Salim etc Vs the State

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BrroRB PpsseweR ]Irou Counr. Bmrcu Ar o Mmcone/ Da: I-UL-Q4zA Swe-r

Cr. Misc (B.A) No 425 Mof 2(t77 ) t,. ) i ) L:_

l) Salim

2)Suliman sons of Muharnmrd Gul

3)Munir son of Suliman

4)Niaz son of Salim

Residents of Mam Dhera:, Tehsil KzLbal, District Swat presently confined at District Jail Daggar, District Buner.

Accused / Petitioners

VIiRSUS

1)The State

2)Ikram Ali son of Ur;man Ali resident ol Mam Dherai, Tehsil Kabal, District Swat.

Complainant / Respondents

Nn€st:A t x, /iir"il,l.' *','"h 5vrd' FIR No. 3, 12 dated1.8-07-2017 )i o, -' '1r'

Charee under sec ti<lns: 302 3 241147 I 48 t749 337 F Cii) / 332! iE(l / 1s AA

Poli tation Dis Sw

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JUD(]MENT SHEET i

IN THE PESHAWAR IIIGII COURT,

MINGORA BENCH (DAR-ULQAZL), SWAT

(fudicial Departmenq

)'1,,I

Cr.M D.A. No. 425-Ml2017.

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CONSOLIDATED

,,i JADGMENT i.-l

Date of hearing: 19.-!!lJg1Z

Munir ond Niaz) ,'' Pelilioners:-(Salim, Suliman, bv M/S Saeed Ahmad Na sir and Ra zallalt. Advocates.

Resoondents: - fthe State & I ano theil bv Mr. Ralio Ah mad. Astt: Advocate General $nd Saiiad A nwan Ad vocote.

MOHA AD IBRAIIIM HAN. J.- By Cr.M

B.A. No. 425-M of 2017 preferred by Salim, Suliman, Munir and Niaz all family ntembers are seeking jointly their post arrest bail ' in case FIR No. 342 dated 18.7.2017 chargetl under sections 302,324,147,148,149, 337 F (ii)' 337 D n, i -?r r ...: r.l.-t,aanch PPC and 15 A.A registered at Police Station \, - " cvraL - . ,. ii 3 ''''r ' 1r, ,rr Kanju District Swat.

2 There is also connected Cr.M p- B.C.A. No. 107-NI of 2017 separately filed by tkraur Ali the contplainant oI this case against Shah Sawar and Bilal accused/Respondr:nts No'

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(t;.11.) Ilon'blc Irlr..tullicc l\tohnmrrrd lbrrllm Kh rr

I & 2 who have been grante,l the concession of bail by the Court of learned r\dditional Sessions Judge/lzafi Zila Qazi Kabal Swat vide the impugned order d;rted 15.09.2017. This petition is aimed to set aslde the same order and to put these accused/Respondents in judicial lock up till final disposal of this case. Since bcth these petitions arise out of one and the sarne FIR, thercfore, are taken up together by this Court for comrnutual findinl;s.

3 The 'Murasila' based on First Information Report would reveal lhat the cornplainant-parlry consisting of injurecl Usman Ali, Bulhan and the injuLed complainant. himself being present in the hospital for their tieatment in respect oF the injuries being caused to them

,TTTES T

alongwith corpus of Nasr-ud-Din reported tlrat L. v rlr'lt i'!e i, o. Bench i' fr.''1'Il':li | J S'lv aL on the doomful ciay they rvere present in their \l iii:-'i '

"Tang", in the tneanwhile, Saleem, Sulirnan u?' sons of Muhamtrrad Gul , .\4unir', Shah Sawar v' sons of Sulirnan, Niaz son ot' Salinr and Bilal sou of'Isntail canrc tliere and irmougst them the accused Satim asked father of the conplainant (S.U.) l{0n'blt Ilr. Juslic. i\lohrmrrnt lbffhinr Khxn

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as to why they had come te their "Taug", this lead to an alterc;rtion. Accused Saleem gave Churi blows to Nasruddin. Usman r\li was attacked by Suliman through Chuni blows, Burhan was inflici:ed Churri blows by I.triaz and Munir had attacked upon the complainant through Churri trlows, whereas the accused Shah Sawar and Bilal have also inflicted Churri blows to all of them (complainant-pafty). All the Churri blows were proved effectivi: as the complainant-party received injuries on <lifferent parts of their bodies. The Churri blows of accused Salim has caused the death of Nasruddin deceased, so much so, thatlaccused I Salim has resorted to firing upon the complainant-party' but his fire shots: proved

F,TTESTE

ineffective. The occurreuce ii stated [o have E x;r iile o^nrh lt C oLt

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i,lllr,,ct rr

:i'J i, r.Ui tl.llit, 1';:"i been witnessed by many persons and the motive behind the occurreuce is a dispute over the ,?- "Tang".

4 While hearing learned counsel for the Petitioners, learned counsel for the complainant an(l , learned Astt: Advocate (S.D.l llon'blt i\tr,i stict l\{oh mnd lbrrhim Khnr

General for the State, record with their assistance gone through.

