' This is an application for cancellation of bail, allowed to the accused-respondents in a case registered under section 307/34, P.P.C. Vide F.I.R. No,32 dated 15-1-1989 at Police Station Swabi.
2. The F.I.R. Shows that the dispute erupted suddenly when a minor daughter of Naushad complainant wanted to throw rubbish in a deserted house intervening his house and that of the accused. She was prevented from doing so and on return she complained to her father about what had happened. The father accompanied by his brothers Tajbar Khan and Gulbar Khan proceeded to the spot and alongwith them Banaras Khan son of Sarfaraz Khan also came there. On seeing them the accused Jehanzeb, Aurangzeb, Faqir Gul and Faqir Muhammad fired on them from `Klashnikov' and `Topaks'. They got behind a wall to take refuge but Banaras Khan got hit with the shots of accused Jehanzeb.
3. The injured was examined and found to have suffered a grievous wound. The doctor, however, did not state his reasons for designating the injury to be grievous.
4. The accused moved the Court of Illaqa Magistrate for bail and it was allowed observing that the injury was not on any vital part of the body and the doctor had also not given his reasons for calling the injury to be grievous. It was also observed that mere absconsion in such circusmtances could not stand in the way of allowing bail.
5. The complainant applied to the Court of Additional Sessions Judge for cancellation of bail, but almost for the same reasons the learned Court declined to recall bail. Thereafter this application was here made.
6. The Hon'ble Chief Justice who heard the application at admission stage admitted it as against Jehanzeb accused as the effective shot had been attributed to him. As against the rest of the accused the application was dismissed in limine. Now, therefore, it is Jehanzeb accused only against whom the case has to be considered to determine the propriety of the order of bail.
7. Learned counsel for the petitioner has contended that the shot of accused Jehanzeb had proved effective resulting in an injury described by the doctor to be grievous. The injured was first admitted for treatment at Swabi and later- on shifted to Peshawar where he was treated at Lady Reading Hospital and discharged on 9-2-1989. For a total period of about 25 days, calculated from the date of occurrence, had thus the injured remained in hospital. As such, even if the doctor had not indicated reasons the injury could be termed as grievous. In addition he argued that the accused disappeared and remained fugitive from law, for almost 1 year. They surrendered and were allowed bail after 4/5 days. So considering the case in total context, it was not a case fit to allow bail, because the incident, as it occurred, was reported, the injured remained in hospital for a good length of time and was cured after undergoing operation at the Post-Graduate Medical Institute, Lady Reading Hosptial, Peshawar and the accused went into hiding and remained fugitive for about a year.
8. From the other side it has been contended that the shots, as alleged, were fired from `Kalashnikov' and Topaks' and where a weapon like Klashnikov' is being used it is not possible to carefully see as to whose shot is landing where. Further it was unbelievable that the complainant or for that matter the injured person had been able to see by whose shot he had been hit.
9. Prima fade the case appears tilted in favour of the prosecution, because the injured as also the complainant had positively asserted that the shot of accused Jehanzeb had caused the injury and the opinion of the doctor was that it was a grievous injury. This is in addition to the fact that the accused disappeared and for a period of more than a year continued absconding. Accordingly, I am inclined to recall bail and direct that the accused-respondent Jehanzeb be taken into custody forthwith.
Bail cancelled.