' Petitioner herein, is accused in case No,79, dated 28-5-1998 of Police Station Lachi under murder charge, as well, for effectively attempting at the life of Javed Khan complainant of the case and one Shahzad Gul, a passerby.
' In the report, besides the present petitioner, Masud Gul, Safaid Gull and Mutahir Gull are charged for the. Offence.
2. Briefly given facts are that complainant along with his father Usman and brother Nizam Khan had come in their motor car and had parked the same were proceeding to their house, when the forenamed accused duly armed who were sitting in the shop of Badshah Gull, started firing, resulting in injuries to Javed Khan, Usman Khan, his father and a passerby. Of them Usman has succumbed to the injuries and died,
3. Bail is sought on the grounds that petitioner is innocent and old man of nearing 70 years of age, and that he is complainant in case F.I.R. No,81 where he has charged Javed Khan the present complainer for firing at him ineffectively. Next, there is another F.I.R. Bearing No,80 where Hafiz Daud Gull, son of the present petitioner has lodged the report for causing injuries on his person and also for injuries caused to Mst. Gul Muhmand and for such injuries three sons of Usman deceased of the instant case stand charged. It was argued that keeping in view the two F.I.Rs, i,e, 80 and 81 of Police Station "Lachi" of the same date where time of occurrence in the two reports corresponds to the time of occurrence of the present case and where parties in the three F.I.Rs, are almost the same and that where venue of three incidents situate within a span of two hundred and eighty paces, it can be safely inferred that the three occurrences are counter-version and that the petitioner would be entitled to bail because it is yet to be determined as to which of the party has started aggression.
4. Learned counsel for the petitioner also made reference to the site plans of the three cases, in order to substantiate his submission regarding his assertions as to the existence of cross-cases.
More particularly it was submitted that the site plan of case F.I.R. No,79 where petitioner is an accused does not correspond to the narration of facts as given in the report. It was argued that Javed complainant was found injured at point (C) which is at the distance of 120 paces from the place of firing and in a different street and that if firing was made from points 4 to 7 at point "A", the building of the Post Office which is located closed behind point "A" should have been hit.
5. The contentions raised by the petitioner side, were vehemently opposed by the learned counsel for the complainant as well as counsel for the State. They argued that at this stage any finding as to the existence of cross-case by this Court would cause damage to the case of the prosecution.
Next, that challah is complete and is to be filed in the trial Court soon, therefore too, the petitioner is not entitled to be released on bail. They also argued that the occurrence in case F.I.R. No,81 has taken place in the house of Badshah Gull petitioner which is at a considerable distance from the spot of the instant case.
' The conduct of petitioner was also taken exception of as to why he remained present in his house till 11-00 a.m. When police went to his house in pursuance of registration of case vide F.I.R. No,79.
6. I have heard the learned counsel for the parties at sufficient length and has gone through the record. On the last hearing i,e, on 18-9-1998 I had summoned Hakeem Jan, A.S.-I. Who appeared today and in reply to the single question about the distance of spot of the case F.I.Rs, Nos.79 and 80, he stated the distance to be 280 paces.
7. The contention if F.I.R. No,80, the complainant wherein is Hafiz Daud Gul, is or not a cross-case, I doubt that it would be rather premature to give any tentative finding on the subject.
8. I would first take up the facts as coming out from the record of the present case. One person is killed while two are wounded including the complainant. Four persons are charged and number of injuries sustained on the complainant side cannot be said to be disproportionate to the number of accused. The presence of complainant Javed at point "C" would be explained at the trial and if not, the defense can take advantage of, but not at\ present. The case of the present petitioner, in the light of F.LR. No,81, where he has accepted his presence and the presence of Javed, complainant of the present case and without any reference to firing being made from his side, by itself is sufficient to disentitle him to the concession of bail on the plea of cross-case keeping in view the allegation and charge made against him.
' Petitioner cannot take any benefit of case No,80 as he is not cited as a witness in the said case. It is now well-established rule that the opinion of the police which has been recorded at the tail end of the case F.I.R. No,81, that the two cases are cross-cases, has got no legal sanctity. It is for the Court both at pre-trial stage and on the conclusion of the trial to evaluate evidence of the parties and give its finding either tentative or final as to the existence of cross-case. Moreover, where an accused person, like in the present case, is not a witness in so-called cross-case or connected case, he cannot press into service r the principle where generally bail is granted on the ground that the question of aggression and being aggressed upon require further inquiry.
' It is not mere registration of cross-case by or on behalf of accused party which would give him an argument to ask for bail on such ground. I purposely intend not to further dilate on the facts of the case whether it be F.I.R. No,79 or 80 or 81, lest it may cause prejudice to the case of the either side which is the job of the trial Court. On tentative appraisal of record as it now exists, I am of the view that there are reasonable grounds to believe that the petitioner is guilty of an offence, the punishment whereof would fall within the prohibitory clause of section 497, Cr.P.C. This application for the grant of bail is rejected.