' Sahib Jan petitioner, his two brothers and nephew are involved in a case under section 302/307/34, P.P.C. Vide F.I.R. No,57 lodged on 17-6-1988 at 8-45 hours in Police Station Chaudhwan in D.I. Khan District. Sahib Jan has moved this petition for bail.
2. The prosecution version is that on 17-6-1988 at 7-00 a.m. Muhammad Jan complainant, Rabnawaz, Sadullah and Subedar were engaged in raising embankment of his land in village, Garah Alam Khan, by means of two tractors. In the meantime, Sahib Jan petitioner, his two brothers, namely, Abdur Rehman, Muhammad Jan and his nephew, Gulla attempted to stop the complainant party from the Lathbandi (embankment) and having failed in that each one of them fired one shot at the complainant party. The fire shot of the petitioner, however, proved effective killing Rabnawaz deceased on the spot while the fire shots of the remaining accused went amiss.
The motive for the occurrence is a dispute over the land in which the occurrence had taken place.
3. The learned Sessions Judge to whom the bail petition on behalf of all the four accused including the petitioner was moved admitted the three co-accused of the petitioner to bail but rejected his plea on two grounds; firstly, that an effective role has been attributed to him and, secondly, that the petitioner had absconded after the occurrence.
4. S. Zafar Abbas Zaidi, the learned counsel for the petitioner has contended that the investigation conducted in this case suffered from mala fides; that the learned Sessions Judge has altogether excluded from his consideration the existence of a cross-case registered vide F.I.R. No, 58 at the instance of Abdur Rehman, a co-accused of the petitioner who had received fire-arm injuries and; that the ocular evidence as also the medico-legal report does not corroborate version of the prosecution and, therefore, the petitioner was entitled to the concession of bail.
5. As against this Mr. Muhammad Ibrahim Khan Alizai, the learned counsel appearing on behalf of the State, has opposed the plea of bail raised on behalf of the petitioner and maintained that the cross-case was just a counterblast to claim the concession of bail in the instant case and that the two injuries alleged to have been sustained by one of the co-accused of the petitioner had been confirmed by the Investigating Officer to be self-inflicted.
6. In support of the first contention, Mr. Zaidi has argued that if the accused-petitioner had in fact been present at the spot he could also like his two co-accused have been stopped from leaving the spot after the occurrence. He also placed reliance on the medico-legal report recorded in the cross-case registered vide F.I.R. No, 58 in Police Station Chaudhwan on the same day. In the medico-legal report, Abdur Rehman co-accused of the petitioner is shown to have sustained two wounds on right forearm anteriorly and posteriorly both 1" x 1" in length. Upon the query by the Investigating Officer, the Doctor has further clarified that the two wounds aforesaid have been caused with sharp weapon.
7. The death of the deceased in this case has not been denied by fire-arm injuries. It has been sought to be proved from ocular testimony as well as from medical evidence. The question as to why the petitioner was not arrested on the spot as was done qua his co-accused is likely to be adjudged at the time of trial. The accused-petitioner has been charged for effective firing at the deceased who is also alleged to have absconded after the occurrence which is borne out from the record. The question of mala fides and also of the genuineness or otherwise of the cross-case shall also be examined at the stage of trial. Suffice it to say that the petitioner has been directly charged for effective firing at the deceased which allegations find ample support from the statements of the P.Ws. Recorded under section 161, Cr.P.C. Particularly the two drivers of the tractors, namely, Aslam and Abdul Latif P.Ws.
8. The facts disclose that prima facie the petitioner is accused of the murder of the deceased, therefore, is not entitled to bail. The application is rejected.