Saad Ullah Khan Vs The State etc

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Departmenf)

C r.Misc : BA No. I 05 -B 12024

Saad Ullah Khan Vs The State etc.

o\t,',4 Date of hearins 05.04.2024

For petitioner: IvIr. Sultan Mehmood Khan Advocate

For respondents: Mr. Muhammad Rashid Khan Dhirma Khel Advocate

For State: IVIr. Abdul Waheed,

A.A.G.

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Dr. Khurshid lqbal, J.-

1.By this single opinion, I intend to decide both the instant application and Cr.Misc.BA No.106-812024, as both have arisen out of an FIR No.385, dated 17.07.2023, under sections 3241337-A(i)134 PPC of Police Station Domel, Disfiict Bannu. By way of these applications, the petitioners/accused Saad Ullah Khan and Wahab Ullah seek post arrest bail in the aforementioned case.

2.On 17.07.2023, at 19:20 hours, the complainant Najib Ullah Khan, in injured condition, along with the injured Mustafa and Aamir, lodged a report at the KGN Hospital, Bannu. According to his account, on the fateful day, he, along with Mustafa and Aamir Khan, were present in their fields. At about 18:00 hours, the Ghafoor Zaman (S.B) Hon'bte Mr. Justice Dr. Khurshid Iqbal

accused Aamir Ullah, equipped with an axe, Wahab Ullah, and Saad Ullah Khan, armed with Kalashnikovs, arrived there. Accused Aamir Ullah inflicted axe blows on the complainant, causing him injuries. Co-accused Wahab Ullah and Saad Ullah Khan (the present petitioners) fired at Mustafa and Aamir Khan with murderous intention, resulting in their being hit and injured. After the occurrence, the accused fled from the crime scene. The motive for the occuffence is stated to be a dispute over landed property.

3.Pertinently, an injured Nisar Khan lodged a cross version of the incident, which was jotted down in the shape of daily dia.y #38 on the same date. According to his account, he was present in his house when he heard noise. In response, he came out of his house and found accused Sherabat Khan and Habib Ullah, equipped with spades, and Abdullah, armed with a Kalashnikov and stick, present there. At about 18:10 hours, they attacked him, thereby gave him fists, kicks, and spade blows. As a result, he sustained injuries.

4.Arguments heard. Record gone through.

5.Record reveals that the petitioners stand directly charged for a daylight occturence in a promptly lodged FIR. While the parties were previously known to each other, there arises no question of misidentification of the petitioners. The petitioners have been ascribed a role of committing firing at Mustafa and Aamir Khan, leaving them seriously wounded. The prosecution has come up with direct ocular testimony, further supported by the recovery of bloodstains and eight crime empties of 7.62mmbore from the crime scene.

6.Medical evidence also supports the prosecution version regarding the nature, locale, number, and impact Ghafoor Zaman (S.B) Hon'ble Mr. Justice Dr. Khurshid lqbal

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of the injuries sustained by the injured. Injured Aamir has been hit on his supra-clavicular region in the midline, which is, of course, a vital part for the purpose of offence under section 324PPC. The medical report of Mustafa shows that he has been paralyzed for the rest of his life. In this respect, the report of the Paraplegic Centre, Peshawar reads as under:

It is certified that Muhammad Mustafa S/O Najib Ullah Khan (Admission No.14017) R/O Bannu reportedly sustained severe spinal cord injury due to firearm on 17.07.2023 resulting in complete T9 paraplegia.

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This patient will remainparalyzed below the given neurological level for the rest of his life and dependent on his family for most of the activities of daily life.

7.It was vociferously argued for the grant of bail that no specific role has been attributed to either of the petitioners, and they have been ascribed a general role of firing. The contention is repelled for being devoid of any force. By now, it is well settled that the mere fact that a general role of firing has been attributed, or that no specific role has been atfributed to either of the accused, does not, under all circumstances, make out a case of further inquiry within the meaning of section 497 Cr.P.C, rather each and every case has to be decided on the basis of its own facts and circumstances. In the instant case, three assailants simultaneously launched an attempted murderous assault on the complainant party. One started giving axe blows to the complainant, while the other two started firing at both of his companions with their respective Kalashnikovs. All three victims sustained severe injuries in the incident at the same time.

Ghafoor Zaman (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal

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In such circumstances, expecting the complainant to provide either photographic details of the incident or to disclose in the first information report the precise details as to which shots made by the assailants hit whom out of the two injured, would be nothing, but an impossible challenge, particularly when the complainant himself was the victim of axe blows by the time the two simultaneously started firing at the other injured victims. What truly matters is that all three assailants were shown armed with axe and Kalashnikovs, and all of them played an effective role in perpefrating the offence at the same time.

8.Additionally, central to the argument of the learned counsel is the principle of vicarious liability and common intention as adumbrated in section 34 PPC. Once it is tentatively established that all the accused came to the place of the incident with a common intention to perpetrate the offence and notably, took an active part in it as well, it is immaterial whether any specific role was attributed to them or not. It is imperative to state that the principle of vicarious liability can tentatively be determined even at the bail stage provided the material placed on the record justifies it. Reference can be made to Muhammad Imran v. State (2008 PCrLJ 1555 Lahore), Muhammad Subhan v. The State (2002 YLR 1373 Peshawar), and Muhammad Safdar v. Gulzar Ali (1999 PCrLJ 1 Lahore).

9.As for the second version of the incident, it must be kept in mind that not every case with two versions automatically makes an accused entitled to bail, rather the Court has ample powers and duty to tentatively assess the evidence to form an opinion as to the existence of reasonable and sufficient grounds, as adumbrated in section 497 Cr.P.C. Pertinently, the Ghafoor Zaman (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal

record prima facie links the petitioners with the alleged offence, which is hit by the prohibitory clause of the aforementioned section of law.

10.In the result, I would deny these petitions. Announced

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Ghafoor Zr,man (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal