1996 PLP 1569 (SCMR)

MIR HAZAR KHAN KHOSO, J.

On 16-3-1994 F. I.Rs. Nos. 121 and 122 were registered at Lahore Police Station, District Swabi. In F.I.R. No. 121 appellant Dolat Khan alleged that Mir Hatam, respondent in Criminal Appeal No.334 of 1994, Khan Wali and Lai Bahadur, respondents in Criminal Appeal No.335 of 1994, armed with fire-arms, fired at him whereby he sustained injury on his right hand. In F. I. R. No. 122 it is alleged by Mir Hatam that Azim Khan and Nazim Khan, appellants in Criminal Appeal No.333 of 1994, killed his son Zubald by fire-arms. The abovesaid persons mentioned in both the F.I.Rs. were arrested by the police. Mir Hatam, Khan Wali and Lai Bahadur were granted bail by the lower Court. Azim Khan and Nazim Khan were refused bail. Dolat Khan approached the Peshawar High Court for cancellation of bail of Mir Hatam, Khan Wali and Lai Bahadur. Azim Khan and Nazim Khan also approached the same Court for grant of bail. Vide two separate orders dated 27-7-1994 the learned Chief Justice of the Peshawar High Court, dismissed the application for cancellation of bail of Mir Hatam, Khan Wali and Lai Bahadur and also declined to grant bail to Azim Khan and Nazim Khan. Both the parties filed petitions for leave to appeal before this Court. On 7-9-1994 the petitions were allowed and leave to appeal was granted with the following observations:-- "The learned counsel for the petitioners vehemently argued that as a result of cross-firing the deceased in case F.I.R. No. 122 lost his life while complainant of F.I.R., No.121 received grievous injury on his hand and that at the time of the trial the moot question for determination would be as to which party was the aggressor and which party aggressed upon and the right of private defence of person would require determination. He further submitted that since the accused of the cross-case have been enlarged on bail the petitioner in Case No.28-P of 1994, namely Azim Khan was also entitled to bail."

2. The learned counsel for the appellants in Criminal Appeal No.333 of 1994 reiterated that in cross-case F.I.R. No. 121 Mir Hatam, Khan Wali and Lai Bahadur, respondents in Criminal Appeals Nos.334 and 335/94, have been released on bail, hence the appellants should also be released on bail. He further contended that if they are refused bail the bail granted to Mir Hatam, Khan Wali band Lal Bahadur then be cancelled and they be remanded to custody. With the assistance of the learned counsel for the parties we have gone through the contents of F.I.Rs. Nos.121 and 122 dated 16-3-1994. Nowhere Dolat Khan appellant in Criminal Appeals Nos.334 and 335 of 1994) has claimed that there was cross-firing between the two-parties. Only injury on the hand of appellant Dolat Khan appears to be superfluous nature. It appears that he got registered F.I.R. No. 121 to save skin of the appellants, Azim Khan and Nazim Khan. Dolat Khan was not even supported by witness Badam alias Chamni. Keeping in view such facts the learned Chief Justice of Peshawar High Court declined to cancel bail of Mir Hatam, Khan Wali and Lal Bahadur. There seems nothing wrong with his order. The Appeals Nos.334/94 and 335/94 are dismissed accordingly.

3. Turning to F.I.R. No. 122, it may be observed that in clear words it has been alleged that Azim Khan and Nazim Khan fired at Zubaid and killed him at the spot. The order of Sub-Divisional Magistrate, Lahore, dated 25-5-1994, reflects that site plan was prepared by the Investigating Officer in two cases at two different spots and as such the two cases are not cross with each other. The order further reflects that Azim Khan and Nazim Khan remained absconder after occurrence for quite some time and challan under section 512, Cr.'P.C. was submitted by the Investigating Officer against them. However, in an abortive attempt the learned counsel for the appellants Azim Khan and Nazim Khan relied upon the case of Ali Akbar Shah v. Banaras and others (1990 SCMR 1097). The facts of this case do not tally with the case quoted above. Hence it does not come to the rescue of appellants Azim Khan and Nazim Khan. We are, therefore, not inclined to grant bail to them. Their appeal is dismissed. N.H.Q./A-1315/S Appeals dismissed.