' MAZHAR ALAM KHAN MIANKHEL, J.---The present petitioner through the instant petition seeks his release on bail in case F.I.R. No,590, dated 12-7-2009 registered under sections 302/324/34, P.P.C.
Police Station Nowshera Cantt.
2. The brief facts giving rise to the present petition are that the complainant along with deceased Asad Ayaz and Yasin Khattak had gone to Khushal Garden with regard to inquire about wheel loader. When they reached there, one Muhammad Daud Khan Khattak and Wahab-ud-Din, the present petitioner, armed with Kalashnikov were present there and just after seeing them, the present petitioner on the directions of Muhammad Daud Khan Khattak, opened fire with his Kalashnikov with the intention to kill them, as a result of which Asad Ayaz was hit by firing of the accused petitioner while the complainant and Yaseen Khattak escaped unhurt. While taking the injured Asad Ayaz to the hospital, he succumbed to the injuries on his way to the hospital and motive for the offence was shown to be a dispute over some landed property situated in Khushal Garden between Yasin Khan Khattak and Daud Khan Khattak.
3. The learned counsel appearing on behalf of the petitioner submitted at the very outset that the present case for which the accused petitioner has been charged is a cross case of F.I.R. No,600 which was registered at the report of present accused petitioner against Fayaz Khan, the complainant of the present case along with his other companions under sections 324/447/148/149, P.P.C. He was on his duty as a watchman along with his other fellows in Khushal Garden when the complainant of the present case along with his 4/5 unknown persons duly armed with Kalashnikovs and pistols entered into the premises of the society and opened indiscriminate firing. That because of indiscriminate firing of the present complainant and his fellow men, they took shelter and started aerial firing just to exercise their right of self-defence and to protect their lives. The learned counsel for the petitioner submitted that the report of the matter was there and then communicated to the S.H.O. Concerned on his mobile phone which fact is also mentioned in the written application for registration of the case moved by Wahab-ud-Din, the present petitioner. He also referred to the record annexed with the present petitioner regarding the telephonic calls by referring two numbers, detail of which is available at Serial Nos. 229 and 230 at page 14 of the present file. The learned counsel further submitted that instead of recording of the report of the present accused petitioner in the relevant register against the culprits, the S.H.O.
Came to the spot and arrested the accused petitioner and after the arrest of the accused petitioner, he submitted a written application by disclosing all these facts and then, on inquiry under section 156, Cr.P.C., the cross case vide F.I.R. No,600, dated 15-7-2009 was registered against the complainant of the present case and his fellow men under sections 324/447/148/149, P.P.C. He further submitted that if the present facts and circumstances elaborated by him are considered, it would prove that the instant case is not based on facts.
4. On the other hand, the learned counsel appearing on behalf of the complainant vehemently argued that the present case is an independent case and the case registered vide F.I.R. No,600 cannot be termed as a cross case which is the result of concoction and afterthought. The counsel further submitted that it is a bail application and deep merits of the case referred and argued by the learned counsel for the accused petitioner is not permissible at the bail stage. He went on to submit that it was a board daylight occurrence, parties were known to each other, presence of the accused is proved along with the recovered empties and the weapon of offence and the report of the arms expert is positive. The F.I.R. Of the case was promptly lodged against the present accused petitioner and the name of the eye-witness was also mentioned in the F.I.R. Motive of the offence has also been disclosed.
5. Learned counsel A.A.-G. Appearing on behalf of the State supported and endorsed the arguments of the learned counsel for the complainant and requested for dismissal of the application.
6. Perused of the record of both the cases would reveal that even if the case F.I.R. No,600, dated 15- 7-2009 is considered to be a cross case, then the question of further inquiry on the basis of cross case in the given circumstances cannot be considered or would not be a valid ground for the release of the accused petitioner on bail who has been directly charged in the F.I.R. And from whom weapon of offence has been recovered and four empties of 7.62 bore has also been recovered from the spot and the FSL report is positive wherein a young man of 27/28 years of age was done to death. The medical report is also in line with the prosecution story and the offence for which the accused has been charged falls within the prohibitory clause of section 497, Cr.P.C. So keeping in view all the facts and circumstances of the case, this petition fails, hence dismissed. However, my this order may not prejudice the mind of the trial Court.