Jumma Khan Vs The State

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TUDGMENT SHEET I

IN THE PESIIAWAR HIGH CO 4t, dt

PESHAWAR

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(ludicial Departmenf)

Cr.M B.A. Ifo. 2753-Pl2017 JuFma Khan & I another V/S The State t CrM B.A, No. 2893-P/2017 Zeeshan V/S The State

coNSoLIDATEp taDcMENT Date of hearing: 04.01.201E

Petitioners:- (Jummq Khan. Jamal Khan oUC Zeeshgnt bv IWS Foqir Hussain & Muhommad Adil. Advocotes.

Resoonden#:- (The State & I anothert bv Mr. Arlhad Ahmad, A,A,G.

MOHAMMAD IBRAHM I(EAN. J.- Jumma Khan y_ith3! his companion Jamal Kha'n are

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jointly looking for their post arrest bail being entangled in case FIR No. 1l 14 dated 04.09.2016 charged under sections 382,412 PPC .registered at Police Station Bhana Mari p)-Y"thawar. Their earlier petition for the similar f relief was declined by the Court of leamed Additional Sessions Judge-)il/ Peshawar vide his order dated 05.12.2017,

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e 2. There is another application'for the grant of post arrest bail of accused/?etitioner Zeeshan who has also been arrested in this case the particulars whereof are mentioned as above.

His petition for the 'identical relief was conjointly dismissed by the said learned Court on even date. The reasons being advanced for dismissal of the bail petitioni of all the above three accused are that "they hm,e been charged for commission of heinous offence. There is recgvery of the snatched amount effected from the Kota Rehaishi o.f the accused/P_etitioners on their pointation. They hqle been duly tdentified by the complatnaft .in the identification porade conducted at Central Jail Peshaw,ar by_the Area Judicial Ma?istrate, There.fore. prima facie connected with the commission of heinous offence. thus their prqver for.the. llberqv yas declined."

r fid 3. According to 'the report

Muhammad Ishfaq the complainant was present in his'shop at around I l:35 hours on 04.9.2016, in the rneanwhile two persons entered in his

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shop. Both of them pointed their respective pistols towards him. At the same time they broke the drawer and taken out Rs. 15 lacs out of it. They also snatched the mobile Galaxy-Il which was in the use of the complainant bearing its sim # 03456884861. After commission of this offence they vamoosed from the venue of crime through motorcycle. The complainant then came out of his shop raised rallying cry. At the base of this complaint, the complainant stated that three persons were slipped away after commission of the offence instead of two persons whose names were not mentioned but if brought before him he would be able to identifr them.

4 It was on 15.10.2016 when the complainant Muhammad Ishfaq recorded his statement under section 164 Cr.P.C that after his f d- full satisfaction he named Noroz, Gulzar and Qaiser to be those persons who had entered in his shop and had snatched Rs. 15 lacs from him along with the mobile Galaxy-Il. Copy of the order dated 25.10.2016 passed by the learned

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o Judicial Magistrate IV Peshawar is available on the record whereby all the three persons named as above by the complainant in his statement recorded ds 164 Cr.P.C were granted bail.

J. Next off, these accusedPetitioners Jumma Khan, Jamal Ktran and Zeeshan were arrested on one and the same date i.e 07.11.2017. Later their identification parade was conducted and accordingly the complainant of this case duly identified them correctly before the learned Judicial Magishate tX Peshawar and some recoveries have also been effected as stated to be the snatched amount but of very scrimpy amount. ,

6.Having heard argurnents of learned counsel for these accusedPetitioners and leamed A.A.G appearing on behalf of the State, record with their valuable assistance gone f, il;- through. While as per report dated 28.12.2017 of the learned Deputy Registrar (Judicial) of this Court, the complainant/Respondent No. 2 Muhammad Ishfaq despite personal service did ilrrtb (sL) Hoo'bt ilr lurtlc Mohrnord lbntlD Nhr!

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a not appear before him and'even today he is not before the Court. Therefore this being bail matter cannot be kept pending for an indefinite period as liberty of the aocused/petitioners is at stake, so was taken up for hearing even in absence of the complainant.

