' Having been involved in a case registered vide F.I.R. No,812 dated 11-10-2002 under sections 302/34/148/149, P.P.C. At Police Station City Kohat, the accused-petitioner applied for his release on bail in the Court of learned Additional Sessions Judge-I, Kohat but his application was dismissed vide order, dated 23-11-2003. Now he has moved this Court for his release on bail.
2. On 11-10-2002 at 16-13 hours Muzarab Shah alias Muzaray, Zarghoon Shah alias Zarghoonay along with 4 others persons duly armed with pistols and kalashnikovs fired at the deceased Muhammad Aziz, brother of the complainant, who succumbed to his injuries while on the way to hospital. The occurrence was allegedly witnessed by the complainant and other persons. Motive for the offence was a dispute between the deceased and the accused which took place a few days prior to the occurrence in the Bazar.
3. Mian Manzoor-ur-Rehman, the learned counsel representing the accused-petitioner, argued that the accused-petitioner was not charged in the F.I.R. He was for the first time charged by Sharifullah complainant in his statement recorded under section 164, Cr.P.C. On 23-10-2002.
Thereafter, one Shakir Hussain was examined under section 164, Cr.P.C. On 6-11-2002 wherein he also charged the accusedpetitioner but the said witness was won over by the prosecution/ complainant.
4. It was also argued that co-accused, namely, Sardar has already been granted bail by the learned trial Court vide order, dated 8-7-2003, therefore, on the rule of consistency, the accused- petitioner is also entitled to be released on bail.
5. Complainant Sharifullah was absent because as per report of the process-server, he being an Afghan Refugee has left the place of abode, therefore, his service was not possible.
6. On the other hand, Mr. Aftab Khan, the learned counsel representing the State, argued that the accused-petitioner has been charged for effective, firing upon the deceased and the role assigned to co-accuse Sardar who has already been released on bail by the learned trial Court, was quite different. The said co-accused had not been assigned the role of effective firing; therefore, the rule of consistency is not applicable to the case of the accused-petitioner. Reliance in this regard is placed on Abdul Hamid v. The State PLD 1997 Lah.
164.
7. I have heard the arguments of the learned counsel for the parties and perused the record of the case.
8. No doubt the accused-petitioner was not charged in the F.I.R. By the complainant for the murder of his brother but later on, his statement under section 164, Cr.P.C. Was recorded on 23-10-2002 wherein he charged the accused-petitioner 'and one Sajid son of Sultan for the commission of the offence. Another independent witness namely, Shakir Hussain who was a Rikshaw driver, also charged the accused-petitioner along with Sajid in his statement under section 164, Cr.P.C.
Recorded on 6-11-2002. The case of the prosecution is also supported by the recoveries of 16 empties of 7.62 bore, blood-stained earth from the spot and one spent bullet. The post-mortem report also supports the case of the prosecution.
9. So far as the case of Sardar co-accused, who has been enlarged on bail by the learned trial Court vide order, dated 8-7-2003 is concerned, the role assigned to the said accused was quite different than that assigned to the accused-petitioner, therefore, the case of the petitioner is not at par with co-accused Sardar and the rule of consistency is not attracted to his case.
10. There is a prima facie case connecting the accused-petitioner 'with the commission of offence and at this stage there appears reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation of life. I, therefore, do not feel inclined to release the accused-petitioner on bail. Resultantly, the application in hand is dismissed.