record nor proved. There must be exceptional circumstances for cancellation of bail. So, there is no good ground for recalling bail of accused-respondents Ghulam Muhammad and Fahim.

7. For the above reasons, both the petitions are dismissed. H.B.T./13/P Petitions dismissed.