Shams-ur-Rahman Vs the State

BEFORE THE PESHAWAR HIGH COURTMINGORA

BEN CH / D AR- UL - QAt-A SWA', r Bail Application No 33L of 2017 tr--' ms ur Rahman S/o Amir Chaman Khan IVo Mohallah t2 Gul Kokarai, Tehsil Babozai, District Swat presently at ct ]ail Daggar as under trail prisoner...... ..Petitioner

F-

r-r

IIERSUS

The State.

) Haider Ali S/o Shams ur Rahman lR/o Langar: Khail Kokarai, ,. Tehsil Babozai, District Swat. (Cornplainant) / z) tvt"t. Khwadija widow of deceased Muhamm;rd Farooq, /4) Muhammad Shah Khan S/o Shahzad Khan (Father of deceased),

75)Mst. Shah-e-Ezat Bib!-,wife of

Muhammad Shah Khan d j liother or deceasJd|"Elo M atg Lor TehsrI Bqbo]or Respondents - -FILEDTO-onV blst'riit 5 wd'*

V

24 JUt2917

AdditionalRegistrar CASE FIR NO. 181 A:i -t

DATED 07-07-2076

TTNDER SECTTON 302-324-74*749-337-A(t)(-tl) PPc 79-AA

P OLICE STATION: KOKARAI, DISTRICI' SWAT

CA N 497 CR, FOR OFP o N

BAIL TILLTHE FTNAL POSAL OFTHE

i Respected Sheweth:

1.That the accused / petitioner is malafidely charged by the police in the above tilted case and since then behind the bar. (e-qPy-!rf FIR is attached as Ann e:<ure "A")

2 That the petitioner submitted bail application befor: the Additional Session Judge II Swat, which w;rs turndown vide impugned order dated 15-07-2017 (Copi es of bail o etitibn & er dated 15-07.2 are atta as exure "8"8."c

I

J That the respondents No. 2 is complainant while respondents No' 3 to 5 are Major legal heirs of the deceased, while they are not made a party in

I

I

"]IJDGMENT SHEE'I

IN THE PESHAWARHIGII COURT,

MTNGORA IIENCH (DAR-ULQAZA), SWAT

(ludicial Department) Cr.M . No.336-l\{/20 17

TUDGMENT,

Date of hearing: 16.08.20 17.

Petitioner: - '(Shams- ur-Rahman) bv Ha fiz. iI(.

Ashfa Ahmsd, Advocate.

Resoonde 'nts:- (the State & I anoth ef b Mr.

i:', -i( i t-' .t Ra Ahm Astt: Adt'ocile GeneraL MOEAMMAD IBRAHIM KIIAN. J.'' On his self- implication b'y forwarding an application under section 164 of the Code of Crimiiral Procedure before the l,:amed Judicial Ma;3istrate Swat presented on 12.07.2016, it refers to certain facts of his involvemr:nt causing murder of Mohammad Iiarooq Khan. The Petitioner later l realizing to be released on bail in case F'I'R' No. 181 date<|07.07.2016 being charged under sections 302,'.\24,148,149,337 (i) (ii) PPC and rl 9 A.A. registered at Police Station Kokarai \ry'--District Swat.

d^ iITTEST D 2. His previous petitior', before the Ex ll1 r Court of learned Additiopral Sessions Judge- i iiLilr Coiu 11 Bench ', r:lr ir* ltr Sv/al lr i.tjt'r:r il'ii ir l.ilnl a,

Nrwab

I

a i

t- Illlzaft Zila Qtazi Swat was turnerl down vide s' impugned order dated 15.07.2017.

3 The occurrence pertains to happening on Eid day, the complainant Haider

I

Ali who is son of the Petitioner w,ns in injured condition acc;ompanied ,by the corpus of Muhammad Farooq. At the time; when they were taking tep in their house, anolher brother- in-law by the name of Akbar Ali was also present, after a while on hearing noise, persons by the name of Amanullah, Javaid, Murad' Ishfaq, Sajjad, and Mujr*rid Ali were present duly armed. they were hitting the door with their kicks and were calling the deceased Muhammad Farooq to come ou{. Complainant asked all tho.le persons that they have no l concern with nim and they should leave that place' In the meanrvhile, th; deceased \t Muhammad Farooq came outside alongwith his t g^-ll- son Muhammd Rafiq' All those persons started beating the de';eased Muhammad }rarooq with ATTFSTqR kicks and fists blows while the complainant and r*.,'({r.".n

F.:.,.:,

r', 1", 1,,,."00.u, s"at' his brother/injured tried to iescue him' Out of j l. rr 'i"-

N.wrb

rI -,

J

)- the stick tilows of all those persons, the complainant and his brother were hit on various parts of their bodies. In the meanwhile, o Amanullah and Javaid startbd firing at i

Muhammad Farooq, who was hit and died there and then. Later the assailants left the place of occulTence and decamPed.

4.Learned counsel for the Petitioner referred to PLD 1962 e o urt 502

aa d AIi BeDan vs Nibaran Mollahand others " und 201 6 SCMR 18 aa As

vs the State and o thers" and in view whereof has taken the plea of r:ight of self-defence, but on this score the Petitioner cannot be held entitled to be enlarged on bail, as this plea can only be taken in his statement to be recorded l before the leamed tri4l Court with strong evidence in this behalf.

E^

t a 5. Ilaving heard argum-e,nts of learned Astt:

counsel for the Petitioner and ,leamed with Advocate General for. the State, record ,t'.il their assistarlce gone through, whereas despite i

N.w.b

service the cornplainant is not willing to appear before the Court and fhis being bail matter cannot be kept pending for indefinite period, therefore, the 1:etition wiu taken up for hearing on merits.

6 It is almost clear theJ Petitioner Shams-ur-Ralunan was not given any effective role in the First Information Report. For an afterthought to involve himself, he has narrated his own version in application under section 164 Cr. P.C. Latr:r this Petitioner was produced before the leanred Judicial Magistrate who even recorded his volunteered t:onfessional statement. At the end sf ,;onfessionirl statement he himself being an old man has tried his level best to save the skin of his son Mujzhid Ali and t has taken the burden 1o kill th,: deceased Muhammad Farooq. It gives a sm,:ll that the r)- confessional statement ha; been an tLfterthought to screen off the real oflbnder fronl the scene who is his owrr son. The ciime weapon pistol

^YTES':ID

Exnrfiirftr was also hauded over by the Petiti'rner to the PeEhgti rr iliqlr Ct,r.trt Er:nch iii;,rrJarr,rlJ-iar.irl-il.r:;l S!vli. police, which v'as sent fcr its analysis and the Nrwrb

\l

Forensic Science Lab'rratory F"eport has

hd5 been used confirmed that the crime weapon r\ in all in the commission of offence' Thbreby probabilities, ihe Petitioner Shami-ur-Rahman i.

himself being held resdonsible tolbring home j

offence which may charges against him for the l the prohibitory invite punishrnent falling under clause of section 497 Cr'P'C' j

7.In view of the ' confessional coupled with statement of the accusediP'etitioner and that too recovery of the crime weaponi the confirmed lly the FSL report 'tentatively Petitioner 1S linked in chain in his own prosecution'

1 ln view of what has been stated got no force, which is above, this Petition has t herebY dismissed' I --l q- An no un ced. JUDGE Dt: 16. 08.2 017

Gertif ict! 1a lrc true coPY q-l r1 Ir ER

,;EW"W/

Peshav;ar lii2l' 4crtrl, llii d r( [.lttotirfr,ljita, ;,

Nrrrb