MUHAMMAD DAUD KHAN, J.---Having unsuccessful in obtaining bail from the two courts below, the accused/petitioner Fakhirullah involved in case FIR No.299 dated 24-6-2014 under sections 302/324/34, P.P.C. Police Station Ghoriwala, District Bannu has come to this court through counsel for the same relief.
2. The allegations against the present accused/petitioner as per FIR, referred above are that the complainant Muhammad Ali along with dead body of Mst. Mashal Bibi, co-villager, injured Muhammad Yar Khan (nephew of the complainant) at Civil Hospital Bannu on 24-6-2014 at 0820 hours reported the matter to Qamar Zaman ASI to the effect that on the eventful day at 0700 hours, he along with his nephew Muhammad Yar, relative Dilawar Khan were present in the fields situated within the limits of Mouza Ismail Khel, whereas Mst. Mashal Bibi their co-villager was grazing her cattle at some distance. Meanwhile accused/petitioner Fakhirullah along with co-accused Shafi and Qudratullah armed with Kalashnikovs appeared and started firing at them with the intention to commit their Qatl-i-amd, as a result of which his nephew Muhammad Yar Khan co-villager Mst.
Mashala Bibi hit and sustained injuries whereas he along with his relative Dilawar Khan luckily escaped unhurt. Accused after commission of the offence decamped from the spot, whereas they being empty handed could not retaliate. The complainant disclosed motive behind the offence an altercation a day prior to the instant occurrence. The injured were shifted to the hospital but on the way Mst. Mashal Bibi succumbed to the injuries. The report of the complainant reduced in shape of murasila sent to the Police Station through constable Alamgir, which culminated into above mentioned FIR. It is pertinent to note that injured Muhammad Yar Khan after medical treatment referred to K.G.N Hospital for further treatment but on the way at 0910 hours, he also succumbed to the injuries.
3. On the same day at 1400 hours another report was lodged by complainant Shafiullah for the same occurrence wherein he reported the matter at Police Station to the effect that on the eventful day his male sheep entered in the field of Noor Rehman at which he annoyed and attacked at him but the co-villagers rescued. After some time Zia ur Rehman, Noor Rehman and Arshad appeared and thrashed him but he due to fear and empty handed ran towards the home. At 1700 hours Dilawar Khan, Muhammad Ali, Bakhtiar, Sher Andaz and Asghar armed with Kalashnikovs appeared and started firing at him but he luckily escaped unhurt. Accused after commission of the offence decamped from the spot. The complainant alleged that apart from him the occurrence was witnessed by one Umer Nawaz, his co-villager.
4. Learned counsel for the accused/petitioner argued that there is material contradictions between the ocular account, medical evidence, site plan and other corroborative evidence, which fully suggest that no prima facie case is made out against the accused/petitioner. He went on to say that the accused/petitioner is a police official and on the crucial time of occurrence he was present on duty in Police Lines-II, Bannu and in this respect the I.O. Has recorded statement of Police official, hence on this ground too his case falls within the ambit of further probe. He lastly argued that the occurrence being cross one it is difficult to ascertain at this stage, as to who was aggressor and who is aggressed upon. He concluded his arguments by saying that as the accused in cross case FIR have been released on bail hence, under the rule of parity the present accused/petitioner also deserves to be released on bail.
5. On the other hand learned AAG assisted by learned counsel for the respondent/complainant vehemently rebutted the arguments by contending that the accused/petitioner is their co-villager, the occurrence took place in a broad day light and the report has been lodged promptly, hence the question of false implication, misidentification or concoction do not arise. He lastly argued that in presence of direct charge, recovery of blood stained earth from the places of both the deceased and 18 empties of 7.62 bore, FSL report a prima facie case is made out against the accused/petitioner and he does not deserve to be released on bail. He concluded that the cross case FIR No.345 has been lodged only to make the instant case a cross one and to take benefit of that cross case.
6. Arguments heard and record perused.
7. Perusal of the record reveals that the occurrence took place on 24-6-2014 at 0700 hours whereas the report has been lodged on the same day at 0820 hours. Muhammad Ali is the complainant of the instant case, who charged the accused/petitioner along with co-accused for commission of the offence. Perusal of FIR reveals that the accused/petitioner is directly charged in a promptly lodged report for murdering of deceaseds Mst. Mashala Bibi and Muhammad Yar Khan. The I.O.
From the place of occurrence collected blood stained earth from the place of both the deceased and 18 empties of 7.62 bore from the places of accused, which fully corroborate the version of FIR.
FSL report also depicts that the empties were fired from different weapons, which further strengthened participation of accused/petitioner along with co-accused. Post mortem reports of both the deceased depict intention of the accused/petitioner for committing their murder. Site plan, recovery of empties, blood stained earth, FSL report, medical evidence lead to the conclusion that a prima facie case exists against the accused/petitioner.
8. So far as the contention of learned counsel for the accused/petitioner regarding the plea of alibi is concerned, suffice it to say that the occurrence has taken place on 24-6-2014 at 0700 hours whereas the accused/petitioner is also serving as constable in local police Bannu, hence at this stage on tentative assessm ent, he could not get benefit of plea of alibi and it will further be thrashed out during trial.
9. Plea of cross version invariably, carries phenomena of self defence in it and when from record, it is not discernible that who has aggressed and who has acted in self defence, the parties are normally allowed bail. But in the instant case, on tentative assessment of the evidence, no such circumstance can be gathered except cross FIR. By raising the plea of cross- version, the occurrence is admitted. The plea of self-defence, if so raised, is yet to be established by the accused. When prosecution evidence prima facie connects the accused with commission of crime, entailing capital punishment and he himself admits the occurrence by taking plea of cross- version, then why mere cross FIR should be accepted as license for grant of bail, particularly, in view of prevailing law and order situation in society. Accused or every cross case cannot claim bail as a matter of right. Rather, facts of every cross case are to be tentatively scrutinized and assessed and then to be decided on its own merits. In this regard case of 'Nisar Muhammad Wassan and another v. The State' (1992 SCMR 501) and Arif Din v. Amil Khan and another' (2005 SCMR 1402) may be referred.
10. In view of above discussion, instant bail application is hereby dismissed.