RIAZ SHAH vs MUBARAK SHAH and anothers

Having been involved in case registered vide F.I.R. No,524 on 13-11-1999 under section 324, P.P.C. In Police Station Havelian, the accused-petitioner submitted an application for his release on bail in the Court of learned Judicial Magistrate, Abbottabad but the same was rejected vide order, dated 6-12-1999. He thereafter, moved the Court of learned Additional Sessions Judge, Abbottabad but his application was dismissed vide order, dated 20-1-2000. Now he has moved this Court for his release on bail.

2. Complainant, Mubarak Shah reported that he was present in his house. At about 3 p.m. When his grandson Sajid Hussain Shah and his son Talib Shah were putting earth on the roof of their house, in the meantime, accused-petitioner, namely, Riaz Shah arrived there duly armed with .30 bore pistol and fired at his grandson Sajid Hussain Shah and injured him on his buttock. On the fire shots the complainant was attracted, on seeing the complainant the accused-petitioner fired at him with his pistol, with fire shots he sustained injuries on his right and the left arms and chest. The accused decamped from the spot.

3. Mr. Muhammad Ayub Khan Tanoli, Advocate, the learned counsel for the petitioner argued that the occurrence has not taken place at the roof top of the house of the complainant but in fact it took place in the courtyard of the house of accused-petitioner as is clear from site plan and in fact the complainant and his grandson were aggressors who had come to the house of accused- petitioner. A cross-case vide F.I.R. No,534 was also lodged in the said police station on 16-11-1999 and it is yet to be seen as to who was aggressor and who was agressed upon. The accused in the cross-case (F.I.R. 534) have been released on bail, hence the petitioner is also entitled to bail.

4. On the other hand Mr. Masoodur Rehman Khan Tanoli, Advocate, the learned counsel representing the complainant and Mr. Ghulam Younas Tanoli, Advocate, the learned counsel representing the State opposed the grant of bail to the accused-petitioner and stated that existence of cross-case is no ground for enlarging the accused-petitioner on bail. Medical evidence fully supports the case of prosecution and there is a strong prima facie case connecting the accused-petitioner with the commission of offence.

5. I have heard the learned counsel for the parties and perused the record.

6. The accused-petitioner has been charged for causing injury on the buttock of Sajid Hussain Shah and also causing injuries on the person of Mubarak Hussain Shah (on his chest and left as well as right shoulder). In this regard the medical evidence fully supports the case of prosecution.

The seats of injuries on the person of Mubarak Hussain Shah show that the accused-petitioner has been charged for inflicting fire-arm injuries on vital parts of the body of complainant his case, therefore, is covered by part I of section 324, P.P.C. He would be liable to imprisonment for 10 years and fine and in addition to the imprisonment as aforesaid shall also be liable to punishment provided for the hurt caused.

7. So far as existence of a cross-case is concerned, it is by now firmly settled that each case is to be decided on the basis of material and evidence available on the record of that case and as observed in Nasir Muhammad Wassan and another v. The State 1992 SCM R 501 and Qamar Abbas and 2 others v. Sohail Siddique and another 1998 M LD 1132 that mere existence of cross-F.I.Rs, or cross-cases against each other cannot be ground for grant of bail. It was also held in Allah Wisaya and 2 others v. The State 1980 PCr. LJ 105 that an accused is not entitled to bail as a matter of right for reason of a counter-version or a counter-case.

8. The accused-petitioner has been charged in promptly lodged F.I.R. For the commission of offence. The accusation has been supported by medical evidence, recovery of .30 bore empty from the spot and recovery of .30 bore pistol at the pointation of accused-petitioner from his house, report of Firearm Expert which is in positive and recovery of blood-stained earth from point "A". The registration of a cross-case also shows that occurrence had taken place. The circumstances, therefore, show that accused has committed a non-bailable offence falling within the prohibitory clause of section 497, Cr.P.C. The bail application is, therefore, dismissed.