' SHAHZAD AKBAR KHAN, J.--- Sher Ahmad Khan son of Qader Khan of Kotka Daraz Khel, is charged, alongwith others, under section. 302/324/34, P.P.C. Vide F.I.R. No,,306, dated 17-9-1998 of Police Station Mandan, Bannu, for the murder of Jehangir Badshah and attempt at the life of Naqibullah Khan complainant. The learned Special Judge, Bannu has refused to release him on bail per his order, dated 6-3-1999. Hence the application in hand for the same relief.
2. Naqibullah Khan,. Complainant while in injured condition lodged a report at the Emergency Room of Civil Hospital, Bannu only 35 minutes after the occurrence; that on 17-9-1998 at 11-25 hours he along with Jehangir Badshah son of Haji Badshah Khan after attending the Court were on their way home back on a motorcycle, driven by him while the said Jehangir Badshah was sitting backside. When at 11-25 hours they reached near Cant. Market, Kiramat Khan, Sher Ahmad Khan, Asghar Ali and Aziz-ur-Rehman, sons of Qadir Khan of Daraz Khel, Mandan, duly armed with 16 mm rifles and .12 bore shotguns, were found present, who on seeing them opened fire indiscriminately, with which the complainant and Jehangir Badshah were both hit. The latter, however, succumbed to the injuries at the spot, where after the accused decamped from the spot. Dispute at women- folk between the accused and the deceased was given to be the motive for the occurrence.
3. Learned counsel for the petitioner veheinently stressed the plea of alibi of the petitioner by contending that on the day of occurrence he was admitted in Surgical-C Unit of Hayat Shaheed Teaching Hospital, Peshawar, as is evident from his discharge card, which was thoroughly probed into and found correct by the Investigating Agency. He further referred to the affidavit of the complainant produced today in the Court wherein the complainant has exonerated all the accused by introducing a new story totally discordant with F.I.R. He, therefore, urged that these are sufficient factors pointing .Forcefully towards the innocence of the petitioner, which would be sufficient to entitle him to the concession of bail. In support of the aforesaid submissions, reliance was placed on the cases reported in PLD 1990 SC 83 and 1997 SCM R 1829. He was, as such, of the view that the case of the petitioner falls within the ambit of "further inquiry".
4. In reply, learned counsel for the complainant and State strenuously resisted the aforesaid submissions by contending that the petitioner is directly charged in the promptly lodged report of the complainant and the accusation duly gets strong support from the medical report of the deceased, who had sustained numerous injuries on his person. The plea of alibi raised by the petitioner could be properly adjudged at trial and that the subsequent development in the shape of affidavit sworn by the complainant with regard to the innocence of the petitioner and his co- accused is totally baseless, as had they been falsely implicated, the charge would never have been brought within half an hour. They further made submission that in the circumstances when the complainant had no enmity at all with the accused or any relationship with the deceased party, the strong possibility of his having been won-over cannot be ruled out.
5. Mr. Dost Muhammad Khan, learned counsel for respondent No,,2 has further drawn our attention to the Vakalatnama executed by the same complainant Naqeebullah Khan in his favor on 10-10- 1998 for the purpose of contesting bail application of the present petitioner in the Court of learned Special Judge, Bannu. This fact totally negates the contents of his affidavit, dated 1-5-1999 filed in this Court today.
6. We have given our anxious consideration to the arguments advanced by the learned counsel for petitioner and also learned counsel for complainant and State. The chief grounds of arguments for the petitioner are the plea of alibi and the affidavit submitted by the complainant Naqeebullah Khan which is placed on file. So far as the plea of alibi of the accused/petitioner is concerned, we do not feel it proper and advisable to make a critical analysis of its qua its correctness, authenticity or believability, because any such comments might adversely affect the case of either party during the trial. We, however, have no judicial disposition in view of the peculiar circumstances of this case to consider this plea for the purpose of bail, when the accused/petitioner is directly charged in a promptly lodged F.I.R. By a complainant who had no motive for falsely implicating the petitioner.
The prosecution version is supported by medical evidence, recovery of five empties of 16 mm freshly discharged and bloodstained earth from the spot.
7. The accused/petitioner obtained transitory bail from the Court of Sessions Judge, Peshawar on 24-9-1998, but he failed to appear before the Sessions Judge at Bannu for the confirmation of his bail. He long after the obtaining the transit bail offered himself for arrest before the local police of Police Station Cant. Bannu on 19-2-1999, as is evident from his arrest card on the file.
8. Complainant Naqeebullah had no enmity whatsoever with the petitioner and, thus, his promptly lodged version before the police within 45 minutes of occurrence should not be doubted at this stage. He also engaged a lawyer and gave him a Vakalatnama to contest the bail application of the petitioner in the Court of Sessions Judge/Special Judge, Bannu. His Vakalatnama is available on the file of Sessions Court. This contest by the complainant is completely discordant with his affidavit, in which he said that an unknown person had fired on them, but the police of Police Station Cant. did not record his such report and that later on relatives of the deceased Jehangir Badshah came and at their stance accused Karamat Khan, Sher Ahmad Khan, Asghar Ali and Aziz- urRehman were charged and his signature was obtained on the report. If his signature was obtained on a wrong report and contrary to his version, there was no preventive force which could restrain him from making an immediate affidavit. He should have not contested the bail application of present petitioner ' in the Court of Sessions Judge, Bannu. In these circumstances, the affidavit of complainant can be of no help to the petitioner.
9. In the light of above discussion, we feel that presently reasonable grounds are existing to connect the petitioner with the commission of offence which falls within the prohibitory clause of section 497, Cr.P.C. This application is, therefore, dismissed.