Yousaf Shah Vs The State

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.M. B.A. No. 170-M/2025

ORDER

Date of hearing: - 28.4.2025 Petitioner: - (Yousaf Shah) by Sahibzada Riazat- ul-Haq, ASC.

Respondents: - (State & others) by Mr.Kamal Khan, Astt: A.G and Mr. Fazal Rabi Khan (Tawas Khel), AHC, appearing on behalf of legal heirs of female deceased Mst. Shagufta. Nemo for legal heirs of male deceased namely Hazrat Ullah.

SABIT ULLAH KHAN, J: - After having been booked in case FIR No. 192 dated 18.9.2024, U/Ss 302,311 PPC, R/W section 15-AA of P.S Shah Dherai, District Swat, petitioner namely Yousaf Shah applied for his post arrest bail before the Court of learned Additional Sessions Judge, Kabal, Swat, but same relief was declined to him vide order dated 16.10.2024.

2.As per contents of ibid FIR, local police during routine patrolling of area received prior information that an offence of double murder has taken place at vicinity of village Taraan. Complainant/ASI namely Barkat Ali, Nawab (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

along with other Nafri when reached to the place of occurrence, whereby they found they found dead bodies of both the deceased i.e. Mst.

Shagufta and Hazrat Ullah, both of them have been killed through firearms. On inquiry, complainant/ASI came to know that husband of female deceased has been settled abroad for earning his livelihood for the last two years, while she has been living in her residential house along with her two kids and both the deceased were having illicit relations and on the day of occurrence male deceased Hazrat Ullah allegedly visited the residential house of Mst. Shagufta, whereby both the them of were killed by present petitioner namely Yousaf Shah through firearms, on the alleged pretext of honour. Motive behind the commission of offence was disclosed to be alleged illicit relations of both the deceased.

‘Murasila’ was drafted which culminated into ibid FIR registered against present petitioner at P.S concerned.

3.Arguments of learned counsel for parties as well as learned Astt: A.G. appearing on Nawab (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

behalf of State were heard and requisitioned record gone through with their valuable assistance.

4.A bare look of record would reveal that the instant occurrence is unseen and un-witnessed event, as so far nobody has come forward as an eyewitness of the occurrence. Even on the spot, no one was ready to lodge report to the local police in respect of double murder of deceased, on the alleged pretext of honour. Case against present petitioner has been based only on circumstantial evidence which cannot be appreciated deeply at this stage of the proceedings. Learned trial Court will adjudge evidentiary value thereof after recording of prosecution evidence. Likewise, complainant/ASI has neither disclosed the names of those persons who have informed him about alleged involvement of present petitioner in the commission of offence nor he could put-forward any other cogent and worth reliable information in this regard, which could prima facie speaks about guilt or otherwise of petitioner except mere mentioning of motive which was stated to be illicit relations of both the deceased. In view of such facts and circumstances, it is for learned trial Court to determine after recording of evidence as to whether Nawab (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

the accused/petitioner has committed the alleged offence for which he is charged or not, therefore, at this stage, there appears no reasonable grounds for believing that petitioner is guilty for the offence jotted-down in the FIR and on the basis of tentative assessment, he has made out a case for further inquiry.

In case titled “Farhad Hussain & another v/s State” reported as 2023 SCMR 364, it was held by apex Court that: -

“Reasonable grounds are those which may appeal to a reasonable judicial mind, as opposed to merely capricious, irrational, concocted and/or illusory grounds. However, for deciding the prayer of an accused for bail, the question whether or not there exist reasonable grounds for believing that he has committed the alleged offence cannot be decided in a vacuum.”

Likewise, in case titled “Rbab Ali v/s Khamiso & others” reported as 1985 SCMR 195, Hon’ble apex Court has formed following view in respect of conceptualization of further inquiry: - “Grant of bail on ground of further inquiry. Conditions. Bail can be allowed in a case otherwise allegedly falling under the prohibition contained in subsection (1) of 5.497 under subsection (2) of S.497, Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused but only the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry.”

Nawab (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

5.No doubt, petitioner has been charged for murder of his sister-in-law, a vulnerable member of his family, however, being un-witnessed event it is for prosecution to establish nexus of petitioner with murder of his sister-in-law by leading its evidence during the trial proceedings which will be analyzed by trial Court and thereafter guilt or innocence of petitioner will be decided in accordance with law. Keeping in view the attending facts and circumstances of case, at the moment evidence on record is not sufficient to show prima facie nexus of petitioner with murder of his sister- in-law.

6.During the course of investigation, Investigation Officer has recovered five crime empties of 7.62 bore from the spot i.e. house of female deceased, therefore, it will be determined at the time of trial as to whether it was the job of single accused or otherwise, especially, when present petitioner was shown arrested near the vicinity of his house, therefore, in ordinary parlance, accused allegedly charged for dual murder would normally make his escape good from locality rather than to be present near his house. It is also part of record that present Nawab (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

petitioner has submitted an application for issuance of directions to SHO concerned to nominate respondents namely Shaukat and Izzat Ullah as accused in the case in hand, however, said application was dismissed by learned trial Court vide its order dated 27.02.2025 mainly on the ground that section 22-A Cr.P.C did not mandate such kind of discretion, nevertheless, learned trial Court would be in a better position to dilate upon this controversy after recording of evidence, but at the moment this element makes the case of petitioner arguable for the purpose of bail.

7.Challan in the case in hand has already been put in Court and trial is ripe for its commencement, therefore, further custody of petitioner would neither be required nor the same would serve any useful purpose.

8.In view of what has been discussed

above, instant bail application is allowed and petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs. 100,000/- (one hundred thousand) with two sureties each in like amount to satisfaction of area Judicial Magistrate/MOD, who shall ensure that sureties are local, reliable and men of means. Subject observations recorded hereinabove are purely tentative in its nature and shall no way Nawab (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan

prejudice an independent mind of learned trial Court, prosecution or defence.

9.These are reasons of my short orders of even date.

10.Before parting, this Court finds it

necessary to remind the trial Court that the observations recorded by this Court while disposing bail application are not to be considered during trial of the accused. In this regard, august Supreme Court of Pakistan in case titled “Shuaib Mehmood Butt v/s Iftehar-ul-Haq” (1996 SCMR 1854), has rendered clear guidance, which is to the effect that: -

“However we would like to point out in no certain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial court, which is free to appraise the evidence strictly according to its merits and the law at the time of disposal of the case, which of course, it is needless to say, is the function of the trial Court”.

Announced Dt: 28.4.2025 Sd/-

JUDGE

Nawab (S.B.) Hon’ble Mr. Justice Sabit Ullah Khan