SHAMS UR RAHMAN Versus State

MOHAMMAD IBRAHIM KHAN, J.--- On his self-implication by forwarding an application under section 164 of the Code of Criminal Procedure before the learned Judicial Magistrate Swat presented on 12.07.2016, it refers to certain facts of his involvement causing murder of Mohammad Farooq Khan. The Petitioner later realizing to be released on bail in case FIR. No. 181 dated 07.07.2016 being charged under sections 302, 324, 148, 149, 337(i)(ii), P.P.C. and 19, A.A. registered at Police Station Kokarai District Swat.

2. His previous petition before the Court of learned Additional Sessions Judge II/Izafi Zila Qazi Swat was turned down vide impugned order dated 15.07.2017.

3. The occurrence pertains to happening on Eid day, the complainant Haider Ali who is son of the Petitioner was in injured condition accompanied by the corpus of Muhammad Farooq. At the time when they were taking tea in their house, another brother-in-law by the name of Akbar Ali was also present, after a while on hearing noise, persons by the name of Amanullah, Javaid, Murad, Ishfaq, Sajjad, and Mujahid Ali were present duly armed. They were hitting the door with their kicks and were calling the deceased Muhammad Farooq to come out. Complainant asked all those persons that they have no concern with him and they should leave that place. In the meanwhile, the deceased Muhammad Farooq came outside along with his son Muhammad Rafiq. All those persons started beating the deceased Muhammad Farooq with kicks and fists blows while the complainant and his brother/injured tried to rescue him. Out of the stick blows of all those persons, the complainant and his brother were hit on various parts of their bodies. In the meanwhile, Amanullah and Javaid started firing at Muhammad Farooq, who was hit and died there and then. Later the assailants left the place of occurrence and decamped.

4. Learned counsel for the Petitioner referred to PLD 1962 Supreme Court 502 "Syed Ali Bepari v. Nibaran Mollah and others" and 2016 SCMR 18 "Zaigham Ashraf v. The State and others" and in view whereof has taken the plea of right of self-defence, but on this score the Petitioner cannot be held entitled to be enlarged on bail, as this plea can only be taken in his statement to be recorded before the learned trial Court with strong evidence in this behalf.

5. Having heard arguments of learned counsel for the Petitioner and learned Assistant Advocate General for the State record with their assistance gone through, whereas despite service the complainant is not willing to appear before the Court and this being bail matter cannot be kept pending for indefinite period, therefore, the petition was taken up for hearing on merits.

6. It is almost clear that Petitioner Shams-ur-Rahman was not given any effective role in the First Information Report. For an afterthought to involve himself, he has narrated his own version in application under section 164, Cr.P.C. Later this Petitioner was produced before the learned Judicial Magistrate who even recorded his volunteered confessional statement. At the end of confessional statement he himself being an old man has tried his level best to save the skin of his son Mujahid Ali and has taken the burden to kill the deceased Muhammad Farooq. It gives a smell that the confessional statement has been an afterthought to screen off the real offender from the scene who is his own son. The crime weapon pistol was also handed over by the Petitioner to the police, which was sent for its analysis and the Forensic Science Laboratory Report has confirmed that the crime weapon has been used in the commission of offence. Thereby in all probabilities, the Petitioner Shams-ur-Rahman himself being held responsible to bring home charges against him for the offence which may invite punishment falling under the prohibitory clause of section 497, Cr.P.C.

7. In view of the confessional statement of the accused/Petitioner coupled with recovery of the crime weapon and that too confirmed by the FSL report tentatively the Petitioner is linked in chain in his own prosecution.

7(sic.) In view of what has been stated above, this petition has got no force, which is hereby dismissed.

JK/96/P Petition dismissed.