Samiullah Khan etc Vs Najib Ullah alias Najju, etc

a)

A Y\

IN THE PESHAWAR HIGII COIIRT,

BAIINU BENCH

(ludicial Department)

Cr.Misc : BCA No.30-B 12023

Samiullah Khan etc.

V.

Najib Ullah alias Najju, etc.

ORDER

Date of hearing l1

For petitioner(s) Mr. Wali-ur-Rehman Advocate

For respondent(s): Mr. Ahmad AIi Advocate (via video link).

For State:

A.A.G.. alone with Usman. ASI.

The

petitioners seek cancellation of bail granted to the respondent / accused Najib Ullah alias Najju by the Anti-Terrorism Court, Bannu Division, vide orders dated 21.06.2022 and 15.04.2023, in case FIR No.323, dated 08.07.2021, registered under sections 302,324, and 353 PPC, read with Section 7 of the Anti-Terrorism Act, 1997, and Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013, at Police Station Peztt, District Laklci Marwat.

2.The brief facts leading to the filing of this bail cancellation application are that on 08.07.2021 at 20:45 hours, constable Abdul

1 Qayyum (No.a56) from Police Post Shahbaz Khel, Lakki Marwat, along with the dead body of Kalim Ullah Khan, ASI, reported the matter in the Emergency Ward of DHQ Hospital, Lakki Marwat. As per the report, on the day of incident, he along with police officials, Samiullah Khan No.7326 and Hizar Hayat No.331, under the supervision of Kalim Ullah Khan, ASI, Incharge of the police post, were on patrolling duty at Hayat Khel in an official vehicle driven by Hussain Ali. During their patrol, Kalim Ullah Khan, ASI received a call informing him of an f, armed person with a Kalashnikov in village Sharbi Khel. The caller reportedly feeling danger to himself, requested the police to arrest the individual, who was armed. The complainant and police party went to the village Sharbi Khel and found a person armed with a Kalashnikov in Najib Ullah alias Najju's Baithak (sitting room). The armed person was subdued and relieved of his weapon. He disclosed his name as Hamayun son of Amir Ahmad resident of Sharbi Khel. He was apprehended and placed inside the police van, and the police immediately began moving forward in their van. Meanwhile, the accused Najib Ullah, a police constable and cook emerged from his

-J-

1 house, armed with a Kalashnikov, positioned himself in front of the police van and demanded that Hamayun be let go with his Kalashnikov.

Kalim Ullah Khan, ASI and the police party exited the vehicle, prompting the accused Najib Ullah to flee and took cover behind a field's boarder, aimed his Kalashnikov at the police party, and at 19:40 hours, opened fire with the intent to commit their Qatl-e-Amd. Kalim Ullah Khan, ASI, was sfruck by the gunfire and fell to the ground. The police party retumed fire but the 4 accused Najibullah escaped by using the nearby acacia ffees, plants, and bushes for cover. Kalim Ullah Khan, ASI unfortunately died from his injuries while being transported to the hospital.

The occuffence was witnessed by the complainant and the above named police officials. Murasila was sent to police station, resulting in the registration of the FIR.

3.Arguments heard. Record perused.

4.On September 11 , 2021, the accused /respondent Najib Ullah was formally arrested by the local police, when he presented an order from the Anti-Terrorism Court, Bannu Division, which had granted him interim pre-arrest bail. However, this bail was dismissed by the court for non-

4 prosecution, due to his involvement and arrest in other criminal cases. Subsequently, the Judge of the Anti-Terrorism Court, Bannu Division, dismissed Najib Ullah's post-arrest bail application on 24.0L.2022, based on the merits of the case.

5.Perusal of record reveals that accused/respondent Najib Ullah, alias Najju, filed another bail application no. 8116, on May 9,2022, after being in custody for three and a half months.

In this application, he claimed to be seriously ill and blind in one eye, as stated in paragraph 4 of the bail application. The Anti-Terrorism Court, Bannu Division accepted Najib Ullah's bail application on 21.06.2022, due to injuries sustained, as under trial prisoner, in a police vehicle accident on April 1,2022, which resulted in the loss of his eyesight and released him on bail for six months or until his complete recovery from injuries, whichever came first, subject to fumishing bail bonds worth Rs. 50,000 with two sureties, each in the same amount.

6.On 03.12.2022, Sami Ullah, the brother, and Gul Mina, the wife of the deceased Kalim Ullah, filed an application no. Z35lG of 2022, in

Anti-Terrorism Court, Bannu Division, to cancel Najib Ullah, alias Najju's bail. They claimed that accused/respondent Najib Ullah, alias Najju had fully recovered from his injuries and was regularly attending trial proceedings since his release. The bail had been granted on June 21,

7.The accused/respondent Najib Ullah also filed an application no. 25316 of 2022,in Anti- Terrorism Court, Bannu Division, on 13.12.2022, seeking to extend his bail until the conclusion of trial. He claimed he hadn't fully recovered and was experiencing balance problems due to a neurological disorder. This application was filed just days after the application for cancellation of his bail was filed by the deceased's family.

