Muhammad Ahmad vs State etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Cr.M.BA. No. 62-M/2016

JUDGMENT

Date of hearing: 07-03-2016

Petitioners By: Mr. Rashid Ali Khan Advocate Respondent By: Mr. Shams ur Rahman Advocate State By: Mr. Sabir Shah AAG

MUHAMMAD DAUD KHAN, J.- Accused/petitioners charged in case F.I.R. No. 1115 dated 22-11-2015, under sections 302, 324, 337F(IV)/34 PPC read with 15 AA of PS Nawagai District Buner, was refused bail by the learned lower Court vide its order dated 18-01-2016. They have moved this further application through their counsel for their release on bail.

2.The allegations against the accused/petitioners as per FIR referred to above are that they on 22-11-2015 at about 1600 Hours, duly armed with fire-arms and in furtherance of their common intention attempted at the life of the complainant Habib un Nabi, Sahib un Nabi and Rehman Zada, which proved effective. Later on, brother of complainant Sahib un Nabi succumbed to his injuries and died.

3.Arguments heard and record perused.

Nasir

4.In the present case record would reveal that the occurrence took place on 22-11-2015 at about 1600 hours whereas the report has been lodged on the same day at about 1830 hours. Habib un Nabi having stamp of injuries on his person is the complainant in the present case who has charged accused/petitioners for commission of the crime with specific motive behind the offence which is a quarrel/altercation on the same day.

Again the Investigation Officer during the course of investigation recovered the weapon of offence i.e 30 bore pistol from accused/petitioner Muhammad Ahmad and also recovered 05 empties of 30 bore during spot inspection from the place of occurrence.

So far as this contention of the learned counsel for the petitioners that there is glaring contradictions between the ocular account, medical evidence and entries made in the site plan is concerned, suffice it to say that Courts while setting on a bail plea are not supposed to go into the deep appreciation of evidence as it is the job of the trial Court where trial of the accused has already been commenced inasmuch as statements of 02 PWs have also been recorded.

So far as plea of cross version of the learned counsel for petitioners that against the same offence another FIR # 1154 on the same day has also been lodged by the mother and wife of accused/petitioner Muhammad Ahmad Nasir

and Habib Rasool respectively is concerned, suffice to say that plea of cross version invariably, carries phenomena of self-defence or otherwise 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, on tentative assessment of the evidence, no such circumstance can be gathered except cross FIR where only allegations of cloths torning were leveled. By raising the plea of cross-version, the occurrence is admitted. 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 FIR 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 'Nisar Muhammad Wassan and another v.

The State' (1992 SCMR 501) and Arif Din v. Amil Khan and another' (2005 SCMR 1402) may be referred.

In view of the available record petitioners/ accused are prima facie connected with the commission of crime which comes within the prohibitory limbs of section 497 Cr.P.C and this being the position the petition for the grant of bail stands dismissed.

Nasir

Announced Dt: 07-03-2016 JUDGE Nasir