Muhammad Bashir Khan Jehangiri, J.- Sahib Jan petitioner, his two brothers and a nephew are involved in a case under sections 302/307/34 P.P.C, vide F.I.R. No.57 lodged on 17.6.1988 at 8.45 hours/n 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 lands 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 occurrenc 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 and absconded after the occurrence.
4. S.Zafar Abbas Zaidi, the learned counsel for the petitioner has contended that the investigation consecutcd in this case suffered from malafide; that the learned Sessions Judge has aItogether 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 medicolegal 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 corss-casc was just a counter-blast 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- inflected.
6. In support of the first contention, Mr. Zaidi has argued that if the accused-Petitioncr 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 medicolegal report recorded in the cross-case registered vide F.I.R. No.58 in Police Station Chaudhwan on the same day. In the medicolegal report, Abdur Rehman co-accused of the petitioner is shown to have sustained two wounds on right forearm anteriorly and posteriorly both 1 "xl" in length. Upon te 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 firearm 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 by his co-accused is likely to be adjudged at the time of trial. The accused-Pctitioner 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 malafide 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 PWs recorded u/s 161 Cr.P.C, particularly the two drivers of the tractors, namely, Aslam and Abdul Latif PWs.
6. The facts disclosed that prima facie the petitioner is accused of the murder of the deceased, therefore, is not entitled ter bail. The application is rejected.