7.Learned counsel for the

ac,cusedPetitioners Jumma Khan and Jarnal Khan referred to 2017 YLR Note S .?eshawar D.I. Bencht '.r,Abdul Waheed V/S The Stqte and.

another". Likewise, learned counsel for the accused/Petitioner Zeeshan relied upon 2017 P CnLf No@ 11 (Peshawart "Naztr.Ahmad V/S Th,p- State aryd gnother", 2015 P Cq.LJ, 1538 (Peshowart "Yaooob Khqn , V/S The State', !.297 SCMR 4L2." Muhammad Rafique V/^S Tho State"and lg9-l 127

lLluhommad Ahmad and 3 others V/S The

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f, l4state and another" and thereby prayed for the grant of bail in favour of each of the accusedPetitioner. Inversely, learned A.A.G appearing on behalf of the State vehemently opposed the grant of bail as these b,

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o f, accusedlPetitioners -h.ie been involved in

snatching of huge amount of Rs. 15 lacs along with Galaxy-Il mobile from the complainant.

8.The version of complainant Muhammad Ishfaq by itself is doubtful that at the time when the amount of Rs. 15 lacs along with mobile were snatched frorn him two persons had entered in his shop, while he has charged three persons and none by name. Later in his statement recorded u/s 164 Cr.P.C on 15.10.2016 he has narned others/persons by the names of Noroz, Gulzar and Qaiser who have already been released on bail. Amongst these accused/Petitioners, Petitioner Jumma Khan is an Afghan National, he has been arrested on the basis of asservations within the meaning of Section 14 (ii) Foreign Act 1946 at Police cantt District Kohat in case FIR No. ru/st"tion r 584 dated 05.11 .2017. Therefore when the complainant has charged the other three persons after his satisfaction then these Petitioners rnight have been charged at the instance of police when their arrest was effected afterwards the

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comrnission of this occurrence and may be they have been typified before the complainant with the connivance of the police. This case is shrouded in mystery as to who amongst these Petitioners or the persons already named in the statement under section 164 'Cr.P.C of the complainant are amongst those persons who had entered in the shop and snatched the amount of Rs. 15 lacs as well as the mobile phone owned by the complainant. Even if there exist a doubt at bail stage the Court can take notice of it and grant bail to the Petitioners whose presence has been made doubtful at the venue of crirne by none else but the complainant himself. Reliance is placed on PLD 1996 Suoreme Coult 241 ,,Sved Anlanullah Shah V/S Ile Stole and another. The reievant citation (c) of the ibid iudgrnent speaks of:-

r 14 't lflhenever reosonable doubl arises with regord to lhe participation olan occused person in the crime or oboul the trath ot probability of the prosecation cose and lhe evidence proposed lo he produced in support ol the charge, lhe accused should

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o not be deprived of benefil of bail and in such a silualion il would be better to keep him on bail than in the joil during the lrlal.l'

In search of same. analogy reliance can further be placed on 2016 S-C!vI-B tE "Zoisham Ashraf Y/S The State and other{'. wherein it has.

been held:-

"Core ond coution lo be ucrclsed by courl when granting/refuslng bail to on accused. To currall the llberty of o percon wos s serlous slep in law, therefore, lhe judges should oPPly jadicial mlnd with deep thought lor reachlng ot a fair and propet concluslon albelt tenlattvely, Such exerclse should not be'corrled out ln vocuum or in o tlimsY ond cosaal monnq as lhat would deleat lhe ends of justice because il lhe accased charged, wos ultimately acquitled at the lrial then no' rePorotion or compensatlon could be aworded to him for the long incarceratlon, os the provisions ol Criminol Procedure r ila subjectanddtdthenot Provide Code of law on lor scheme the such

orrangemenls lo rePoir lhe lass, caused lo an accused person, detoined in Joil without lusl cause and reosonoble grounds.. Etdraordinary core ond caution should, thus, be

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a qcrclsed by th9 Judges in the course of grantlng or refuslng gront bdil to .to on accused pe$on, chorged for otfence(s), punishoble wlth copitol punishment."

9.In view of the above observations which are purely tentative in nafure, on acceptance of both these petitions all the three accusedPetitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs. 200,000/- (Rupees trno lacs) with two sureties each in the like amount to the satisfaction of learned Illaqa Judisial Magistrate/Duty Magistrate, who shall ensure that the sureties are local, reliable and men of means.

10.These are the reasons of my short orders of even date.

Annoqfced f v;^ Dt:04.01.201.0 JADGE

CERNFIED

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