Muhammad Bilal VS The State.

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BEFORE THE PESHAVIIAR HIGTT COTJRT DAR UL

QAZA SWAT,MINGORA

B.A. Petition No.$6f,-.m 7291,

Muhammad Bilal son of Mutrarnamd Shafiq R/o Dilbodi Ogai Mansehra . . .. . ,Accuse,V petitioner

VERSUS

1.The State

2.Muhamrnad Rahman son of Aziz ur Rehman R./o Qarnbar Mohallah Golden Tehsil 6: Districtr S'wat. .... (Rer;pondents)

Case F.I.R. No.237 Dated05lL2l20l6 UtS-392l4l9l11l-pPc " Skha Kot"

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Subject:- - Application U/S-497-Cr.PC lbr the grant of post u*tt bail to the accused/pr:titioner tili the final decision of the cast:.

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RESPECTFULLY SHEWETTI

1)That the accused / petitirlner has been arested by the local police in the above cited case and is now behirrd the bars since his anest. (Copy oJ FIR is here'by atlached os Annex:

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2)That the accused /petitiorrer rnoved ar application before court of Additional Session Judge/ Zilla Qazi Mz-lakand for his post arrest bail, but the same was declined ,vide order dated 0l/08/2017" (Copl'oflhe application and order are altached as Anner: B )

3)1'hat feeling aggrieved from the impugned ortler of the lr:arned lower court, ths accused/ petitioner is humbly

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JI.'DGMENT SIIEET

IN THE PESHAWARIIIGII COURT'

MINGORA BENCH (DAR-UL-q AZA), SWAT (ludicial QePattmenl) Cr. M B.A. No.368 -w2017.

JUDGMENT

Date of hearing: 08.0 9 2011. Bil'sl) bv Mr.

Petitioner:- (Muh ammud leh an zeb Kh alil,.Advocate.

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I J.- The learned

Additional Sessions Judge/Izafi Zila Qazi invqlvement of the Malakand at Dargai mere on accused/Petitioner Muhammad Bilal in the 16rt164 statement iecorded under seqtion

Sohaib son of Cr.P.C nominated by Mohammad regard to the evidence the complainant and with t leading to believe the Petitioner,being habitual nature is to be offender in offences of similar discouraged by refusing him bail' As due to

s^ et such dishonest acts of an accused' the moral at the verge ofcollapse values ofthe society are

ATTEST

and the offence being fall under the prohibitory I xan lre !es h;,.,,1rr Hic hence the clause of section 49? Cr'P'C" I r Cotr Bench ', r ,., Uar.tj l.Qaza, Swal.

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application bearing No. 40/4 of thd year 2017 / was dismissed.

2 Herr:in Muhammad Bilal being

implicated in case FIR No. 237 dated 05.12.2016 charged under sections 392,419,17 I

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PPC registered at Police Station Sakhakot, is optimistic for the grant of his post arrest bail.

3.On t'eturn fronr Saudi Arabia by his flight reaChing herein at Peshawar International Airport at 1500 hours. MuhamrnaC Rahman accompanied b;l his son Mohammad Sohaib hired a Taxi driven by Mtrhamm ad iLada' They took start on 15.30 hours from Peshawar International Airport for their village' The complainant was sleeping on the front seat inclined back ari tired. The driver stopped the l motorcar, so he was avsaken' All of them witnessed the motorcar bearing No' 8801 ,rrS- having registrat;on numbt:r of Punjab' Those o^ who were sitting in the said motorcar'gave them signal to halt, the driver came out of his /d motorcar and was dernanded registration N{w.b

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documents. The driver then given them registration documents of the motorcar alongwith its: key. The complainant, his son and friend of son of the cornplainant by the name of Mohammad Fayaz were also alighted and went nearby. The persons sitting in, the motorcar having nurnber frorn Punjat, had worn Excise Department urniform arid introduced themselves as Excise Department Officials. Out of these porsons, the body search of the complainant was conrlucted ancl the luggage belong to Muhammad Fayazwerc also checked.

Those perso:rs also stated that the registration documents of the motorcar are frrke and asked for its docunrents. The driver, tokl them that he is not in possession of the fake documents. The

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person who 'was sitting; on the front seat of the t said motorcar bearing ,number : from Punjab a^ c Province asked the complainant about the currency in the pockr:t, who was told about possessing Saudi Riyals. The envelope Frf EST containing one lac Saudi Riyals ,vas handed to In Exr It etntn him, who started his motorcar and went towards 1q\ rC ,- q sat Peana :rar H x :,.\l t'r,\n s o(t

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Malakand side. Out of the accused, one sitting on the front seat was having pistol, while the remaining pe{sons sitting on the rear seat were having Kalashnikovs and the drive,r was empty- handed. If, all the accused are brought before him, he can easily identifr them,: thus draking the report in the like manner.

4.Having heard arguments of learned counsel for the Petitioner, learned counsel for the complainant and leamed State counsel for the State, record with their assistance gone

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through.

