SHAH NAWAZ and others vs THE STATE and another

' RANA BHAGWANDAS, I.- Leave to appeal is sought against Peshawar High Court, Abbottabad Bench order, dated 21-2-2005 disposing of two criminal bail applications moved by accused Sarfraz, Shah Nawaz, Altaf all sons of Khan-e-Zaman, accused Yaqoob and Younas both sons of Ghulam Nabi and Asif son of Yaqoob. By the impugned order, while the High Court admitted accused Sarfraz, Altaf and Asif to bail in F.I.R. Crime No,323, dated 16-10-2004, registered at Saddar Police Station Mansehra, bail was declined in respect of petitioner Shah Nawaz, Yaqoob and Younas for the reasons that Shah Nawaz appeared to be responsible for causing injuries on skull of deceased Shah Zaman by means of a sharp cutting weapon like a dagger whereas Yaqoob and Younus had caused Sota injuries on the left arm and left leg and clavicle of the deceased.

2. Report of the incident was recorded by Shah Zaman while injured, who was removed to the hospital where the S.H.O. Arrived on receipt of information about the occurrence. Shah Zaman, however, succumbed to his injuries on the next day at about 8-30 a.m. A counter version of the incident was also lodged by petitioner Muhammad Younas through F.I.R. Vide Crime No,424 with the same Investigating Officer after 20 minutes of the registration of the case against the petitioners. It was alleged in this F.I.R. That Shah Zaman, Gulistan, Muhammad Javed, Hassan Khan, Rashid, Naseer and Badr-e-Zaman duly armed with Sotas while Javed carrying a .12 bore shot gun entered upon the land of Muhammad Younus and objected to the ploughing of land. It was claimed that Shah Zaman dealt a Sota blow on the forehead, Gulistan, dealt a Sota blow on right wrist whereas Hassan Khan dealt a Lathi blow on left arm of the complainant. Badr-e-Zaman inflicted a Lathi blow on left ribs whereas Naseer and Rashid inflicted Soti blow on other parts of his body. Accused Javed, however, remained silent, duly armed with a double-barrel gun. According to the complainant, incident was witnessed by his brother Yaqoob, who was also injured at the hands of assailants.

3. We have heard learned counsel for .The parties as well as the State counsel. Referring to the impugned order of the High Court, Mr. M. Bilal, learned Senior Advocate Supreme Court highlighted that in para.6 of the order, High Court has observed that incident appeared to be a result of sudden flare up without any pre-meditation and preplanning, therefore, even at bail stage, role of each accused was to be assessed tentatively. It was in this perspective that while assessing the role played by accused Asif, Sarfraz and Altaf, High Court exercised the discretion of grant of bail in their favour. Bail was, however, declined, as observed earlier, in respect of Shah Nawaz, who was found prima ' facie, responsible for causing incised wound on the skull of the deceased which seemed to be fatal. From the record, we find that the cause of death, as certified by Medical Officer in the post-mortem report, appears to be head injury plus multiple fractures and haemorrhage (probably from all vessels). Prima facie, it appears that there were fractures on both forearms, left humerus and left patella and wound on right forearm and left leg, but the fact remains that while examining the role of petitioner Shah Nawaz, his case would be distinguishable from rest of the accused and, in our opinion, he was rightly found not entitled to the grant of bail. As regards, the role played by petitioners Younas and Yaqoob, their presence at the time of occurrence cannot be disputed as would be reflected from the F.I.R. Of the counter-case. Injuries inflicted by them prima facie do not appear to have directly contributed to the immediate cause of death of the deceased.

4. Both the petitioners are behind the bars for the last more than eight months without the fate of trial in near future, as according to the State counsel three accused are still absconding and at large. Learned counsel for the complainant and the State are not in a position to distinguish the case of petitioners Younus and Yaqoob from those in whose favour discretion of grant of bail has been exercised by the High Court. Tentatively assessing the material on record, we are of the view that the case of Younas and Yaqoob would call for further enquiry and they deserve their release on bail also on account of identical part played by them with those who live been admitted to bail.

This approach would be legally justified on the principle of consistency.

5. For the aforesaid facts and reasons, Criminal Petition No,107 of 2005 filed by accused Shah Nawaz is dismissed whereas Criminal Petition No,123 filed by accused Yaqoob and Younas is converted into D appeal and allowed. Impugned judgment is set aside to their extent. They shall be released on bail, subject to solvent surety in the sum of Rs,2,00,000 each to the satisfaction of the trial Court.