JUDGMENT ATTAULLAH KHAN, Petitioners Khalid Khan and Khadim Khan sons of Bare Khan are seeking their release on bail in case F.I.R. No.43 dated 4-3-2010 registered under sections 302/324/427/ 148/149, P.P.C. At Police Station, Havaid District Bannu, as their petition for bail has been dismissed by learned Judicial Magistrate, Bannu and Additional Sessions Judge-IV, Bannu respectively.
2. Brief facts of the instant case as per F.I.R. Are that on 4-3-2010 at 11-40 hours, complainant Rahmatullah son of Mir Khan, reported to the police at Civil Hospital, Bannu that he along with his uncle Noor Baqi Jan were going to their village in a motorcar from Havaid. Motorcar was being driven by Noor Baqi Jan (uncle of the complainant) while complainant was sitting at the rear seat.
At 0830 hours when they reached at the place of occurrence, there seven accused duly armed, while Aziz ur Rahman was armed with pistol suddenly appeared and on the command of Taveez, they opened fire with their respective weapons with intent to kill them while they were standing on both sides of the road. His uncle Noor Baqi Jan was injured and resultantly died. Damage was also caused to the motorcar. One of the accused Nazie was also injured in the incident due to firing of other co-accused. Accused after the occurrence decamped from the spot and complainant luckily escaped unhurt. Motive is stated to be previous blood feud enmity. The report of complainant was drafted in the shape of murasila, which was incorporated into above mentioned F.I.R.
3. Learned counsel of the petitioner argued that another case F.I.R. No.42 was also registered for the murder of Nazir as such present case is a cross case of that case. He further argued that co- accused Aziz-ur-Rahman has been granted ad interim pre-arrest bail by Additional Sessions Judge-IV, Bannu, therefore, rule of consistency is also applicable to the case of present accused/petitioners. He further submitted that case of the present accused petitioner is of further inquiry; therefore, they be released on bail:
4. On the other hand learned counsel appearing on behalf of complainant argued that it is not a cross-case because F.I.R. No.43 contained explanation in that regard which may be considered.
Regarding bail of co-accused, he submitted that role of co-accused Aziz-ur-Rahman is quite different from the accused petitioners, therefore, principle of rule of consistency cannot be extended to them. He further submitted that the accused/petitioners remained absconder and complete challan has been submitted against them in the trial Court and the trial will shortly start and if bail is allowed it would touch merit of the case which is not in the interest of justice.
5. Arguments heard and record on file perused with their valuable assistance.
6. I would first discuss the grant of bail to the co-accused Aziz-ur-Rahman. The record reveals that co-accused Aziz-ur-Rahman has been allowed ad interim pre-arrest bail on the ground that he has been charged with no overt act and his plea of alibi was also considered. The order of learned Additional Sessions Judge-IV, Bannu in that record is available on file. In the case of accused petitioners no alibi is available to them because they have not taken it in the petition nor in the arguments. The order of learned Additional Sessions Judge dated 9-12-2010 reveals that co- accused Aziz-ur-Rahman had left Pakistan on 9th August, 2009 and returned back on 16th June, 2010. During the days of occurrence he was working at Abu Dubhi.
7. In my opinion the plea of alibi is sufficient to create a stance of false implication of the said co- accused by complainant party. The ground prevailed in the ad interim pre-arrest bail is not available to the present accused/petitioners, having a distinguishable role, therefore, principle of rule of consistency would not complicated situations. Every accused in murder cases would apply to this case.
8. His arguments regarding cross-case F.I.R. No.43 reveals that complainant also disclosed that with the firing of accused one Nazir has also been injured, who subsequently died. The causing of injury to the member of opposite party in the instant F.I.R. Creates doubts about the genuineness of the alleged cross case bearing No.42.
9. Learned/counsel for accused/ petitioners relied on 1997 SCM R 251, wherein a cross-case has been discussed. I have perused the above mentioned judgment but the case of present accused petitioners is distinguishable because the facts are different. In the reported case there was a clear case alleged by accused which was considered. In this case, as stated above the cross-case has become doubtful in view of the mentioned of injury to a person, who subsequently died, by complainant in the F.I.R. Of the instant case. In all bail petitions of cross-cases the courts are not bound to exercise discretion in favour of accused by granting him bail. The existence of cross-case is no guarantee for grant of bail. Every case has its on facts and to be decided on the basis of tentative assessm ent of material available on record. If accused is proved to be connected with the offence he cannot take the benefit of cross-case. I may rely on 2005 SCM R 1402, wherein it is held that:-- "If the agreement of learned counsel is acceded to and if the courts are made bound to consider every cross-case a case of further inquiry and thus to grant bail to all the persons involved, it would lead to various anomalous and come forward with frivolous cross-version in order to make it a case of further inquiry and to get released on bail. It is to check these frivolous situations that even in cross-cases the Courts are permitted to make tentative assessment. At times it is quite difficult to presume, that a cross-case is false but at times the frivolity is apparent on the face of record.
The only safeguard against frivolous and false cross-cases is to make a tentative assessment without any convulsive finding on the subject."
10. Moreover, challan has been submitted against the accused/petitioners in the trial Court and the trial is about to start. If bail is allowed it may effect the trial of the Court. In such like cases the Apex court has disapproved the practice. I may refer to 1988 SCM R 918, wherein it is held that:-- "We have heard the learned counsel for the parties and have gone through the orders of the Courts below. We have been informed that the challan in the case has been-put in the. Court and the trial is to start shortly. In this view of the matter we are not inclined to recall the order of bail of the four respondents. The learned trial Court, however, would be at liberty to cancel the bail of the respondents if on recording evidence incriminating material is brought against any of them.
Criminal Petition No.125-R of 1987 is thus dismissed with the above observations."
11. I also rely upon 1992 SCM R 1418, wherein the same principle has been laid down, wherein it is held that; "During the hearing of the case it transpired that the challan having been submitted in court the trial is going to commence. The learned Advocate-General has relied on Akmal Masih and others v.
Salamat Masih and 4 others 1988 SCM R 918 in support of the contention that this Court ordinarily does not consider it appropriate at the stage as in present case to interference with the orders of the High Court relating to bail---particularly in cases of murder. So far as it goes the contention raised by the learned Advocate-General has the support of the judgment cited by him."
12. In short the accused/petitioners are directly charged. The accused/petitioners remained absconder for sufficient time without any just explanation. The cross-case is doubtful unless it is proved at the trial stage. The principle of rule of consistency is not attracted to the case of present accused/petitioners. Challan has been submitted and trial is about to start.
13. Keeping in view the above discussion, I am of the view that the petitioners are not entitled to the concession of bail, therefore, their bail petition is dismissed..