' TARIQ PARVEZ, J.---This common judgment would dispose of four connected matters as they have arisen out of four orders out of two F.I.Rs, bearing Nos.15 and 16 dated 24-1-2001 and because both the F.I.Rs, are cross-versions of two sides.
2. F.I.R. No,15 is made by Adam Khan at 14-00 hours on 24-1-2001 in offence under sections 324/148/149, P.P.C. Where he stated that he alongwith his sons Muhammad Usman and Inamullah were present near their shop when in the meanwhile Motorcar bearing No,444/BUA white colour came and was parked near the it.Two persons clad in veils got down and then they threw away their veils. They were Abdul Waheed and Rabiaz Khan both armed with Kalashnikovs were accompanied by two unknown persons, of which one was armed with Kalashnikov while the other with 30 bore pistol. Abdul Waheed s said to have raised lalkara followed by firing by all the persons but because the complainant party took shelter in their shop, they escaped unhurt. Accused after the occurrence decamped and when the complainant party came out from the shop, they allegedly noticed the front screen of the motorcar broken and two unidentified persons lying injured allegedly wounded with firing of Abdul Waheed and Rabiaz. It was further alleged that Said Rahman, Sher Ayaz and Arifullah who were present in the 'morchas' of their house also fired. Motive given was blood-feud enmity.
3. F.I.R. No, 16 was made on 24-1-2001 at 15-00 hours on the complaint of Said Rahman where he has charged eight persons, namely, Adam Khan, Umar Khan, Sher Azam, Usman, Sher Ayaz, Inamullah, Israfeel and Nazir Khan, for effectively attempting at the lives of Nisar Ahmad and Shafi Ayaz, both companion of Said Rahman complainant. Motive given was again blood-feud enmity.
4. It appears that six persons are charged in case F.I.R. No,15 while eight persons in case F.I.R. No,16.
In Criminal Miscellaneous (B.C.A. No,56 of 2001), Said Rahman complainant of case F.I.R. No,16 has prayed for the cancellation of bail granted to Adam Khan, Muhammad Usman and Inamullah by Judge Special Court Bannu on 9-2-2001, while in Criminal Miscellaneous B.C.A. No,57 of 2001, he has prayed for the cancellation of bail of five remaining accused named above.
' In Criminal Miscellaneous B.C.A. No,89 of 2001, Adam Khan complainant of case F.I.R. No,15 has come up with prayer of cancellation or bail granted to accused, namely, Said Rahman, Nisar Ahmad and Shah Fayyaz alias Shafi Ayaz, whereas in Criminal Miscellaneous B.C.A. No,90 of 2001 he has prayed for the cancellation of bail of remaining accused of F.I.R. No,15.
5. Pir Liaqat Ali Shah, learned counsel appearing for cancellation of bail of accused Adam Khan and others; before arguing the case on merits, submitted that in view of changed administration of criminal justice under the Islamic Law where complainant has been given the right of Qisas, of compounding the offence and of waiver, bail granted to the accused/respondents without notice to the complainant and victim of the crime would be illegal and because in this case the two injured, namely, Nisar Ahmad and Shah Fayyaz were not arrayed as respondents before the Judge Special Court, bail allowed to them should be cancelled on this score atone. On merits, he argued that all the eight accused/respondents have been specifically attributed the role of firing resulting in injuries to two persons on the complainant side, namely, Nisar Ahmad and Shah Fayyaz. It is argued that investigation has dishonestly omitted to show recovery of empties while preparing the site plan. It is argued that although F.I.R. No,16 appears to have recorded at 15-00 hours, i,e, after four hours of the occurrence, but it is there on the record in the shape of Mad No,9 dated 24-1-2001 that the police was informed about the occurrence at 12-00 noon, hence the delay is explainable.
He also argued that the two injured, namely, Nisar Ahmad and Shah Fayyaz, both disinterested witnesses, have also supported the case of the complainant.
