Naik Nawaz Vs The State etc

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IN THE PESHAWAR HIGH COURT,

BANI\U BENCH

(Judicial Department)

Cr.Misc : BA No. 1 90-812024

Naik Nawaz v.

The State etc.

ORDER

Date of hearing 03. .2024

For petitioner: Mr. Hameed Ullah Khan Ahmadzai Advocate

For respondent:

Khan. Advocates

For State: Mr. Abdul Waheed.

A.A.G.

Dr. Khurshid lqbal, J.-

1.The petitioner/accused Naik Nawaz seeks his release on post arrest bail in case FIR No.79, dated 23.03.2024, registered under sections 365-91 5061 452134 PPC at Ghazni Khel Police Station, District Lakki Marwat.

2.Accompanied by her husband Nazar Gul, the complainant Islam Bibi came to the Ghazni Khel police station and lodged a report on 23.04.2024 at 10:00 am. According to the report, on the fateful duy, the complainant was at home with other inmates, while her husband had gone to a jeweler's shop situated at Ghazni Khel Adda. At about 09:20 am, the accused Naik Nawaz (the present petitioner), along with his brother Gul Nawaz and sons Sher Nawazalias Ganu and Asif Nawaz (absconding co-accused), armed with Kalashnikovs, (Ghafoor 7,aman) (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal

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trespassed the house of the complainant, aimed their Kalashnikovs at her, and asked where was her daughter Firdous Bibi (aged about llll2 years)? Her daughter was asleep in the bedroom at that particular time. Subsequently, the accused entered the bedroom, woke up Firdous Bibi, and forcibly took her away on motorcycles-the accused had parked outside the complainantos house-with the intention of subjecting her to illicit intercourse. While leaving the complainant's house, accused Sher Nawaz also took a Kalashnikov of the complainant's husband from the bedroom. Hence, the ibid FIR.

3.Arguments heard. Record perused.

4.Perusal of the record reveals that the petitioner/accused, along with the absconding co- accused, stands directly charged for a daylight occurrence in a promptly lodged FIR for brazenly trespassing the house of the complainant and abducting her barely 10 years old daughter for the despicable purpose of illicit intercourse. Ever since, the abductee has not been recovered and remains missing as of now.

Considering the societal stigma associated with such crimes-which patently tarnish the honour of the victims' families for decades-it is highly improbable that the complainant would falsely accuse someone by putting the honour and reputation of his/trer family members and the abductee at risk for the remainder of their lives. Therefore, in the absence of compelling evidence to the contrary, it cannot be reasonably argued that the petitioner has been falsely implicated. However, no such reason could be urged at the bar.

5.The abduction of women and/or girls of such tender age, that too, from their own homes for the purpose of illicit intercourse, not only constitutes a grave (Ghafoor Zaman) (S.B) Hon'ble Mr. Justice Dr. Khurshid Iqbal

/rr moral offence, but also amounts to a crime against society as a whole. This offence is against Islam, constitution, morality, an6 deffimental to children, the most vulnerable segment of society. Considering the gravity of the offence, it becomes imperative to ensure that justice is served to the fullest extent in such cases by all while adhering to the due process of law.

6.The learned counsel for the petitioner strongly advocated for the grant of bail on the ground that the record is completely silent regarding the specific role allegedly played by the petitioner in perpetrating the offence. This limb of his arguments is devoid of any force and is, therefore, repelled. Relevant to the facts and circumstances is the principle of vicarious liability and common intention as envisaged in section 34 PPC. Once the petitioner, along with the absconding co- accused, trespassed the house of the complainant while armed with a Kalashnikov, aimed the Kalashnikov at the complainant for the sole purpose of abducting her daughter, and collectively executed the job of abducting her daughter for the appalling purpose of illicit intercourse, it is immaterial whether he was attributed any specific role or not. In the circumstances, the petitioner, though tentatively, becomes vicariously liable. It is well settled exposition of law that vicarious liability of an accused can tentatively be determined even at bail stage provided the material placed on the record justifies it. Reference can be made to Muhammad Imranv. State (2008 PCrLJ 1555 Lahore), Muhammad Subhan v. The State (2002 YLR 1373 Peshawar), and Rana Muhammad Safdar v. Gulzar Alt (1999 PCrLJ 1 Lahore). In Rana Muhammad Safdar (supra), the Court unequivocally ruled as under:

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

n tt9. In view of the above discussion, I am constrained to hold that opinion of Syed Kaizam Raza Shamsi, Additional Sessions Judge, Okara is absolutely erroneous and misconceived that the vicarious liability of Gulzar Ali alias Pappoo respondent No.l, who was petitioner before him, could only be determined after the conclusion of the evidence and this question cannot be looked into at bail stage. This impression should be dispelled forever. The criminal Courts functioning in this country can competently discuss and determine whether a particular accused is vicariously liable for the acts of his accused or not even at bail stage."

7.Furthermore, in Aleram alias Alqoo v. State Q0l2 PCrLJ 1132l(arachi), it was ruled that every member of a gang which abducts a person is equally and vicariously liable, and the question of whether one caught hold of a hand or not would be immaterial. It follows that the specific role of the accused is not the prime consideration where he is alleged to be a member of an abduction gafig.

8.The case of Safdar Ali v. State (2011PCrLJ 765 Karachi) was having somewhat similar facts and circumstances. In this case, a woman was abducted with no recovery until hearing the bail plea by the High Court. The role attributed to the accused was of his presence at the crime scene with a pistol. However, the Court did not consider his bail plea worthy of acceptance, and was accordingly refused bail.

9.Be that as it may, the tentative assessment of the record reveals that reasonable grounds do exist, which prima facie shows the involvement of the petitioner in perpetrating the offence. The offence under section 365-8 PPC is heinous and caries capital punishment, falling within the barring provision of section 497 Cr.P.C.

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

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10.I am, therefore, inclined to deny this petition, and I do so. Before parting, it is worthwhile to add that the observations made hereinabove are purely tentative in nature and are limited to the bail plea of the petitioner. Therefore, they shall not prejudice the mind of the trial judge during the trial, where the case shall be decided in accordance with law.

Announced

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