Gulzar Vs The State

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BEFORT :{.:

Bail Application N/ 6lb 2017

Gulzar S/o Hayadar R/o Abazat presently Kir-ra, District Charsadda... .......(Accused/Petitioner)

VERSUS

1.The State

2.Mujatrid Gul S/o Mufid GuI R/o Pir Baba Kallay, Abadzai Charsadda... .-..(ResPondents)

F.I.R.-NO;-!673. DATED: 261 10/2O16

UNDER SECTION: 3O2. 324134 PPc

P. S: I.

u/s 497 Cr.PC FOR

OF BAIL TO THE

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OF LAW, TILL FINA

o THE CASE.

Rsgpectfully Sheweth:

1 That the captioned case has been registered at Police Station Tangi, Charsadda, in which the accused/ petitioner has been falsely implicated. (Copy of F.I.R is attached as annemre "A")'

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JUDGMENT STTTET

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PESHAWAR

(ludiciol Department) / +f- \...

Cr.M.BA. No. 2610-P/2017.

TADGMENT

Date of hearing: 22.12.2017.

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enumeration of the facts leading to lodging of the First Information Report vide F.I.R No. 673 dated 20.10.2016 charged r.r/ss. 302, 324134 PPC registered at Police Station Tangi, Charsadda, the complainant Mujahid Gul accompanied by the corpus of Khalid reported that on the fateful day, he alongwith his brother Sajid Gul and his son deceased Iftalid came out from their house in order to bring milk from ,,/- their farm they reached at a place thoroughfare f Mohallah Pir Baba Kanday situated in village Abazai 516 kilometers towards the west of ftirt

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Police Station Tangi. !hTE R Hiqt' Couq'1 i{5 FEB 2fi9

Abdul Srb@h (S.S) Hoo'blc Mt. Jstlis MoblntDid Ib6bin KirI

2.The accused/petitioner Gul zar and his brothers Zarar, Sabz Ali and Kamil sons of Khaya Daar, on seeing them opened fire with their respective firearms in order to kill them.

With the said fire shots, the deceased Khalid was hit who died there and then while both the complainant and his brother Sajid Gul escaped unhurt. This occunence besides the complainant has been witnessed by his brother Sajid Gul,

3.By the time, this occurrence had taken place, the motive behind for this gruesome murder of his son and firing upon the complainant and his brother was not known.

4 The Petitioner was declined bail earlier by the Court of learned Additional Sessions Judge, Charsadda at Tangi vid6 his order dated 17 .11.2017 . Hence, this is another attemPt seeking libertY by presenting this ,r/- 0- application before the Hon'ble High Court.

5.Having heard arguments of learned counsel for the Petitioner and learned A.A.G for ;o li FB ij i;n cnsilt 'iI]5

Abdul Srbmr (S.B) llor'tl. Mr. JrrtkcMotrmnrd tbr.htD Khlr

a the state, record with their valuable assistance gone through.

6.It is to mention here that the Respondent No. Z Mujahid Gul is the complainant of this case who has later been named in case registered against him and is since then fugitive from law, therefore amongst the Respondents, only learned A.A.G on behalf of the State was heard.

7, Learned counsel for the petitioner has refemed to the order of this Court in Cr:M B.A No. 22,0t-Pl2}l7 titled as ,,Israil. alias Minai vs the State etc', and the judgment in Cr.M B.A No. 2400-PlZ0l7 titled as ,,Israil v$.

the State". In the given esteem verdicts in view of the observation in Para-3 of the earlier judgment and Para-4 of the latter judgment, it tb/- r was kind enough that Petitioner Israil alias Minaj was granted bail in two different cases on the ground that the deceased has sustained two firearm entry wounds from the same direction having same dimensions of I x I cm. A general

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role of firing has been attributed to CX Abdrl Srbmlr (So) ,lm'bh Mr. flruc! MoiroNd lbrrhln Khra il

, on 2017 P Cr. Ll Note I (Peshawarl,t'Adam Khan V/S ,The State and anothe(', 2016 SCMB 2046 " Muhammod Ramzon V/S The S:tute qfld otherc!! , 2014 P Cr, LJ 947 (Peshawart " Abdulloh Khon Y/S The. State and another'), 2013 YLR 404 @eshawar) t' Gul Bacha V/S Thg Snte throush Advocate Genera ond another !t- 2005 scMR 1102 n Arif Din V/S Amil Khan and and

reported judgment of His Lordship Hon'ble Mr.