6. Mr. Dost Muhammad Khan, Advocate appearing for respondents in case F.I.R. No,16 and for complainant in case F.I.R. No,15 against Said Rahman and others has argued that aggression has been launched by the respondents as Adam Khan complainant and his sons were present in their shop. It is argued that the site plans prepared in both the cases would support the version of the complainant, namely, Adam Khan.
7. It is argued that two injured of case F.I.R. No,16 are said to have received firearm injuries but such medical opinion is open to serious doubt as they were found to be lacerated wounds. It is argued that number of empties have been recovered from the positions of the respondents and a large number of bullet marks were noticed by the Investigating Officer just behind the position of the complainant, it would be a further corroborative of firing being made by the respondents.
8. We will first take up the point of non-hearing of the complainant, namely, Said Rahman, before the lower forum. The fact is that Said Rahman complainant of case F.I.R. No,16 is accused in case F.I.R. No,15 and so are Nisar Ahmad and Shah Fayyaz, the day when the bail application of respondents Adam Khan and others were heard by Judge Special Court, Said Rahman was not only heard as complainant but the bail application of Nisar Ahmad and Shah Fayyaz was also fixed before the same Court on the same day. Firstly they were heard through their counsel where they were seeking bail from the Court, it means that they were very much represented when bail application of respondents of case F.I.R. No,16 was argued. Secondly, they have been heard at length on merits by us and this Court while hearing the bail application or bail cancellation application does not sit in appeal nor in revision but powers of grant of bail and its cancellation are equally vested with the lower Court and this Court as both have concurrent jurisdiction. Thirdly, the right of audience/hearing of the complainant and victim is not a statutory right because so far section 497, Cr.P.C. Has not been properly amended where under notice is required to be. Given to the Public Prosecutor. Though provision of section 497, Cr.P.C. May not be applicable to the cases where offences are schedule offences, but the principle as held by the august Supreme Court of Pakistan is applicable while hearing bail application.
9. On merits, as for respondents Adam Khan and others in case F.I.R. No,16 are concerned, there are eight persons charged for three sma ll lacerated wounds and 4/5 small punctured wounds with four other lacerated wounds on the person of Nisar Ahmad, all located almost on the same part of the body and single lacerated wound on the person of Shah Fayyaz injured. There is no fire-arm entry wound on either of the two injured. The two injured while in the hospital were examined by the police under section 161, Cr.P.C. But on 29-1-2001, i,e, after five days of the occurrence. Nisar Ahmad has not charged any person by name whereas Shah Fayyaz has given three names only, but such charge for the purpose of bail would again loose weight in view of contents of daily Diary No,9 of Police Station Domel to which repeated reference is made by learned counsel, Pir Liaqat Ali Shah, appearing for complainant Said Rahman. According to such daily diary, Abdul Waheed, an accused of case F.I.R. No,15 and son of Said Rahman complainant, has informed the police that some unknown persons have attacked their house and have started firing. When a coaccused/son of the complainant could not give the names of the assailants in an information conveyed to the police at 12-00 noon, the case of the accused/respondents in Criminal Miscellaneous No,56 of 2001 and Criminal Miscellaneous No,57 of 2001 becomes a case of further inquiry.
10. Regarding cancellation moved through bail cancellation applications Nos.89 and 90 of 2001, not only that six accused are charged by Adam Khan complainant, but there is no fire-arm injury caused to any person in the case. The premium with regard to presence of two injured, namely, Nisar Ahmad and Shah Fayyaz is intended to be taken by the complainant Adam Khan, but they are injured of case F.I.R. No,16. Three respondents, namely, Said Rahman, Sher Ayaz and Arifullah are said to have fired from the "morchas" situated in their houses but their identity is open to doubt unless proved at the trial. As far as remaining respondents are concerned, they are also attributed the role of ineffective firing. The reasons advanced by the learned Special Judge while allowing bail to them are neither perverse nor fanciful.
The upshot of our above discussion is that we find no merit in any of the bail cancellation applications and resultantly all stand dismissed.