8.The Anti-Terrorism Court in Bannu Division vide his order dated 15.04.2023, dismissed the application (BCA no. 23516 of 2022) filed by Sami Ullah (brother) and Gul Mina (wife) of the deceased Kalim Ullah. Simultaneously, the court accepted Najib Ullah's application (BA No. 25316 of 2022) for extending his bail until the conclusion of the trial. The judge based this decision on medical documents and

-, Najib Ullah, alias Najju's physical appearance, noting that:

I. His left eye had been removed.

II. His right eye was still under treatment. m. He required a stick and human support to attend court, indicating incomplete recovery.

9.This court heard arguments from the lawyers representing both parties and carefully reviewed the case records with their assistance.

10.I deem it necessary to review the case record to understand the reasons behind the significant delay (with 20 adjournments from 25.05.2023 till 07.04.2025) before proceeding to evaluate the merits of the bail cancellation application. This bail cancellation application was filed on May 25,2023, and a notice was issued to the accused respondent Najib Ullah, alias Najju.

On 30.10.2023, the accused/respondent Najeeb Ullah appeared but sought an adjournment due to his counsel's unavailability. The delay in the case is primarily attributed to the accused and his counsel, who sought 13 out of 20 adjournments, significantly contributing to the prolonged pendency of the present bail cancellation application. On 07.04.2025, despite service, the accused./respondent Najib Ullah, alias Najju did not appear and his counsel submitted an application seeking adjournment, stating that he

was occupied with a case before the Supreme Court in Islamabad. To ensure a timely resolution of the case, this court adjourned the hearing to April ll, 2025, and directed the office to issue a notice to the counsel for the accused/ respondent to appear in person to present arguments or to submit written arguments on or before the next hearing date. Today the accused/respondent Najib Ullah, alias Najju appeared in person, looking active with no visible signs of infirmity and instability, suggesting he is in good physical condition. Accused/respondent ,s counsel, VIr Ahmad Ali ASC, participated via video link.

11.The issue of granting or refusing bail has been extensively addressed and clarified by superior courts through various judgments and precedents. There is now a judicial consensus that in order to seek bail on medical ground, the accused must establish that the illness is life threatening; that its treatment is not possible within the jail premises; that continued detention would pose a serious risk to the life of the accused; and that the disease is contagious or transmissible in nature. In the absence of these conditions, bail cannot be granted on medical ground.

12.In this context, the record was thoroughly examined to determine whether the accused/ respondent's case met the established parameters for bail as laid down by superior Courts. The Court found that the record did not show the injuries sustained by the accused/respondent to be life threatening, or their treatment being not possible within the jail premises, and his detention would pose a serious threat to his life. The Anti- Terrorism Court (ATC) released Najib Ullah, alias Najju, on bail based on an inconclusive so-called 4 medical report and personal observations that his left eye had been removed and his right eye was still under treatment and more particularly that he required a stick and also human support to attend court, indicating incomplete recovery. The trial court's record shows that after his release on bail due to medical reasons, the accused Najib Ullah, alias Najju, consistently attended The Anti- Terrorism Court (ATC) proceedings, suggesting he was in good health and stable.

13.The record shows that the accused's bail application was dismissed on its merits by the Anti-Terrorism Court (ATC) on January 24,2024.

Despite the initial dismissal, the accused filed

v another application for bail on medical grounds.

The trial court considered an inconclusive medical report from the Medical Officer of Central Jail, Bannu, dated May 20, 2022, and granted bail to the accused based on medical grounds, relying on personal observations instead of referring the accused to a Medical Board for a thorough evaluation.

14.Legally speaking, granting bail on medical ground based on personal observation rather than thorough medical evaluations or expert opinions contradicts established legal principles and is unwaranted.

15.Today during the arguments, the petitioners' counsel informed the court that the case has been transferred to a regular court for trial, where a de novo trial has commenced, and the accused acknowledged and confirmed the statement regarding the case's transfer to a regular court and the commencement of a de novo trial.

16.The trial court (ATC) record shows that the accused./respondent was granted bail on June 21, 2022, initially for six months, which was later extended until the trial's conclusion, however, he didn't appear in court until August 20, 2022, due to being confined in another case. The accused,

v once released on bail, consistently attended court proceedings until the case was transferred from the Anti-Terrorism Court (ATC) to a regular Court. The accused's prolonged release on bail based on medical ground (over 2 years and 9 months) coupled with his apparent full recovery from the alleged ailment, as per the earlier medical report, suggests that the basis for granting bail on medical grounds no longer applies. Given the accused's recovery, the special concession of bail appears unwalranted, and judicial custody no longer poses a health risk. Bail on medial ground is not a permanent benefit and can be withdrawn or cancelled in such circumstances.

17.The argument that the accused hasn't misused bail is irrelevant in this case since bail was granted on medical grounds, not on merits.

18.In these circumstances, the findings of the Anti-Terrorism Court are not in accordance with law and, therefore, upon the acceptance of this bail cancellation application, the bail granted to the respondent / accused is hereby recalled.

19.The foregoing are the reasons for my short order of even date.

UL

Announced tt.04.202s (Ghafoor Zamanl

JUDGE