Shah Tamas Khan vs State

PESHAWAR HIGH COURT MINGORA BENCH

(DAR-UL-QAZA), SWAT

JUDICIAL DEPARTMENT

JUDGMENT SHEET

Cr. M (BA) No. .......284/2014

Date of Hearing: ....24.11.2014.

Petitioners: (Shah Tamas Khan and five others)by Mr. Rashid Ali Khan, Advocate.

Respondent: The State by Mr. Sabir Shah, AAG, complainant by Mr. Hazrat Rehman, Advocate.

MALIK MANZOOR HUSSAIN, J.- Shah Tamas Khan, Mujahid Khan, Zahid ur Rehman, Habib ur Rehman alias Babu, Liaqat Ali and Muneer Ahmad alias Hamayoon, involved in case FIR No. 549 dated 4.8.2014 under sections 324/365/337-A(ii)/337-F (ii)(iii)(v)/ 148/149 PPC, registered at Police Station, Khall, after they failed to secure the relief from the Courts below, have applied for bail before this Court.

2.As per contents of FIR, complainant,

Rahim Zada, advocate, in injured condition, reported to police in civil hospital, Timergara, that on 4.8.2014 he and *Zafral ktk *

Wakeel Khan, advocate, were on the way back to home from the Court of Additional Sessions Judge, Wari, and on reaching to the place of occurrence at 15.40 hours, in the meanwhile, they were intercepted by 10/12 persons armed with "churri" and sticks in vehicles, i.e., Fielder, motor car and a motorcycle, attempted to abduct him but on his resistance, accused Habib ur Rehman alias Babu and Zahid Khan started giving churi blows to him as a result of Zahid blows he received injuries on his right shoulders while at churri blows of Habib ur Rehman he received injures on his right wrist, middle and witness finger of his left hand and right leg while at the sticks blows of Muhajid and Tamas he received injuries on his head. He can identify the remaining accused, who had grappled with him as a result of which he received injuries on various parts of his body, as such, the above referred FIR was registered.

3.Arguments heard and record perused.

*Zafral ktk *

4.The perusal of record reveals that petitioners No. 3 and 4, namely, Zahid ur Rehman and Habib ur Rehman are directly charged by the complainant in his report specifically for giving 'churri' blows which has been supported by the medical report and other material available on record and on tentative assessment of the material available on record, they are prima facie connected with the offence falling within the restrictive clause of Section 497 Cr.P.C, therefore, they are not entitled to the concession of bail.

5.So far as the case of petitioners Shah Tamas Khan, Mujahid Khan, Liaqat Ali and Muneer Ahmad alias Hamayoon is concerned, no doubt, Shah Tamas and Mujahid Khan are charged by names in the FIR for giving 'dhanda' blows alongwith unknown accused but they have not been assigned any specific role, therefore, without touching other merits of the case lest it may prejudice the case of either side, on tentative assessment of the case, their case is open to *Zafral ktk *

further enquiry on the ground that complainant who was present inside the vehicle during the occurrence, can be attacked by the sticks is a question to be established at trial.

Though, the learned counsel for the complainant took a plea that challan has already been submitted, therefore, it would not be proper to entertain the bail application but I do not agree with the submission of learned counsel on the ground that submission of challan or commencement of trial by itself is not sufficient to refuse a bail to an accused, who otherwise have a prima facie case to be one of further inquiry as covered by the provisions of Section 497 Cr.P.C.

It is well settled by now that whenever a case is covered under the provisions of Section 497 Cr.P.C as one of further enquiry then it become right of the accused to be released on bail and refusal is an exception. Reference is made to the case titled Muhammad Ismaeel, Vs.

Muhammad Rafique and others, PLD 1989 SC 585, *Zafral ktk *

followed by this court in the case titled Mukhtar vs. Mian Gul reported in 2013 YLR 42 and Qari Hazrat Ali and 2 others vs. The State reported in PLD 2013 Peshawar 120.

Similarly, with regard to the question of common intention, consistent view of the superior Court is that accused cannot be refused bail on the basis of vicarious liability unless he is shown through positive evidence to have played a vital role in the crime. Further more, issue of common intention is normally held to be one of further inquiry unless there are other compelling reasons to reach a different conclusion, that is why in such like cases, the matter is left to the discretion of trial court to establish the fact with regard to vicarious liability/common intention.

Reliance in this respect is placed on 2010 SCMR 1178.

6.For the aforesaid reasons, this bail petition is partially allowed and the petitioners Shah Tamas Khan, Mujahid Khan, Liaqat Ali and Muneer Ahmad alias Hamayoon be released on bail if they furnish bail bonds in *Zafral ktk *

the sum of Rs. 3,00,000/- (three lac) with two sureties each in the like amount to the satisfaction of trial Court, who shall ensure that the sureties are local, reliable and men of means, while bail petition to the extent of Zahid ur Rehman and Habib ur Rehman is dismissed.

Cr.M No. 241/2014.

This is an application for correction of names of accused/petitioners No. 3 and 6, which has inadvertently been written as Zahid instead of Zahid-ur-Rehman and Hamayoon Khan instead of Muneer Ahmad alias Hamayoon Khan.

The mistake seems to be a clerical one,

therefore, this Cr.M is allowed and names of petitioners "Zahid” be read as " Zahid ur Rehman" and " Hamayoon Khan" be read as "Muneer Ahmad alias Hamayoon Khan" in heading of bail petition. Office is directed to make necessary corrections.

Announced.

24.11.2014. JUDGE

*Zafral ktk *