5 Learned counsel for the Petitioners referred to 2013 P Cr. LJ 856'(Lahord " Mian an and another the late and on ther" 2012 P Cr. LJ 1293 Lah ord " Saeed,Ahmad vs the Statel 2 12 P Cr.LJ 18E3 (Pesh ur) ,t Khan Ztda vs the State and onolher", 2009 'tote", 1995 SCMR 299 " Mitho Pi tfai vs the S, I P Cr. LJ 112 (Lqho re) " Bashir vs tlrc Slate" tt r and PLJ 2017 Cn C. (Pes howar) 32

v,t the Staten. kt the light of'tl"rese dictums of the Hon'ble superior Courts prayed for the grant of bail. lnversely, learned counsel ilor the complainant assisted by tearned Astt: Advocate General placed reliance on .!WR 299 " Nx-rETE1 Gltula m Akbar v le" 2012 CMR 55 .,,.,,il,{,rn i.,, g.".n p..'.:.' j - i S,|lt' " Mun o t vs the state", 2012 YLR 176l " Dr. tt 2 5 An war Farid vs the Stote and anothe {- P Cr. LJ 13 30 (P eshott,u r )' ' ZnrifKhin vs thc Slute 2004 YIR I 153 (Pesh awar)' " Abtlul Oadir vs Alsm z.el, and ono lher" 200i P Cr. LJ 1404 (Pesh owar) " Znr Guktb trntl 6 others vs

(S.8.) llon'blc illr.,tustirc lllohxmmrf lbrxhim Khnn Nrwnb

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tlre State ond unother" antl 2008 YER 2004 (Peshawar) ,l Siadullah vs the Stute qnd

another'and theleby vehenrently oppt>sed the grant of bail in fa.vour of these accused/Petitioners .

6 As l'ar as the role of the accused/Petitionet Salim is .concerned, who is charged for inflicting Chtrrri blows' to the deceased Nasruddin aged zibout 2312'1 years' The version of the conrPlainant ts fully supported by the medical evidence as all the injuries upot'l the person of injurcd cum deceased were ca'tsed with sharp object' There is recovery of crime Churri from his person at ,i his instance and as token of its pr:oof the photograph of the same is also available on the record. This a<:cused/Petitioner Salim has A1"r€5{ \1e oj ,:oi\ previous history of similar type of inflicting t;. t\i\ . il,or,

1111 .:C!

Chrrrri blows ul)on the person of the t:t'l then 9,:tl[ \lfi ,)- f deccased Akba' Khan brother of the

["IR

complainant Alar:rgir as evident from ':ase No. 431 dated 21 'll 'lgi\1 charged under sections 302, 31 PPC registered a Orangi

(S.$.) llor'blc irlr. Justirc i\tohA m'1 lbrrlilrr l(htrl Ntn'ib

'fown Karachi, pirotocopy of the said FIR has been furnished by learneo counsel for the complainant, which is placed on the record Besides, the occurrence has taken place in broad day light and there is no chance of rnistaken

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identity as the parties are alsrb known tolone and another coupled with the fact that the occurrence occurred in close proximity' Above all, the presence ofthe accused/Petitioner Salim has also been established at the venue of crime, as just after the occulrence he has been examined by the rnedical ofiicer for the injuries being caused on his person hor which one Niaz Khan son of the present accused/Petitioner Salim reported tlte matter to the loczrl police vide Naqal Maci No. 59 dated l8'07'2017' /rrrE5)sT I-leuce, at the moment there is no scope of

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,,-..,:.,,r*tl":,,1 Bench further irtquiry to erllarge the accused/Petitioncr ni 'l : ' 'r"d SNJt.

Salim on bail, lrence to ltis'extent this Cr'M

g- v)' B.A. No. 425'Mof 2017 stands dismissed' 1 \\rhercas test of the Petitioners as by the per versloll of the complainant followed tlre injured medical eviclence would suggest that llon'blc iUr' Jrstic' Mohrmntd lbr,hlnl NhrD l(S.8.)

Burhan had sustained injuries at the hands of Niaz, which are of the fype of Badi'ah. Likely, the Churri blows causing injuries to the injured Usrnan Ali are of the type of Jurh Jaifah and the injures upon the person of lkram Ali are opined by the Medical Olficer as Ghair Jaifah Badi'ah.

In all probabilities, these injuries of the' injured PWs would at rnaximum :entail punishment which would not fall under the prohibitory clause of section 497 Cr.P.C. Therefore, these accused/Petitioners Suliman. Munir and Niaz are entitled to the concession of bail; hence,

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they are asked to I'umish bail bonds in the sum of Rs. 200,000/- (Rupees two lacs) with two sureties each in the like amount l to the satisfaction of learncd Trial Court, who shall *tssrpl ensure that the st:reties are local, reliable and .* x,..{',.f iis.n.n 1 ll-',au merr of means.

Foci,.r

Arnongst the accused/Respondents f ,r)" 8

Bilal is a minor white the role of other accused/Respondent Shah Sawar is also distinct ancl distingr.risl.rable fronr rest of the accused as

both of them havr: been attlibuted gent:ral role (li,R.) llon'blc i\lr. Jrlilic! ivloh$nrnrrd lhrehitrr Nl'rn

of causing Churri blows to all the injured persons even inchrding the deceased but there is no specific injuryr which citn be attributed to each of them. Thus, the impugned bail granting order dated 15.09.2017 in favour of the accused/Respondents passerl by the learned Additional Sessiorrs Judge/Izafi Zila Qazi Kabal I Swat is absolutel;r within tlre arnbit of holding to be proper anc just order which is neither perverse ltor ter fu nc to r)" therefoie, the connected Cr.M B'C.A. Nr ' 107-M of 2017 titled as "Ilcram ,4li vs Shoh Sau'gLL&, othersn l

being shorn of merits stand dismissed' 9 These are the rt:asons of rnY shon order of even date .

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10.Betbre parting u.ith this judgment' pertillent tc: mentlon ' here that the

IS

telltatlve ln observations urade above are pulely t,:';

i.,. . t,tl.'!j :'ii -1 ',ratrr. the case ancl shoulrt iu uo rva/ prejudice of eithcr PartY dr"r; ing trial'

/J/a // / 'A'nnott nced

JUTIGE

Dt t 9.l 0.2017

cql. (S.tl.) llon'blc nl' Juslirc Ilohrr nt& I lhr$lrinr l(lrntr

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