' ATTAULLAH KHAN, J.--Accused-petitioner Ziainuddin son of Sheik Saadi seeks bail in case F.I.R.
No,635 dated 15-10-2009 registered under sections 302/34, P.P.C. At Police Station City, Bannu.
Earlier his bail petition was dismissed by the learned Courts below.
2. The brief facts are that Shahqiaz Khan reported in the Emergency Ward, Civil Hospital, Bannu that on the day of occurrence he was coming from Lakki Gate, Bannu towards his shop situated in Bazar Ahmad Khan Chauk and when reached to the spot near the shop of Pehlwan, Snuff seller, at about 1530 hours, Zainuddin armed with .30 bore pistol and Faridoon and Zulqarnain duly armed with Kalashnikovs appeared and opened firing with which the complainant was hit. The accused'decamped from the spot. Later on the complainant succumbed to the injuries on 17-10- 2009 i.e, on the second day of the occurrence.
3. Learned counsel for the petitioner argued that cross case has also been registered vide F.I.R.
No,636 on the same date and time under sections 324/34, P.P.C. And in the presence of the cross case, at this stage, it cannot be ascertained as to which of the parties is aggressor and on this ground the accused-petitioner is entitled to bail. He further argued that three persons are charged and the number of injuries do not tally with the number of accused which creates doubt about the genuineness of the case. He further argued that in the presence of cross case, there are two versions, therefore, the version favourable to accused is to be accepted. The learned counsel relied upon 1999 PCr.LJ 810 in this case cross case was registered and the bail was granted on the ground that aggressor is not known.
4. On the other hand, learned counsel for the complainant submitted that cross case and number of injuries qua number of accused are no ground for bail. He relied upon Laiq Shah and another v.
The State and others (2006 PCr.LJ 184 Peshawar), Safirulah v. The State and another 2003 PCr.LJ 1691, Zarghun Shah v. The State and another (2004 PCr.LJ 127 Peshawar) and Sardar Munir Ahmad Dogar v. The State (PLD 2004 SC 822). According to the learned counsel, mere presence of cross case and difference between number of injuries and number of accused would not make the case fit for bail if otherwise the accused are connected with the offence.
5. Arguments heard and record perused, in the light of which my discussion is as under:-
6. In the case of Laiq Shah and another v. The State others (2006 PCr.LJ 184 Peshawar) it is held that even if number of injuries are disproportionate to the number of accused, that will not be a ground to release the accused on bail. So, in view of this case law, the difference between number of injuries and number of accused would not be a good argument of release of the petitioner on bail.
Same principle has been laid down in Safirullah v. The State and another 2003 PCr.LJ 1691 and the bail was not allowed in spite of difference in number of injuries and number of accused because otherwise there was sufficient material to connect the accused. The relevant portion is reproduced below:- "The mere fact that one entry wound was found on the dead body of the deceased whereas four persons have been nominated in the F.I.R. For firing, cannot be held a good ground for release of the petitioner on bail as held by this Court in Khawaja Noor petitioner v. Munitalah Khan and another respondents (2003 YLR 151 Peshawar)."
7. In case Zarghun Shah v. The State and another (2004 PCr.LJ 127 Peshawar), the registration of cross case has been discussed in detail and the following principle has been laid down:-- "I have heard at length the arguments of learned counsel for the parties and have also perused the material on record. Without highlighting merits of the case I find that petitioner is directly charged in the promptly lodged report for murder of Hashim deceased and attempted murder of Asif complainant. The medical report and witnesses of the occurrence fully support the charge.
' It needs no reiteration that in cases of counter version the rule allowed is that if one party is granted bail the other party is also entitled to the same relief, but that rule would be applicable in cases of genuine counter version. In the instant case I find that mere filing of cross case against each other cannot be considered a good ground for release of the petitioner on bail unless an element of genuineness is there."
2. Principle of counter version has also been decided by the apex Court in Sardar Munir Ahmed Dogar v. The State (PLD 2004 SC 822). It is held that: "Now turning towards the argument of the learned counsel relating to grant of bail to petitioner in view of the counter version of the same incident in which admittedly, two persons had died from the side of complainant (opponent) besides causing injuries to four persons and one person had died from petitioner's side along with two injured person, therefore, with this background, it would be essential to examine whether there were reasonable grounds to enlarge the petitioner on bail.
Normally, in such situation, bail can be granted as it has been held in Shoaib Mehmood Butt case
(ibid) but at the same time it is also one of the duty of the courts to place both the versions in juxtaposition to ascertain as to which one, prima facie, is nearer to truth and on forming its tentative opinion, bail can be granted to the accused, if it is found that the version advanced on his behalf is nearer to truth. However, such finding would be tentative in nature. It is to be borne in mind that petitioner is accused for allegedly committing the murder non-bailable offence, therefore, he, as a matter of right, cannot be released on bail. A carefully study of both the versions from police record, which has been made available for our perusal, prima facie, suggest involvement of the petitioner, in view of statements of P.Ws Muhammad Azam and Muhammad Sahrif. The record further reveals that 132 persons were ready to make the statements that petitioner was not present at the site but no such statement was recorded. Even otherwise, this could be the defence of the petitioner, which of course, would be considered, if put forward, later on by the trial Court, but at this stage, by considering both the versions in juxtapositions, presence of the petitioner at the time of incident cannot be overruled."
9. In this case the accused is directly charged by the complainant who succumbed to, his injuries after two days. In a way his report may be considered as dying declaration. Medical report also supports involvement of the accused. Site plan also corroborates the evidence collected by the prosecution. There is also an eye-witnesses in this case besides the report of the deceased.
10. The result of my above discussion is that the existence of cross case or difference in number of injuries and number of accused would not make the accused entitled to bail. His case is not fit for bail. The petition is, therefore, dismissed. However, the above discussion is tentative is nature and would not effect trial of the accused in any way.