' ATTAULLAH KHAN, J.---Taj Ali Khan son of Poinda Khan, accused/petitioner, charged in case F.I.R.
No, 483 dated 13-12-2010 of Police Station Lakki Marwat, District Lakki Marwat, under sections 324/34, P.P.C., has filed this application for his release on bail.
2. Brief facts according to the F.I.R. Are that complainant reported in injured condition to the local police in Civil Hospital, Lakki Marwat that on the eventful day at about 6-00 hours, he accompanied by his son Faridullah, on his way back from fields, when reached near Tube Well of Muzaffar Khan, found petitioner along with co-accused Sakhi Marjan duly armed. When they reached near the accused, they started indiscriminate firing due to which he was hit and dropped on the ground while his son was escaped unhurt. Motive is dispute over the tube well water and on the report of complainant the instant case F.I.R. Was chalked out.
3. Learned counsel for the petitioner argued that there is a cross case, therefore, it is not known that as to which of party is aggressor and which is aggressed upon. He further argued that it is a case of further inquiry.
4. On the other hand, the learned counsel for complainant argued that the injury received by the complainant is on vital part of the body and there are two eye-witnesses including injured who saw the accused at the time of commission of offence. Regarding the cross case he argued that the parties are not the same.
5. 1 have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. Perusal of record reveals that the report was lodged on 13-12-2010 at 17-45 hours while the occurrence took place at 16-30 hours. After one hour and 15 minutes the matter was reported to the police. It appears from the report that the incident was reported to the police in emergency room of Civil Hospital, Lakki Marwat since the complainant was injured, therefore, was shifted to the hospital for treatment and that might have taken time, so at present the delay is explained itself.
The accused/petitioner is directly charged in the F.I.R. The medical report is on file which discloses that the injuries are on vital part of the body of complainant. The occurrence has been witnessed by injured along with his father and Faridullah, so ocular evidence also connected the accused/petitioner with commission of offence. As far as the cross case is concerned, it is to be pointed out that the parties are not the same and that fact cannot be considered at this stage.
Even otherwise the settled principles are that every cross case cannot be ground for grant of bail. I rely upon 2005 SCM R 1402, wherein it is held that:-- "If the argument of learned counsel is acceded to and if the Courts are made bound to consider even, cross-case a case of further inquiry and thus to grant bail to all the persons involved, it would lead to various anomalous and complicated situations. Every accused in murder cases would come forward with a 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 conclusive finding on the subject".
' It is further held that:-- "While holding that a tentative assessment is permissible at bail stage and mere existence of cross-case cannot be a ground for grant of, bail, we are fortified by our own judgment in Nasir Muhammad Wassan's case 1992 SCM R 501. We, therefore, hold that bail to all the persons cannot be granted simply because of existence of cross-version and without making tentative assessm ent of the given circumstances".
' I also rely upon 1992 SCM R 501, wherein the principle laid down is:-- "Mere registration of cross cases between the parties would not help the party to release him on bail."
7. In short the accused/petitioner has been charged directly in the F.I.R. For effectively attempting at the life of complainant. The injury caused by complainant is on vital part of the body. The medical evidence supports the prosecution case. The empties have been recovered. The cross case would not help the accused/petitioner because of different parties. The mere presence of cross case could not be a ground for grant of bail. The essential ingredient is to be considered for bail matter to find out whether the accused is charged for the offence directly and whether the identification is proper and thirdly there exists any mala fide. Nothing of this kind is available in the case in hand.
8. In such circumstances, I find no merit in this application for bail which is accordingly dismissed.