Justice Ishtiaq Ibrahim has also been referred as delivered in Cr.. M B.A. No. 1094 of 2017 titled as 't ,Fabal Khan &,3 others V/S The Statc & Amaqullah Khan! decided on 24.03.2017 at Peshawar High Court Abbottabad Bench. In the said judgment reliance has been placed on 1996 SCIV{F. 1E45 "Shoaib Mehmogd Butt V/S lftikhor-ul-Hao ond 3 others't. wherein the following view has been r/- formed

16.In cose ol counter-verstons arlsing lrom lhe some lncident' one given by comploinanl in F.I.R and the olher given by lhe opposile-porty

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, case-low ls almost settled thal such coses ore covercd for grant of bail on the ground of lurther enqairy os contemplated under secllon 197(2), CI.P.C. In sach cales normally, bail is granted on the ground of further enquiry for lhe reason that the queslion as to which version is correct is lo be decided by the triol Court which is supposed lo record evidence and also opprolse the some in order lo come to atinal conclusion ln this regard. In csses of counter- versions, normolly, plea of privale delence is taken givlng rise to queslion os to which ParA ds oggressor and which partY lb aggressed. In the cose of Fazal Muhammad v, Ali Ahmad (1990 SCMR 391) in ctoss-cases lhe High Court granled boil to the accused on the ground tltot there wos probobilQ of counler-version beipg lrue as some of the accused had received iniuries including a grianus iniury on the head of one accused, It was held bY this Courl lhat ln such circumstonces lhe High Court was righ! ln grontlng ,/- batl ond no interference wos warronted, In the some conletdt reference con be made lo lhe case of Mst Shotiqan v. Hoshim Ali ond others (1972 SCMR 6E2),

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a t. Last but not the least learned counsel for rival parties have also affirmed that the complainant of this case has no objection if accused/petitioner from this side is granted bail.

In this context reliance has been placed on 2017 SCMR 1730 "Ghulam Abbas alias Gaman and others V/S The Stote and others". The relevant citation of the judgment speaks ofl- "Presenl cose was a cose of lwo versions and two FIRI and it was dfficult to determine os lo whieh party was the aggressot. Counsel lor both sides hdd no obiection d accused persons from both sldes were granted ball. Ball was granted to accus ed persons accor dinglY.

6.Where these cases FIR No. 871 and FIR No. 872 dated 15.10-2017 of the sarne Police Station Bhana Marai have been held and admitted to be of cross version and in position at this quandary it cannot be ascertained to give

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lV.-soecific role to this Petitioner in this cross case. f,' Where the combined study of the facts would fall the role of this Petitioner one of further inquiry within the ambit of sub-section 2 of

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a section 497 Cr.P.C thereby the grant of bail becomes right of the accused when the complainant of the cross case has no objection t

on the grant of bail. Thus it would be imperative for the Court to grant bail.

7.Accordingly, on acceptance of this petition the accused/?etitioner Rehman Shatr is admitted to bail subject to furnishing bail bonds in the sum of Rs. 200,000/- (Rupees two lacs) with two sureties each in the like amount to the satisfaction of learned Judicial Magistrate concem, who shall ensure that the sureties are local, reliable and men of means.

8.These are the reasons of my short order of even date.

Announced t' v, Dt: 04.01.20/,8 JADGE

CERI'FIED

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t Nrrrb (S.E ) tlol'blt Mr Jorth: Mobroud lbntln Kbra