This order will also dispose of Cr. Miscellaneous No. 405/83.
2. Rab Nawaz Khan son of Muhammad Hayat, resident of Matkani, p. S. Tntakan. Malakand Division, has applied for bail in a case under section 302/323/324/34, P. P. C. Registered vide F. I. R. No. 8, dated 3rd June, 198:3. 1n this b'.
1. R., the accused-petitioner is charged for the murder of Sher Zamin Khan alongwith Haq Nawaz alias `Chiri' son of Hayat Khan and Amir Rahim son of Said Karim Khan, residents of Matkani.
3. "The accused-petitioner alongwith Haq Nawaz alias Chiri and Amir Rahim accused applied for bail to M. I. C. Malakand at Batkhela. He only considered the bail application of the accused under section 3021 34. P. P. C. And rejected the same vide order, dated 11th June, 1983. 13a however, recorded in the said order that he would not discuss bail application of the accused as regards section 323/324; 34, P. P. C. 'and directed the accused to apply for bail to the Deputy Commissioner under P.A.T.A. Regulation.
4. Against the above order of the Magistrate, ail the accused went to the Court of Sessions Judge, Malakand at Batkhela who too did not discuss their application so far as section 323; 324/34, P. P. C.
Are concerned. He only dealt with their application under section 302/34. P. P. C. And rejected the same with respect to Rab Nawaz petitioner. He however, accepted the bail application of Haq Nawaz alias Chin and Amir Rahim and admitted them to bail in the sum of Rs. 50,000 with two sureties for the like amount each vide order, dated 15th June, 1983.
5. It is against the above order of the Sessions Judge that Rab Nawaz petitioner has approached this Court for bail (Cr. Miscellatxeous No. 417/ 83) and Shah Jee Mohtaj, complainant, has filed cancellation application against Haq Nawaz alias Chin and Amir Rahim (Cr. Miscel--laneous No. 405/83).
6. It may be. Mentioned here that one Azam Khan, nephew of Rab Nawaz petitioner had lodged F. I.
R. No. 9 on the same day i.e. 3rd June, 1983 charging Shah lee Mohtaj, Iqbal, Khaliqdad and Majidullah for injuring Rab Nawaz, Haq Nawaz alias Chiri, Amir Rahim Mst. Jamila and Msi. Fazeelat.
It is also important to note that all these accused are on bail.
7. Learned counsel appearing for Rab Nawaz petitioner (Mutts Muhammad Idrees) argued that co- accused of the petitioner, namely, Haq Nawaz and Amir Rahim were also injured but their injuries were suppressed by the complainant and no explanation was given in F. I. R. No. 8 lodged in the present case, which reacts on the varacity of the prosecution case and makes at arguable for the purposes of hail that the learned trial judge on the one hand held that it was aggressor; of 'free fighting' and on the other held the petitioner primafacie an aggressor; that the occurrence allegedly took place near the mosque in presence of more than 200 persons but not a single independent witness has been cited in the case; and that in view of the judicial precedent by the Supreme Court, the petitioner is entitled to bail on this score alone.
8. Mr. Habibur Rehman, learned counsel appearing for the com--plainant inter alia contended that the accused-respondents Haq Nawaz alias Chiri and Amir Rahim have facilitated the murder - by catching hold of the deceased and the minor injuries on their persons clearly establish their participation in the crime and thus, they are liable for sharing the common intention under section 34, P. P. C. With the principal accused, viz. Rab Nawaz petitioner.
9. Mian Muhammad Ajmal, Law Officer argued the only point that this Court has got no jurisdiction to entertain the present applications for bail and cancellation of bail. He relied upon Hazrat Ghani and 5 others v. Magistrate First Class, Timargarah and 4 others (PLD 1980 Pesh: 183) and argued that under the provincially Administered Tribal Area Criminal Laws (Special Provisions) Regulation, 1975 (Regulation 1 of 1975) the ordinary Courts have got no jurisdiction to entertain such applications. Learned counsel appearing for Rab Nawaz petitioner met this objection by produc-- ing an authority reported in Ghulam Muhammad and 3 others v. The State (P L D19.79 Quetta 1) wherein the following observations were made :- "About the pretrial stage, suffice it to say that since the Ordinance has nothing to do with the cases till they are drawn within the ambit of the Ordinance in the manner hereinbefore mentioned, the provisions of the Code would apply in entirety in all cases in which regular police entrusted with the investigation of the case and general principles thereof would apply to other agencies such as levies force, and the executive authorities, investigating into the cases in this province."
9. I have given my anxious consideration to the arguments of the learned counsel for the parties and have also gone through the autho--rities cited at the Bar. The authority relied upon by the Law Officer is distinguishable with the facts of the case in hand. In the cited authority the E. A. C./M. I. C.
Had admitted all the petitioners and accused of the cross-case to bail but in the instant case the Magistrate concerned and the learned Sessions Judge only dealt with application of the accused- - respondents Haq Nawz alias Chiri and Amir Rahim and Rab Nawaz petitioner under section 302/34, P.P.C. And with regard to section 323/324/34, P. P. C. Both the forums directed the accused to approach the Deputy Commissioner under P.A.T.A. Regulation. Learned counsel for the accused- -petitioner argued and rightly too that in the case in hand the investi--gation is still going on and the Deputy Commissioner .Concerned has not yet taken cognizance of the case, and unless and until a Deputy Commissioner under Regulation No. 1 of 1975 does not take cognizance of a certain case, the ordinary Courts would have the jurisdiction to 't entertain bail applications etc. The authority cited by the learned counsel for the petitioner and referred to above would in my view, apply on all four to the facts of the. Present case. Therefore, I hold that since the Deputy Commissioner has not yet taken cognizance of the case in hand, which is still under investigation, all the ordinary Courts would have jurisdiction to entertain such like applications.
10. Reverting to the case on facts, I hold that it is a cross-case to F. I. R. No. 9 of the same date, time and place; the accused of that case have been enlarged on bail, no independent witness has been cited in the case and the injuries on the persons of the accused-respondents and the women folk of the petitioner's family, would entitle the petitioner to be released on bail having a reference to the rule of consistency in such like cases, as held by the Supreme Court in many cases. I therefore, accept the application of Rab Nawaz (Cr. Miscellaneous No. 417/83) and admit him to bail in the sum of Rs. 50,000 with two sureties for the like amount each, to the satisfaction of the Illaqa/Duty Magistrate.
11. Bail cancellation application (Cr. Miscellaneous No. 405/83) against accused-respondents Haq Nawaz alias Chiri and Amir Rahim being without any force is hereby rejected.