MUHAMMAD DAUD KHAN, J.---Accused/petitioner, Nisar Ali, involved in case FIR No. 309, dated 27- 7-2014, under sections 324, P.P.C. Of Police Station Inspector Haibat Ali Shaheed, Pezu, Lakki Marwat, was refused bail by the learned two courts below. He has moved this further application through counsel for his release on bail.
2. The allegations against the accused-petitioner, as per FIR, referred to above, are that on 27-7- 2014 at about 18.15 hours, near the house of complainant Accused/petitioner Nisar Ali armed with repeater started firing at the complainant, relative Rizwanullah and nephew Mamoon Ahmad Jan, as a result of which nephew Rizwanullah hit and severely injured, whereas they luckily escaped unhurt. The accused/petitioner decamped from the spot, whereas the complainant party could not retaliate due to empty handed. Motive behind the offence as alleged by the complainant was quarrel between them on the children. Report of the complainant was reduced in shape of murasila by the SHO Gul Muhammad Khan, at 18.30 hours, which culminated into above mentioned FIR..
3. On the same date at 1900 hours, Zard Ali. Khan, reported the matter to the local police to the effect that at 18.10 hours, when he was present inside his house, he heard the voice of fireshots, at which he came out from the house, he saw Adil Khan, armed with repeater Mamoon armed with Kalashnikov were firing at his house and on seening him, they also made firing at him in order to commit his Qatl-i-amd, but he ran towards his house and escaped unhurt. Apart from him the occurrence is stated to have been witnessed by Tehsil Khan and Majeed Khan. The report of the Zard Ali was reduced in shape of Mursila and sent to the Police Station, Pezu, which culminated in shape of cross FIR No. 310 under section 324/34, P.P.C.
4. After having been failed to obtain bail from the two courts below, the petitioner moved instant bail petition before this Court. The complainant was served through his brother, but he did not turn up, hence, the instant petition is taken up for hearing.
5. Learned counsel for petitioner argued that it is a cross case of FIR No. 310 and two different versions have been mentioned in the respective FIRs, hence, it could not be determined at this stage, which version is correct. He further argued that as per medical report the injured received group injuries, while as per site plan distance between the injured and petitioner has been shown 69 feet, and from such a distance such like group injuries are impossible. He added that a passerby namely Hamidullah has also sustained injuries and as per his statement before the local police there was cross-firing between two groups, hence, on this ground too it is a case of further inquiry. He went on to say that the petitioner is aged about 16 years and is juvenile, hence, under the Juvenile Justice System Ordinance he deserves to be released on bail. He lastly argued that petitioner is a student of intermediate, hence, he is entitled for the concession of bail.
6. On the other hand learned Assistant A.-G. For the state vehemently rebutted the arguments advanced by learned counsel for petitioner and contended that the sole accused/petitioner is directly charged in a promptly lodged day light occurrence for effective firing, which resulted into severe injuries to the complainant and he is still under treatment. He further added that parties being co-villagers there is no question of misidentification. He went on to say that as per card of arrest his age is 17 years and not entitled for bail under Juvenile Law. He further contended that statement of passerby/injured Hamidullah does not contradict the complainant's version rather strengthen. He lastly contended that medical report, site plan, bullet marks in the line of fire, blood stained garments of injured further support the prosecution version, hence the accused/petitioner does not deserve to be released on bail.
7. I have heard arguments of learned counsel for petitioner and learned Assistant A.-G. For the State and perused the record with their valuable assistance.
8. Perusal of the record divulges that the occurrence has taken place at 18.15 hours, whereas the report has been lodged at 1830 hours, hence, there is no proof regarding consultation or deliberation, which may result for false implication of complainant. Nasir Khan is the complainant of the instant case, whereas Rizwanullah is injured, apart from them other eye-witnesses have also seen the occurrence. During the occurrence a passerby namely Hamidullah also sustained injury, his statement also strengthen the fact that the occurrence took place at the crucial date, time and place.As per site plan in the line of fire, at point "B", eight bullet marks, at point C, three bullet marks and at the gate one bullet mark were also found. Hence, the site plan corroborates the version of FIR. The contention of learned counsel for petitioner that from a distance of 69 feet, no such like fatal injury could be caused is misconceived, as the accused/petitioner has been shown having repeater, which is sophisticated weapon. Medical report reveals that the injured received seven injuries four on chest area and three in abdominal area. This report further suggest conduct of accused/ petitioner, that how brutally he attacked.
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. 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 of 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. The learned counsel for petitioner during arguments produced Secondary School certification issued from BISE Bannu and contended that the petitioner is entitled for concession of bail under Juvenile Justice System Ordinance. Perusal of certificate reveals that the petitioner's age was 17 years 5 months and 15 days, on the date of occurrence, whereas according to section 10(5) of the Juvenile Justice System Ordinance, 2000 a child under the age of 15 years is entitled for bail. Hence, on this ground too, he is not entitled for concession of bail.
11. Besides that the accused/petitioner remained absconder for a period of two months, for which no explanation much less plausible one has been furnished by him. It is settled law that a fugitive from law, who fails to provide plausible explanation for his long abscondence, loses some of his procedural as well as substantive rights and he may be declined bail, only on the ground of abscondence, leaving apart, the merits of the case.
12. It appears from the record that challan has already been put in Court but in the meanwhile, case file was requisitioned by this Court in connection with the instant petition. Much has been argued before me from either side, but discussion on all these points would amount to deeper appreciation of evidence which has always been deprecated by the Hon'ble Superior Courts at bail stage, particularly, at a stage when trial has commenced or is likely to commence in the near future, because any expression on merits at such stage, would cause prejudice to either party, at trial stage and this principle has been firmly and clearly laid down by the apex Court in Muhammad Ismail's case (PLD 1989 SC 585).
13. Considering the bail matter of an accused person involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail, unless case is covered by any of the provisions in subsection (2) of section 497, Cr.P.C. Bail in cases falling in the Prohibitory Clause of section 497(1), Cr.P.C. Is not to be granted as a matter of course with a simple sentence that it is a case of further inquiry, without keeping in view the entire provisions of section 497, Cr.P.C. The discretion vested in the Court, is to be exercised in a judicial fashion, in the light of the facts of each case. Where the prosecution collects enough material to constitute reasonable grounds connecting the accused with the alleged offence, Courts are always slow to accede to the request for bail.
14. The only fact of non-recovery of crime empties from the place of occurrence cannot entitle the accused/petitioner for the concession of bail, as the place of accused has been shown near the gate of house of petitioner, whereas oral statements as well as documentary material is in favour of prosecution and the offence carries capital punishment.
15. For the reasons discussed above, on the face of it, reasonable grounds exist for believing that the accused/petitioner has committed an offence which comes within the prohibitory clause of section 497(1), Cr.P.C, resultantly, the petition for the grant of bail stands dismissed. Needless to mention that this order being tentative in nature would have no effect upon the merits of the case.