2008 P Cr (PLP)

MUHAMMAD ALAM KHAN, J.

Amanullah Khan and Usman Khan sons of Muhammad Nawaz, residents of Kotla Said Khan Dakhli, District Lakki Marwat, have filed this bail petition, as they have been charged in case F.I.R. No.1, dated 2-1-2007 under sections 302/ 324/148/149, P.P.C. Police Station Naurang.

2. Briefly narrated the facts of the case as disclosed in the F.I.R. are, that on 2-1-2007 at 9-00 hours, Humayun Khan son of Saaduilah Khan complainant lodged a report to Miran Shah Khan, S.H.O. of C.M.H. Bannu to the effect that on the day of occurrence at morning time, he along with his father Saadullah Khan and brother Tariq Javed, left for Mehr Mandi Multan in his Datsun bearing No. DNB-455. The Datsun was being driven by him and his father and brother were sitting with him on the front seat. At 0700 hours, when they crossed the house of one Abdul Hamid, Mashal Khan son of Yaqoob Khan, Usman and Amanullah alias Aman Khan sons of Muhammad Nawaz, armed with kalashnikovs, were standing there on road side. On reaching near them, all the three attacked them. His father and brother were beaten by them with the butts of their kalashnikovs. In the meantime Afzal Khan, Naimatullah, Jamal Khan, their father Muhammad Nawaz son of Yaqoob Khan and Ehsan Khan, armed with kalashnikovs, present there. They gave beating to the complainant with the butts of their kalashnikovs. Muhammad Nawaz ordered them to kill the complainant party, on which Mashal Khan, Usrnan Khan and Amanullah fired at them, with which the complainant, his father Saadullah Khan and brother Tariq Javed were hit. After the occurrence, the accused decamped from the spot. Brother of the complainant Tariq Javed succumbed to the injuries. Motive for the offence is stated to be land dispute between the parties.

3. The petitioners submitted bail application to Sessions Judge, Lakki Marwat, which came for hearing before Asad Hameed Khan, Additional Sessions Judge, Lakki Marwat, who vide order, dated 13-9-2007, rejected the bail application and hence petitioners have come to this Court with a prayer of post-arrest bail.

4. The parties were put on notice. On 28-2-2008 Muhammad Nawaz, father of' the petitioners, Mr. Tariq Aziz Baloch, Deputy Advocate-General for the State and Muhammad Yousaf, brother of the complainant respondent No.2 were present. However, when this bail application came for hearing before this Court today, respondent No.2 got himself absented. The Advocates were on strike, so the counsel for the petitioners submitted detailed written arguments, which have been perused and placed on the record.

5. Perusal of the record reveals that a cross F.I.R. bearing No.2, dated 2-1-2007 was made at 0900 hours by Muhammad Nawaz son of Muhammad Yaqoob, in which Yousaf Khan, Humayun Khan sons of Saadullah Khan and Saadullah Khan son of Muhammad Zainan were charged for the murder of Afzal Khan son of Muhammad Nawaz and Mst. Shakeela Begum daughter of Muhammad Nawaz. This F.LR. is of the same date and is cross-case. The accused persons charged in F.I.R. No.2 have been released on bail by the learned Sessions Judge while co-accused in F.I.R. No.1 Naimatullah, Muhammad Nawaz and Mashal have also been released on bail by the learned Sessions Judge.

6. There are two cross-versions of the occurrence incorporated in F.I.R. No.1 registered by complainant Humayun on 2-1-2007 and the other by Muhammad Nawaz son of Muhammad Yaqoob bearing F.I.R. No.2 of the same date. So, there are two cross-versions of the occurrence and it has yet to be determined that which one was the aggressor and which one was aggressed. So, in view of the cross-cases the petitioners are entitled to the concession of bail as held in the case Muhammad Aslam anti another v. The State through Advocate-General Punjab and another 1997 SCMR 251 and Nazar Jan v. The State and others 1999 YLR 1471.

7. It was also borne from the record that all the accused have been released on bail especially accused Mashal who was found innocent by the police and was released on executing a personal bond. The role attributed to Mashal and that of the present accused is one and the same and hence, on the principle of consistency too, they are entitled to the concession of bail as held in the cases of Muhammad Fazal alias Bodi v. The State 1979 SCMR 9 and Wali Muhammad v. The State 1996 PCr.LJ 835 (Peshawar).

8. It is also borne from the record that Amanullah, petitioner No.1 is serving in Frontier Constabulary Wana, South Waziristan, as per certificate of the Commandant Frontier Constabulary that on the day of occurrence he was performing his duty at Wana South Waziristan. Similarly, Usman Khan, petitioner No.2 is serving in Police Department and there is no apprehension of his absconsion. So, this makes the case one of further inquiry and the accused petitioners are entitled to the concession of bail.

9. In view of the facts and circumstances of the case narrated above, this bail, application is accepted and both the accused petitioners are released on bail provided each one of them furnishes bail bonds in the sum of Rs.2,00,000 (Rupees two Lacs) with two sureties each in the like amount to the satisfaction of Illaqa Judicial/Duty Magistrate, Lakki Marwat. The sureties must be local, reliable and men of means.

10. I have disposed of this bail application vide short order, dated 10-3-2008 and the above are the detailed reasons for the same.

11. Before parting with this order, it is important to note that in these two cross-cases so many applications were submitted to the learned Sessions Judge, Lakki Marwat which were mainly disposed of by the learned Sessions Judge himself except the present bail application which was sent to Mr. Asad Hameed Khan, Additional Sessions Judge, Lakki Marwat. The principle of propriety demands that when a bail application is disposed of by one Judge, the successive bail applications or similar bail applications in the same F.I.R. should be heard and decided by the same Judge in order to avoid conflicting order/judgments as held in the case of The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC

173. Copy of this judgment be sent to Sessions Judge, D.I. Khan, Bannu, Lakki Marwat and. Tank for future guidance and assistance. H.B.T./9/P Bail granted.