2018 PLP 1765 (YLR)
NAKAF alias NAQAB KHAN — Petitioner Versus The STATE and another — Respondents
| Citation | 2018 PLP 1765 (YLR) |
| Forum / Court | Peshawar (Mingora Bench) |
| Bench Members | Mohammad Ibrahim Khan, J |
| Parties | NAKAF alias NAQAB KHAN — Petitioner Versus The STATE and another — Respondents |
| Primary Law | Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2018 PLP 1765 (YLR)?
This judgment primarily cites: Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2018 PLP 1765 (YLR)?
The case was heard and decided by the Peshawar (Mingora Bench) bench comprising: Mohammad Ibrahim Khan, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2018 PLP 1765 (YLR) (NAKAF alias NAQAB KHAN — Petitioner Versus The STATE and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Sajjad Ahmad Jan for Petitioner.
- Rafiq Ahmad, Asstt: Advocate-General and Hazrat Rehman for Respondents.
- 5. Having heard arguments of learned counsel for the Petitioner, learned counsel for the complainant and learned Astt: Advocate General for the State, record with their assistance gone through.
Headnotes / Summary
S. 497
Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(vi), 337-E & 34
Attempt to commit qatl-i-amd, causing shajjah-i-khafifah, munaqqilah, ghayar-jaifah, common intention
Accused was named in the FIR with the role to have fired upon the complainant along with fire shots attributed to co-accused, but said fire shots were fired simultaneously; which needed examination of the complainant as to when the fire shots were fired at the same time by accused and co-accused and that, how the complainant had witnessed the fire shots of accused having been hit by shot on his right knee
Medical report showed that the injuries sustained by the complainant, were of the type 'ghayar-jaifah munaqqilah and shajjah-i-khafifah', which entailed punishment of Daman and could also be punished with imprisonment of either description for a term which could extend to two and seven years respectively as Tazir
Question as to whether accused had intention to kill the complainant was yet to be established
Co-accused who had already been enlarged on bail, had also fired upon the complainant, whose fire shots were stated to be ineffective
Matter to determine was as to why the accused was selected as choice for effective firing upon the complainant
Acquittal or conviction was always based on the evidence to be adduced by the prosecution; absolute right rested with the Trial Court, yet, when there were reasons to believe that the punishment could not fall within the prohibitory clause of S.497, Cr.P.C., then such an accused was entitled to the concession of bail
Accused was enlarged on bail, in circumstances. [Case-law referred]
Judgment & Decree
MOHAMMAD IBRAHIM KHAN, J.
On many folded reasons, the learned Additional Sessions Judge-I/Izafi Zila Qazi Dir Upper while disposing of B.A. No. 134/IV of the year 2017 titled as "Nakaf Khan v. The State and another" observed that an accused being charged in the FIR with certain specific role being given to him of firing upon the complainant. The medical report is in consonance with the version of prosecution, there are reasonable grounds to believe that the offence with which the accused has been charged falls within the restrictive clause of section 497(1), Cr.P.C. The occurrence being taken place in broad day light. There is no misidentification and there are reasons to believe that the witnesses may be truthful and supportive of the complainant, then such an accused/Petitioner is not entitled to the concession of bail. These are the extracts of the order of learned trial Court dated 25.07.2017.
2. Here the Petitioner seeks post arrest bail in case FIR No. 181 dated 09.06.2017 being charged under sections 324, 337-A(i), 337-F(vi), 337-E, 34, P.P.C. registered at Police Station Gandigar District Dir Upper.
3. Under the observation made in the order dated 12.9.2017 rendered by this Court, the Investigating Officer/Station House Officer of Police Station Gandigar was directed to levy proper section of law in respect of the hurt being caused to the injured/complainant. After doing the needful by the concerned Station House Officer, the learned counsel for the Petitioner moved Cr.M. for addition of the said levied section of law in the memo of bail petition, which were-accordingly inserted in the record.
4. Asif Ali who was lying along with other injured at Tarpatar hospital reported that on the day falling on Friday he came out after performance of Juma prayers. He witnessed Naqab Khan, Hayat Khan, Sardar Alam sons of Saidool and Said All son of Lalai, who had previously altercated with the complainant over grazing of goat. Naqab Khan the present Petitioner along with Hayat Khan drew their pistols and started firing at the complainant. These fire shots hit him on his knee, while the pelted stone of Said Ali hit him on his head. The other injured Bakht Sardar was hit by pelted stone of Alam. The occurrence is witnessed by Janat Ali, Wahidullah and others. Motive behind the occurrence is dispute over forest.
