InamUllah vs Qudrat Ullah

2014 M L D 1425

[Peshawar]

Before Muhammad Daud Khan, J

INAMULLAH---Petitioner

Versus

QUDRATULLAH alias QUDRATI and another---Respondents

Criminal Bail Application No.62-B of 2014, decided on 29th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Bail, refusal of---Report in the case had been lodged within 45 minutes of the occurrence--- Complainant had himself witnessed the occurrence, and Investigating Officer, during spot inspection had also received 16 empties of 7.62 bore giving smell of fresh discharge from the spot of occurrence---Plea of cross version invariably, would carry phenomena of self defence in it, and when from the record, it was not discernible as to who had aggressed and who had acted in self defence, the parties were normally to be allowed bail; but in the present case, the position was different, as no such circumstance could be gathered, except cross F.I.R.---By raising the plea of cross-version, the occurrence was admitted by accused---When prosecution evidence, prima facie connected accused with the commission of crime, entailing capital punishment; and he himself admitted the occurrence by taking plea of cross-version, then mere cross F.I.R., would not be accepted as licence for grant of bail---Accused of every cross case, could not claim bail as a matter of right---Facts of every cross case were to be tentatively scrutinized and assessed; and then to be decided on its own merits---Co-accused who had been acquitted had been attributed the role of commanding while accused was charged for committing murder of deceased---Role of accused, was not at par with the case of co-accused---Accused was not entitled for concession of bail under the rule of consistency, in circumstances---Accused who prima facie was connected with the crime, was not entitled for his release on bail.

1 & 2 ref.

Farooq Khan Sakari for Appellant.

Muhammad Rashid Khan Dirma Khel for Respondent.

Date of hearing: 29th April, 2014.

JUDGMENT

MUHAMMAD DAUD KHAN, J.---Petitioner seeks bail in case F.I.R. No. 33, dated 5-

2-2014, registered under section 302/34 P.P.C., at Police Station Basia Khel, District Bannu.

2.Prosecution case as per F.I.R is that on 5-2-2014 at about 08.30 hours, complainant along with his cousin Nazifullah went out from the house towards the Baithak. While they were on the way near to the house of one Haqdad Khan co-villager of the complainant, there accused Selani Khan armed with pistol and Inamullah alias Inam duly armed with Kalashnikov were already present. When they reached near them, on the command of accused Selani Khan, the present accused/petitioner Inamullah started firing at Nazifullah, as a result of which he was hit and fell on the ground. The accused Inamullah again made firing at Nazifullah while the complainant took shelter with a wall and could do nothing due to' empty handed. After commission of the offence when the accused fled away from the spot, the complainant attended his cousin Nazifullah, he was succumbed to the injuries. Motive behind the occurrence as stated by the complainant is exchange of hot words between Nazifullah and accused Inamullah, one day prior to the occurrence.

3 Learned counsel for petitioner argued that there is a cross F.I.R No.34 of the even date, registered at the same Police Station, by the accused/petitioner Inamullah; that co-accused Selani Khan is already on bail and in view of cross-version, the petitioner is entitled for concession of bail.

4.Conversely, learned Add: AG for the state, assisted by learned counsel for complainant, while opposing bail, argued that petitioner is directly charged for murder of the deceased; that Medical evidence, recoveries of 7.62 bore empties, blood stained earth also supports the F.I.R; that the offence falls within the prohibitory clause of section 497 Cr.P.C, hence, accused/petitioner is not entitled for concession of bail.

5.I have heard arguments of learned counsel for the parties, Addl: AG for state, and perused the record with their valuable assistance.

6.Admittedly and as is evident from the record in this case the occurrence took place on 5- 2-2014 at about 0830 hours, whereas the report has been lodged on the same date at about 0915 hours. Qudratullah is the complainant of the case and he has charged the accused/petitioner along with his co-accused Selani Khan for the murder of his cousin deceased Nazifullah. As per version of the complainant/ respondent, he himself has witnessed the occurrence and so far as the record of the case is concerned, it appears from the same that investigating officer during the spot inspection has also recovered 16 empties of 7.62 bore giving smell of fresh discharge, from the spot of occurrence.

7.Plea of cross version invariably, carries phenomena of self defence in it and when from record, it is not discernible that who has aggressed and who has acted in self defence, the parties are normally allowed bail. But in the instant case, the position is a little bit different, as on tentative assessment of the evidence, no such circumstance can be gathered except cross F.I.R. By raising the plea of cross-version, the occurrence is admitted by the accused/ petitioner. When prosecution evidence prima facie connects the accused with commission of crime, entailing capital punishment and he himself admits the occurrence by taking plea of cross version, then why mere cross F.I.R. should be accepted as license for grant of bail, particularly, in view of

prevailing law and order situation in society. Accused of every cross case cannot claim bail as a matter of right. Rather, facts of every cross case are to be tentatively scrutinized and assessed and then to be decided on its own merits. In this regard case of Wisar Muhammad Wassan and another v. The State (1992 SCMR 501) and Arif Din v. Amil Kihan and another (2005 SCMR 1402) may be referred.

8.The contention of learned counsel for the petitioner that the co-accused Selani Khan has already been enlarged on bail, hence the present accused/ petitioner is also entitled for the same relief under the rule of consistency, is misconceived, as the co-accused Selani Khan has been attributed the role of commanding while the present accused/ petitioner is charged for committing murder of deceased, thus, the role of present accused/ petitioner is not at par with the case of co-accused Sillani Khan, as such he is not entitled for concession of bail under the role of consistency.

9.For the reasons discussed above, on tentative assessment of the material available on record, accused/petitioner is prima facie connected with the crime. Hence, he is not found entitled for his release on bail. Resultantly, the bail petition of accused/petitioner stands dismissed. Any observations made in the order being tentative in nature should in no way prejudice the proceedings before the learned trial Court.

HBT/287/P ????.