Nisar Ahmad vs Altaf Hussain & State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Cr.M.BCA. No. 30-M/2016.

JUDGMENT

Date of hearing: 08.6. 2016.

Petitioner:- (Nisar Ahmad) by Mr. Abdul Halim Khan, Advocate.

Respondents- ( Altaf Hussain & the State) by Mr. Aurangzeb Khan, Advocate & Mr. Rafiq Ahmad, Astt: Advocate General.

MUHAMMAD YOUNIS THAHEEM, J.- The petitioner- complainant Nisar Ahmad in case FIR No. 93 dated 12.02.2015, Police Station, Wari , District Dir Upper, registered under sections 302, 148, 149 PPC has asked for recalling of bail granted to the accused-respondent Altaf Hussain by learned Additional Sessions Judge/Izafi Zilla Qazi, Dir Upper, vide his order dated

2.As per contents of the F.I.R, the petitioner- complainant Nisar Ahmad charged the accused- respondent Altaf Hussain alongwith other co-accused for murder of his daughter Mst. Rabia aged about 16/17 years.

3.Arguments heard and record perused.

4.No doubt, bail once granted should not ordinarily be cancelled because the principle of cancellation and granting of bail are different. Although, the Courts have to be slow in cancelling the bail, yet Nawab

there is no absolute bar when there is sufficient material available on the record, which prima facie connects the accused with the commission of offence.

The record reveals that the accused-respondent alongwith co-accused have been directly charged by the complainant for murder of his daughter, who had been tortured and done to death in brutal manner by giving her electric shocks. The deceased was engaged to one Asif, who is still absconder, while the present accused/respondent is brother-in-law of the deceased and brother of Asif. The learned Additional Sessions Judge concerned, while granting bail to the accused/respondent No. 2 vide impugned order has totally misread the material available on record as the role of present accused/respondent is considerably different and distinguishable from those co-accused, who have been granted bail by this Court. The bail granting Court had wrongly applied the principle of consistency and instead of evaluation of material available on record improperly had assessed the facts of the case only in view of said principle of consistency.

Even tentatively present accused/respondent was none else but real brother of the absconding accused Asif, who actively participated in the commission of offence by arranging UPS, electric wires etc and giving electric shocks to the deceased. This fact further got support from the statement of accused/respondent recorded under section 161 Cr.P.C, wherein he had narrated the Nawab

whole facts of this unfortunate incident and also admitted that he was part of this unlawful assembly with specific role, who had tortured and done to death a young lady of 16/17 years under the garb of 'Ghairat'/ 'Izzat', so, when the occurrence is unseen one, even statement of an accused recorded under section 161 Cr.P.C could be taken into consideration. In this regard, reliance is placed on case titled as "Muhammad Yousaf Butt vs P.C. Abdul Lateef Shar and another" (2012 SCMR 1949). Besides, the accused/respondent remained absconder for considerable long period of one year without advancing any plausible explanation in this regard. No doubt there is no cavil with this legal proposition that absconsion alone cannot be made basis for refusal of bail, when accused is otherwise entitled to the concession of bail, but in context of present case, wherein the deceased was none else but close relative of the accused/respondent, so, his intentional disappearance soon after the occurrence is tentatively a believable link in respect of involvement of the accused, but this vital aspect of the case too, carelessly ignored by the Court while granting bail to accused/respondent No. 2.

5.Moreover, trial in the case has already been commenced, inasmuch as charge has been framed against the accused and the case was fixed for statements of PWs, when in the meanwhile record of the case was requisitioned to this Court in connection with Nawab

the instant petition. Thus, on tentative assessment of the case, there exist reasonable grounds available on the record to believe that accused/respondent No. 2 is prima facie connected with commission of offence. The accused person involved in above like case, did not deserve leniency. Therefore, I am of the view that discretion has been carelessly, erroneously and wrongly exercised by the learned Additional Sessions Judge concerned in favour of respondent No. 2 by considering the principle of consistency in a very casual manner and so had enlarged the accused/respondent No. 2 on bail without taking into consideration the role of each and every accused as well as gravity of the offence, wherein as stated earlier a young girl student of 9th class was tortured, brutally and killed through electric shocks.

6.For what has been discussed above this Court found, the impugned bail granting order dated 02.3.2016 as perverse in the eye of law, so, resultantly the same is set aside and the bail allowed to the respondent Altaf Hussain is hereby recalled. He is present in court so is taken into custody and be dealt with in accordance with law.

These are reason of my short

order of even date.

Announced Dt. 08.6.2016.

JUDGE

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