JUDGMENT ATTAULLAH KHAN, J. -- Petitioner Yousaf Khan son of Ghulam Rasool, is seeking his release on bail in case F.I.R. No. 96 dated 27-6-2010 registered under sections 302/324/404/ 427/148/149, P.P.C. At Police Station, Dadiwala District Lakki Marwat, as his petition for bail has been dismissed by learned Sessions Judge-I, Lakki Marwat on 22-12-2010 and learned Judicial Magistrate Lakki Marwat on 9-12-2010.
2. Facts of the instant case as per F.I.R. Are that on 27-6-2010 Sardar Nawaz Khan, S.H.O. Police Station, Dadiwali sent a murasila for registration of case to the effect that on the eventful day, he along with other police party was on routine gasht in the Illaqa and when reached to the baithak of one Naseeb Khan, there a motorcar of red colour was found parked. The person seated in the motorcar, on seeing the police party started the motorcar and sped away. The motorcar being suspected was chased by the police party. The motorcar 'disappeared into the village Abadi of Shahab Khel. The police party parked the official pick up in the thoroughfare near Masjid, in the limits of Wanda Shahab Khel. Thereafter, the complainant Sardar Nawaz S.H.O. Along with police officials started search of one Rafiullah and Maqsood Ali sons of Hasti Khan no Wanda Shahab Khel, required to the local police vide Mad No.41 dated 26-6-2001, Police, Station; Dadiwala. In the Meanwhile at about 1830 hours, one Naseeb Khan, Niamatullah, Imran, Qismat Khan sons of Nikam Khan resident of Landiwah, Yousai Khan no Tajazai along with five other unknown persons came there in two motorcars, duly armed with Kalashnikovs. As soon as they reached there, they got down from the motorcars and immediately started firing upon the police party with the intention to commit their Qatl-e-Amd. In self defence the police party also started firing. From the firing of accused persons constable Shehzada F.C. No.377 got hit and died and similarly constable Naseeb also Sustained injuries from their firing. The accused party while decamping from the spot, also took away official weapons i.e. Kalashnikov along with spare magazines and live rounds from Constable Shehzada, constable Naseeb and from constable Inamullah and on the basis of which the above mentioned F.I.R. Was registered against the petitioner and co-accused.
3. Learned counsel for the petitioner argued that co-accused namely Niaz Ali has been bailed out, therefore, the rule of consistency also applicable to the case of present petitioner. His second argument is that the present petitioner Yousaf Khan is not the same person as mentioned in the F.I.R., as his father name is not given. He also submitted that the statement of injured driver recorded under section 161, Cr.P.C. On 20-7-2010 is in conflict with the F.I.R.
4. On the other hand, learned private counsel of respondent No.3 submitted that the petitioner is directly charged in the F.I.R. And the F.I.R. Is promptly lodged within thirty minutes. He further argued that the case of bail of co-accused Niaz Ali is quite different because he includes in the five unknown, persons. He argued that statement of injured witness recorded under section 161, Cr.P.C. Is in line with the contents of F.I.R. And if there is any conflict it would not effect the case of the prosecution because such statement before the police is not admissible in evidence.
5. Arguments heard and record perused.
6. The main contention of the learned counsel of petitioner is that the case of present petitioner is at par with co-accused Niaz Ali who is on bail and that the present petitioner is not the person i.e. Yousaf Khan who is charged in the F.I.R.
7. There are two sets of the accused in the F.I.R. One set consists of five persons named as accused while the second set of five persons in unknown. The co-accused who was granted bail related to second group and thus he was not charged and named in the F.I.R. The present petitioner is named as culprit and charged for effective firing which resulted in murder of constable Shehzada F.C.
No.377 and injury to other police constable, so his role and case is quite different from the co- accused Niaz Ali and therefore principle of rule of consistency would not attract to the case of present petitioner.
8. Coming to the second argument about the identification of petitioner that the name of petitioner is mentioned in the F.I.R. But father name is unknown, this again would not effect the case of prosecution because there are number of witnesses who saw the occurrence. Moreover, he was named in the F.I.R. Just after thirty minutes of the occurrence. So far the statement of injured eye- witness is concerned which is also of no avail to. The petitioner for the reason that it is not in conflict with the contents of F.I.R. The B occurrence took place on 27-6-2010 while petitioner was arrested after recalling his bail before arrest petition on 15-11-2010.
9. Record reveals that on 15-11-2010, the present petitioner was surrendered before Court by submitting his bail before C arrest petition and he remained absconder. This abcondance is not satisfactorily explained.
10. In short the petitioner is desperate and hardened criminal as he has attacked on the police party resulting in murder of constable Shehzad Khan and injuring another constable. The F.I.R. Was lodged within thirty minutes after the occurrence and the petitioner is named in the F.I.R. There is ocular evidence which connects the petitioner with commission of offence. Moreover, he remained absconder.
11. Keeping in view the above discussion, I am of the view that the petitioner is not entitled to the concession of bail, therefore, his bail petition is dismissed.