' Fazal Nabi and his brother Gul Nabi petitioners, stand arrested in case F.I.R. No,467 registered at Police Station Charsadda on 6-4-2001 at 18-15 hours against the petitioners and two others, namely, Fazal Rabbi and Noor Nabi, under sections 302/324/34, P.P.C. At the instance of complainant Sahibzada, in respect of an occurrence alleged to have taken place the same day i,e, 6-4-2001 at 17-45 hours in the limits of Syed Abad, District Charsadda. In the F.1. R. The petitioners and absconding co-accused are charged for murder of Gul Khan (brother) and attempted murder of Subail (son) of the complainant. A quarrel between the children of the two families, is stated to be a motive for the unfortunate incident.
2. The petitioners submitted applications in the Courts of Judicial Magistrate as well as Sessions Judge, Charsadda for grant of bail which were rejected vide orders, dated 4-12-2001 and 13-12-2001 respectively.
3. Feeling aggrieved, the petitioners have approached this Court with the similar prayer by way of filing instant bail applications Nos. Criminal Miscellaneous Nos.243 and 244 of 2002 which shall be decided by this single order.
4. Messrs Khanzada Ajmal Zeb and Alam Zeb, Advocates for the petitioners, in support of bail applications mainly contended that in fact the complainant party had opened indiscriminate firing at the house of Fazli Nabi petitioner in consequence of which one of the assailants namely Gul Khan lost his life and Zuber sustained injuries; that the petitioners approached the local police for registration of a cross-case but the police refused to do so; that in the occurrence Gul Nabi petitioner also sustained injury on his person at the hands of the complainant party which has been concealed for reasons not far to seek; that nothing incriminating has been recovered from the petitioners; that one of the petitioners namely Gul Nabi was minor at the time of occurrence; that he was not present at the spot and that at this stage it cannot be determined as to who is aggressor and who is aggressed upon and thus the case of the petitioners necessitates further inquiry and probe within the meaning of section 497(2), Cr.P.C. To substantiate the contentions, reliance was placed on Hassan Zafar v. The State 2001 PCr.LJ 1939, Jalal and another v. The State 2001 PCr.LJ 1355, Muhammad Mansha and others v. The State 1996 PCr.LJ 1981 and Muhammad Sudheir v. The State 1998 M LD 1994.
5. Syed Asif Shah, learned counsel for the State assisted by Mian Qamar Gul and Syed Wilayat All Shah, Advocates for the complainant on the other hand, opposed the bail application and contended with force that prosecution is in possession of sufficient material to connect the petitioners with the guilt and discretion has been properly exercised by the Courts below which hardly calls for interference. They also urged that minority alone constitutes, no good ground for release of an accused person on bail and that the plea of alibi cannot be taken into consideration at the stage of bail. Reliance was placed on Zamir v. The State 2001 PCr.LJ 666, Sher Bahadar v. Haji Ghaffar All Khan and another 1999 PCr.LJ 403, Mumtaz Hussain v. The State 1999 SCM R 2248 and Punhoon Lashari v. State 2001 PCr.LJ 926.
6. It needs no reiteration that the bail in a case of capital punishment is always granted or refused in the light of the material placed before the Court and unless the Court comes to the conclusion that there was no reasonable ground to believe that a person has committed an offence punishable with death,or imprisonment for life, he would not be entitled to claim the benefit of subsection (2) of section 497, Cr.P.C. Bail in non-bailable cases is a matter within the discretion of the Court which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or imprisonment for life, an accused charged with the same is not to be admitted to bail if there are reasonable grounds for believing that he has committed such an offence. Mst. Maqsood Begum v. Muhammad Maroof 1998 PCr.LJ 56 and Manzoor v. The State PLD 1972 SC 81.
7. In the instant case I find that the names of the petitioners specifically transpire in the promptly lodged report and they have been assigned a definite role in the murder of Gul Khan deceased and attempted murder of Zubair P.W. The ocular account of the incident furnished by eye- witnesses coupled with medical evidence and circumstantial evidence fully support the charge.
There can be no two opinions that in case of counter-version the rule followed is that if one party is granted bail the other too is entitled to bail, but that rule would be applicable in cases of genuine counter-version as held in 1992 SCM R 501, 1995 SCM R 860 and 2001 PCr.LJ 1483. Mere filing of cross- case against each other cannot be a ground for grant of bail, unless an element of genuineness is there. In the instant case there is nothing on file to show that cross-case was ever filed at the instance of the petitioner. The plea of cross-case, in the circumstances, is not available to the petitioners. So far as the plea of minority of one of the petitioners namely Gul Nabi is concerned that too cannot be taken into account at this stage because there is sufficient material on file to indicate that the petitioners had specifically participated in the firing which resulted in the death of Gul Khan deceased and attempted murder of P.W. Zubair. The rulings cited in this respect are quite distinguishable and have no bearing on the facts of the present case. In Jalal and another v. The State 2001 PCr.LJ 1355, the petitioners were empty-handed and the occurrence had taken place at the spur of moment without any premeditation and preconcert. In the present case, the position is altogether different.
8. Most of the arguments of learned counsel for the petitioners such as plea of alibi and others, touch the merits of the case and I refrain at this stage to discuss the same. These points can be adjudicated upon at the time of trial.
9. As the petitioners are directly nominated in the report for the commission of offence and prima facie no case for grant of bail is made out, the applications fail which are hereby dismissed and the bails are declined.
10. Needless to add here that observations made above are tentative in nature and shall have no bearing on the merits of the case and the trial Court shall consider the merits of the case after recording of evidence independently of the observations contained in this order.