5 As far a$ ,implication of the accusedPetitioner in cases bearing FIR No. 512 dated 14.05.2012, FIR No..ll49 dated O5.lO.2Ol2, FIR No. l2l2 dated 26.11.2013, ) FIR No. 179 dated 07.06.2015 and FIR No' ll35 dated 09.10.2016 are concerned, he has ;. already been,released on bail in all the above- referred casep. At present, leamed counsel for .,i

:i ATTEST the Petitioner states that the Petitioner is not I Exan n Poghaw.r r H igh Cc '1 Sench involved in any other case except the present lrlitt gcr.r 0.rr'ul'Oa a, S',!at. I N!w.b

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seeking bail. Attested r:opies of the judgments in the above cases bsing furnished, q

which are placed on record. This occurrence has happened on 05.12.2016 later after almost 7 months Muhammad Sohaib, the son of the complainant recorded his statement, who on his own satisfaction has implicated the accused- Petitioner to be an accused who was wearing Excise Department official's uniform and has committed fie offence as stated above in the First information Report. The requirement for the identifir:ation of the accused-Petitioner to have condr.rcted identification parade, record

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does not find mention any such identification parade. Oul of the one lac Saudi Riyals, the Investigating Officer badly failed to recover even some of the Saudi Riyals and above all the ) motorcar bearing No. 2801 Punjr,tb has not been recovered. The Petitiorrer is stated to be a student l,)- v- of Universilr, who might have previous history of his involvenrent, but having no evidence for his ATTESf u conviction he has been erstwhile enlarged on bail. r Exa tl'l iolr C 6cnch There seerhs to tre implication of the Pts\rtrr'l' 'rl ,1i za, Swat l l,':rr9.rr')

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accused/Petitioner on account of his previ ous involvemerrt and he has been named by the son of the complainant seems to be at the behest of

the police.

6 It has beerr held in 2005 yLR 1693 ahore " Muh amntad Sha th e State,, The relevanl, citation is reproduced as under:_

"Involvement o!'accused in number o! crimi'nal lr^ not suf/icient to deprive him of llis ilght of tibctty in the absence of ltis conviction therein by a compelent Court. Ret:overy 6f stolen' pruper4y, primo' facie, omointed to .I civil lrunsacliott between lhe parties which t as to be prove.l lhrough evidence y,zt lo be produ:ed before the Trial Courl. Accus,zd $tos no mor" ,eqi.ired 7or investigalion. Tria,l of accused. wos not in proiTress. Case of accused required farlher inquiry os contemplaied by S. t 497 (:',), Cr.P.C. Offence cilegedty commi,tled by ac,:used did ,,tot lall

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t *l- wilhin the ambit qf prohibitorlt slsuss of S, .197 (1) C,lp.C. Accused was admitted to bail in bircumstances.

In support o1' non-recovery referred

ATTEST

to 2006 yLRt 3088 (Karoch,i) ,','Manu alias Exa ill Peshrwlr Higtr Cor Bench M irr rro riilDi,', rr l.Ca Swit.

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Manthar and 3 oth ers us the Statd" , wherein it has been held'as:-

"Ndt4ing had. been recoverpd lrom the pdssession oJ',three out iof four accusdd peisons which shoied that only vogue allegations ryere made against said accused persans for participation, in the commission of crime Alleged looled cash and bundle of cigoretles were nol recovered from pbssession of said lhree accused persons. Saied accused were teleased on bail in circumslsnces."

Whereas with regard to non- identification test 2005 P Cr.Ll 531 (Lshore) "Muhammad Kazim vs the State" has been

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referred. The relevant citation speaks of:- "Accused was nol named in FIR and he had not been Pul lo an!

idenlilication last Queslion of

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involvemenl ol accused in lhe case needing serious considerafioL; case was covered under subsectioi 721 o1 5.197 Cr.P.C calling for further inquiry into the guill of accused. Disk r' ,r- in question was recovered from the accused alter more lhan one and half monlhs of olteged occurrence. Case 'offence ArTE.syTD against accused atlructed under S. 111 PPC ryhich was not f rr#,,/,- !

Poshawa r High Cdvrr Bench covered ander prohibitory clause of 5.. lrin(,ora/Oar.ul-Oaza, Sual.

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197 (1), Cn.P.C. Accased was slated to 77 be previous non-convicl, Accused was granted, bail, in circ,amstances.

Whereas there is del ay rn lodging of the FIR or statement under section 16l Cr.p.C, such delayed statement could not substitute an FIR. Xef 2010 YLR 1377 (Pesh awaf) ,t Ibrahim Khan and another vs the State and snothet".

7.In view of the scenario, the Petitioner is entitled to the concession of bail.

Hence, he is asked to fumish bail tionds in the sum of Rs. 200,000/- (Rupees two lacs) with two sureties each in the like amount to the satisfaction of leamed Tiial Court, who shall ensure that the sureties are local, reliable and men of means.

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These are the reasons df my short order ofeven date.

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Announced 't^ Dt: 08.09.2017. JUDGE

Certiiied to be trr.ro coPY

(,t- i E 'r:'r p 0 IYawab Pc:h.:r'rri iligll flrtr;l. ili:'- :;4#w,/ i!!horir,l il,l6!r,i,..;!, ir )i :l- ^Y\t