5. Having heard arguments of learned counsel for the Petitioner, learned counsel for the complainant and learned Astt: Advocate General for the State, record with their assistance gone through.
6. Learned counsel for the Petitioner referred to 2015 YLR 2595 (Sindh) "Abdul Razzaq v. 1st Additional Sessions Judge and another", 2001 YLR 2056 (Peshawar) "Said Rehman and another v. The State and 3 others", 2003 PCr.LJ 1149 (Peshawar) "Sher Khan and 2 others v. The State and another", 1995 PCr.LJ 862 (Peshawar) "Abdul Ghaffar v. The State and another", PLD 1992 Peshawar 111 "Karam Ellahi v. The State", 2013 PCr.LJ 1754 (Lahore) "Ghulam Mustafa v. The State and another", 2004 PCr.LJ 1646 (Peshawar) "Raeed Shah v. Gulan Shah and another", 1999 PCr.LJ 230 (Peshawar) "Aurangzeb v. The State and another", 2012 PCr.LJ 1502 (Lahore) "Muhammad Nadeem and another v. The State", 1998 MLD 1184 (Peshawar) "Ikramullah v. Sami Ullah and another", 1998 SCMR 1528 "Haji Maadin and another v. The State", 1996 SCMR 1845 "Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others". In the light of these dictums of the Hon'ble superior Courts prayed for the grant of bail. Inversely, learned counsel for the complainant assisted by learned A.A.G. placed reliance on 2008 SCMR 678 "Muhammad Rafique v. The State", 2009 YLR 1818 (Peshawar) "Fazal-ur-Rehman v. Khalid and 2 others", PLD 1993 Peshawar l5l "Muhammad Ashraf v. Duarrivaman and another", 2004 P Cr.L J 968 (Peshawar) "Muhammad Shafiq v. Muhammad Mir Khan", an reported judgment of this Court rendered in Cr.M B.A. No. 131-M of 2017 "Muhsin Islam and Salih Islam v. The State", 2005 SCMR 1402 "Arif Din v. Amal Khan and another", 2013 SCMR 1527 "Liaqat Ali v. The State and others", 2012 YLR 1761 (Peshawar) "Dr. Anwar Farid v. The State and another", 2017 MLD 444 (Peshawar) "Yasir v. The State and another" and 2008 SCMR 678 "Muhammad Rafique v. The State" and thereby prayed for utter dismissal of the bail petition.
7. Although, the Petitioner is named in the First Information Report, who has been given the role to have fired upon the complainant Asif Ali along with fire shots being attributed to Hayat Khan co-accused, but these fire shots were fired simultaneously, it needs to examine the complainant as to when the fire shots were fired at the same time by Naqab Khan and Hayat Khan, how the complainant has witnessed the fire shots of the accused/ Petitioner having hit him on his right knee. According to the medical report the injuries being sustained by the complainant is of the type of ghayr-jaifah munaqqilah and Shajjah-i-khafifah, which entail punishment of Daman and may also be punished with imprisonment of either description for a term which may extend to two and seven years respectively as ta'zir.
8. It is also yet to establish if the accused/Petitioner had intention to kill the complainant he would have rightly fired straight on the complainant. The co-accused Hayat Khan who has already been enlarged on bail has also fired upon the complainant, whose fire shots were stated to be proved ineffective. It is also a matter to think over as to why accused/Petitioner Naqab Khan was selected as choice for effective firing upon the person of complainant.
9. Above are the dictums of the Hon'ble superior Courts as referred by learned counsel for the Petitioner, the judgment reported in 2008 SCMR 1621 tilted as "Umar Hayat v. The State and others" speaks off:-- "Accused had allegedly fired 4/5 shots from his pistol on complainant, out of them one fire hit on his left knee. Said injury fell within the ambit of S.337-F(v), P.P.C. Accused had rightly been granted bail Trial Court and High Court while cancelling the same had failed to observe whether bail granting order was arbitrary, capricious or fanciful. Petition for leave to appeal was converted into appeal and allowed and accused was granted bail in circumstances."
10. The acquittal or conviction is always based on the evidence to be adduced by the prosecution, this absolute right still rest with the learned trial Court yet when there are reasons to believe that the punishment may not fall within the prohibitory clause of section 497, Cr.P.C. then such an accused is entitled to the concession of bail.
11. In view of the above, the Petitioner is enlarged on bail subject to his furnishing bail bonds in the sum of Rs. 200,000/- (Rupees two lacs) with two sureties each in the like amount to the satisfaction of learned Trial Court, who shall ensure that the sureties are local, reliable and men of means.
12. These are the reasons of my short order of even date. HBT/105/P Bail granted.