' Ajmal Khan son of Mir Baz Khan of Bachkan Ahmed Zai, alongwith another Khan Bahadur son of Sher Azam, is charged for the murder of Asmatullah that took place on 19-1-1996 at 14-30 hours within the limits of Bazar Naurang, the report whereof was lodged by Bahadur Khan complainant, the brother of Asmatullah deceased at Serial No,9 of Police Station Naurang.
2. Khan Bahadur is reported to be still absconding while Ajmal Khan was released on bail by the Courts below. Through this petition, Bahadur Khan complainant seeks the cancellation of his bail.
3. It is argued on behalf of the complainant that the occurrence is witnessed by two eye-witnesses, the statements whereof are duly corroborated by the post-mortem report, the plausible motive and the abscondence of the respondent for 14 days during which he remained absent from the school where he was posted at the time of occurrence. Further, that the plea of alibi should not have been brought into consideration at this stage.
4. The learned counsel for the respondent while duly supported by the learned State Counsel argued that the respondent being a school teacher was available at the time of occurrence in his school and his subsequent leave for 14 days till his arrest was simply due to the charge that had been brought against him, of murder. They also challenged the version of so-called eye-witnesses saying that they were not present on the spot and had brought about the charge on the basis of consultation, deliberation and previous enmity between the parties.
5. I would not go into all the detailed intricacies of the case argued before me lest, I enter into making any expression yet one glaring aspect cannot be ignored even at this stage irrespective of the plea of alibi. The distance between the victim and the assailants is six paces as per site plan yet the injuries sustained by the deceased bore charring marks. Till this discrepancy between the F.I.R, the site-plan and the post-mortem report is settled at trial, the respondent may remain on bail. It is not a fit case where interference should be done under subsection (5) of section 497, Cr.P.C. Which otherwise is discretionary and not mandatory. The application is rejected.