MUHAMMAD IJAZ KHAN, J:- Through this petition, the petitioner seeks his post-arrest bail on the fresh ground of principle of consistency in case FIR No.494 dated 28.07.2024 registered under sections 302, 324, 337A, 337D,337A (i),337F (i)(ii)(v), 147,148,149 PPC and section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Khurshid Khan Shaheed Khwazakhela, District Swat.
2. On 28.07.2024 at 21:45 hours, the complainant/respondent No.2 namely Fazal Subhan made a report to police at emergency ward of Khwaza Khela hospital to the effect that on the day of occurrence, he was present in his house and on hearing commotion, he came out of his house and saw co-accused Behrobar, Asghar, Shah Hussain, Umar Zaib and the petitioner Jehan Sher were on their way to their house, after beating his son Syed Atif Shah. The complainant along with elders of the locality proceeded to the house of accused party to lodge a protest over the beating of his son and as soon as the complainant-party reached to the spot, the accused named above, being duly armed with firearms, started indiscriminate firing upon them. Due to firing of the accused, the injured Fazal Subhan, Zafar Ali, Mahroof Shah, Bacha Rahman, Ashraf Ali, Sudais, Nadar Sher, Zia-ur- Rahman and Dildar Hussain sustained firearm injuries on different parts of their bodies. Because of firing of accused Behrobar, his uncle Khurshid Ali got hit and died on the spot. The occurrence has been witnessed by the injured PWs including the complainant. The motive behind the occurrence was disclosed to be verbal altercation which took place between the parties over an issue of beating of son of the complainant. Later, on the injured Bacha Rahman succumbed to his injuries in the hospital. Murasila' was drafted which culminated into ibid FIR registered against the present petitioner and his co-accused.
3. Arguments heard and record perused.
4. The record would show that initially the present petitioner along with co-accused Shah Hussain approached to this Court for grant of bail vide Cr.M No.519-M/2024 and similarly, co-accused namely Asghar Ali and another also approached to this Court for grant of bail vide Cr.M No.579- M/2024 and both those bail petitions were dismissed by this Court vide consolidated order dated 08.10.2024. It would be relevant to mention here that it was the case of both the sets of the accused in the aforesaid bail petitions that it is the case of cross version, however, said plea of both the sets of accused was not appreciated by this Court in their favor and as such their bail petitions were dismissed by this Court. The record further shows that co-accused Asghar Ali and another challenged the aforesaid order of this Court before the Apex Court through Criminal Petition No.1186 of 2024, which came up for hearing before the Apex Court on 16.12.2024 and the Apex Court was pleased to allow the said petition by holding that the instant case is one of cross version vide order dated 16.12.2024. In view of the above development, the petitioner has now approached to this Court for his release on bail on the fresh ground of principle of consistency.
5. It is an undisputed fact that the role attributed to the present petitioner as well as to the co- accused Asghar Ali etc. to whom bail has already been granted by the Apex Court is identical. It is also an admitted fact that it was the plea of the present petitioner as well as of the co-accused in earlier round that it is a case of cross version, however, this Court did not appreciate the same in their favor, however, when the same plea was agitated by co-accused Asghar Ali etc. before the Apex Court, the same was appreciated in their favor and they were granted bail by the Apex Court vide order dated 16.12.2024 passed in Criminal Petition No.1186 of 2024, therefore, in view of the above, when at the time of hearing of the earlier bail petition of the petitioner by this Court on 08.10.2024, the ground for grant of bail on the principle of consistency was not available to the accused/ petitioner and it was much thereafter on 16.12.2024 when the said ground has been made available to the petitioner, therefore, such ground could be considered as a fresh ground for the grant of bail. It may be reiterated that ground is always considered as a fresh ground, which was not available to the petitioner in the earlier round. Needless to mention here that if a ground was available in the earlier round and the same has not been taken in the earlier round, then such ground could not be considered as a fresh ground, however, in the present case, the situation is altogether different as the fresh ground i.e., the principle of consistency, was not available to the present petitioner in the earlier round, therefore, this bail application on the fresh ground is maintainable and thus the ground of principle of consistency could be considered for grant of bail to the accused/ petitioner.
6. [n view of the above, when the role of the present petitioner and that of co-accused Asghar Ali etc. is identical besides they are charged in the same FIR and when the instant incident has been held as one of cross version by the Apex Court while granting bail to co-accused Asghar Ali etc. then the present petitioner is also entitled for the same benefit. In this view of the matter, the petitioner' case cannot be treated differently and hence, on the basis of the rule of consistency, the present accused/petitioner is also entitled to the concession of bail. In the case titled "Abid Vs. The State and others" reported as 2016 SCMR 907, the Apex Court has held that: "Co-accused who had also been attributed firearm injuries had already been allowed bail, therefore case of accused being at par with the said co-accused, also deserved the same treatment."
7. It would also be relevant to mention here that one of the co-accused namely Behrobar has also approached to this Court for grant of bail when by then the order of the Apex Court dated 16.12.2024 was in field and this Court vide order dated 12.03.2025 in Cr.M No.107-M/2025 has granted bail to said accused namely Bahrober on the ground, which prevailed with the Apex Court, therefore, in the given facts and circumstances, the present accused/ petitioner is also entitled to the concession of bail.
8. In light of the foregoing discussion, this bail petition is allowed and the petitioner is directed to be released on bail subject to furnishing bail bonds in the sum of Rs.100,000/- (one hundred thousand), with two sureties each, in the like amount to satisfaction of the learned Trial Court/ illaqa Judicial Magistrate/MoD who shall ensure that the sureties are local, reliable and men of means.