1. MAZHAR ALAM KHAN MIANKHEL J.---Petitioner herein has been refused bail by the Court below in case F.I.R. No.306 dated 28-6-2011, Police Station Jabar, Mardan registered under sections 302/324/34, P.P.C. And now through instant petition he seeks his release on bail as such.
2. The learned counsel for the petitioner argued that the accused petitioner has falsely been charged in the case, as the petitioner, being an A.S.-I. In the Police Department, had laid a picket on prior information at the relevant time for the arrest of proclaimed offender Murad Ali Shah (brother of complainant), who instead to surrender himself to the police resorted to firing at the police party and, as a result of firing made by the police in self-defence, the complainant and the deceased, being companions of the proclaimed offender, received firearm injuries. The counter-version of the incident was reported by the accused/petitioner vide F.I.R. No.305 dated 28-4-2011 registered under section 324/353/34, P.P.C. Read with section 13 Arms Ordinance, hence on this count too the case against the petitioner is one of further inquiry as it is yet to be determined at the trial as to which of the party was the aggressor. The learned counsel further argued that during investigation the version of accused/petitioner found support and though the opinion of an Investigating Officer in favour of accused is not binding on the Court but it can be considered as an attending circumstance having persuasive value. The learned counsel also referred to the alleged motive and submitted that once a motive is alleged then it has to be proved but from the available record motive in this is shrouded in mystery. The delay in lodging the report was also described to be the result of consultation and deliberation, whereas the single injury received by the complainant on non-vital part of the body was argued to be another factor making the case against the petitioner arguable for the purpose of bail as to whether the case against the petitioner would fall under section 324, P.P.C. Or section 337-F(v), P.P.C., the maximum punishment for which is 5 years imprisonment. The learned counsel referred to certain judgments of the superior Courts in support his arguments for the release of petitioner on bail.
3. The learned A.A.-G. On the other hand strongly opposed the bail application and submitted that the accused/petitioner is directly charged in the F.I.R.; the delay of few hours in lodging the report is not fatal in the circumstances of the case; the registration of cross-case is not only mala fide but an afterthought so as to provide him some backing for taking the law into hands for his personal revenge under the garb of performing his official duty; the eye-witness account, medical evidence, recoveries made from the spot and other circumstantial evidence fully supports the prosecution case and the petitioner, in the facts and circumstances of the case, being fully connected with the commission of crime is not entitled to the concession of bail.
4. I have heard the learned counsel for the petitioner and the learned A.A.-G. On behalf of the State and have perused the record. The complainant on the previous date of hearing had requested for some time to engage a counsel. Accordingly, the case was adjourned to 27-6-2011. Today, the learned counsel for complainant has sent his power of attorney through complainant and himself did not turn up to argue the case without any plausible reason. The conduct of the learned counsel for the complainant is highly condemnable. His absence is an intentional one for which he is warned to be careful in future.
5. Perusal of the record would reveal that the petitioner along with his co-accused is directly charged in the F.I.R. For committing the murder of one. Attaullah deceased (brother of the complainant) and causing firearm injuries to the complainant. As per contents of the cross-case F.I.R., the complainant in injured condition was arrested on the spot and sent to the hospital for treatment, where his report was recorded, hence the delay at this stage is not noticeable. Perusal of the record further reveals that on the application of complainant, the learned Sessions Judge, Mardau has entrusted the investigation of this case to the Crimes Branch. It is well-settled that every cross- case cannot entitle an accused to the concession of bail, because the exercise of such a power is not .a rule but discretion of the Court. In such a case, other attending circumstances are also to be taken into consideration. The attending circumstances of this case, in presence of ocular evidence and other material available on file, would go against the accused/petitioner. Even if the case is considered to be a cross-case, the question 9f further inquiry cannot be considered, because it would not form a valid ground for the release of accused on bail, who has been directly charged in the F.I.R., the medical report too supports the prosecution story and the offence for which the accused has been charged also falls within the prohibitory clause of section 497, Cr.P.C. Reliance in this regard can be placed on the judgments rendered in the cases of Mussadiq Khan v. The State, (2005 SCM R 1718), Farmaullah v. The State and 2 others (2010 YLR .670), Muhammad Yaqoob v. The State and another (2010 YLR 688) and Wahabuddin v. The State (2010 PCr.LJ 792). The consideration of other grounds raised by the learned counsel for the petitioner at this stage would obviously amount to deeper appreciation of the evidence, which is not permissible. On the tentative assessm ent of the material available on file, prima facie case is made out against the petitioner, disentitling him to the concession of bail.
6. So, for the reasons discussed above, this petition, having no merit, is dismissed.