PLJ 2011 Cr.C. (Peshawar) 905
[D.I. Khan Bench]
Present: Attaullah Khan, J.
YOUSAF KHAN--Petitioner
versus
STATE and 3 others--Respondents
Crl. Misc. No. 3 of 2011, decided on 17.1.2011.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860) Ss. 302, 324, 404, 427, 148, 149--Bail, dismissal of--Petitioner was desperate and hardened criminal attacked on police party resulting in murder of constable--FIR was lodged within thirty minutes and petitioner was named in FIR--Ocular evidence connected the petitioner with commission of offence--Petitioner was remained absconder--Abscondance was not satisfactorily explained--Rule of consistency would not attract to present petitioner--Bail was dismissed. [P. 908] B & C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code (XLV of 1860) Ss. 302, 324, 404, 148, 149--Bail, dismissal of--Two sets of accused in FIR--One set consists of five persons named as accused, second set of five persons was unkown--Co-accused granted bail related to second group, was not charged--Present petitioner was named as culprit and charged for effective firing which resulted in murder of constable and injury to other police constable--Case was quite different from co-accused--Rule of consistency would not attract to present petitioner--Bail was dismissed. [P. 907] A
Mr. Faqir Mehboob-ul- Hameed, Advocate for Petitioner.
Mr. Sanaullah Shamim, DAG for State.
Mr. Sultan Sheharyar Khan Marwat, Advocate for Respondent No. 3.
Date of hearing: 17.1.2011.
Judgment
Petitioner Yousaf Khan s/o Ghulam Rasool, is seeking his release on bail in case FIR No. 96 dated 27.06.2010 registered under Sections 302/324/404/427/148/149 PPC at Police Station, DADIWALA District Lakki Marwat, as his petition for bail has been dismissed by learned Sessions Judge-I, Lakki Marwat on 22.12.2010 and learned Judicial Magistrate Lakki Marwat on 09.12.2010.
2. Facts of the instant case as per FIR are that on 27.06.2010 Sardar Nawaz Khan, SHO Police Station, Dadiwala sent a murasila for registration of case to the effect that on the eventful day, he along with other police party was on routine gasht in the Illaqa and when reached to the baitak of one Naseeb Khan, there a motorcar was of red colour was found parked. The person seated in the motorcar, on seeing the policy party started the motorcar and sped away. The motorcar being suspected was chased by the police party. The motorcar disappeared into the village Abadi of Shahab Khel. The police party parked the official pick-up in the thoroughfare near Masjid, in the limits of Wanda Shahab Khel. Thereafter, the complainant Sardar Nawaz, SHO along with police officials started search of one Rafiullah and Maqsood Ali sons of Hasti Khan r/o Wanda Shahab Khel, required to the local police vide Mad No. 14 dated 26.6.2001, Police Station, Dadiwala. In the meanwhile at about 1830 hours, one Naseeb Khan, Niamatullah, Imran, Qismat Khan sons of Nikam Khan resident of Landiwah, Yousaf Khan r/o Tajazai alongwith five other unknown persons came there in two motorcars, duly armed with Kalashnikovs. As soon as they reached there, they got down from the motorcars and immediately started firing upon the police party with the intention to commit their Qatl-e-Amd. In self-defence the police party also started firing. From the firing of accused persons constable Shehzada F.C. No. 377 got hit and died and similarly Constable Naseeb also sustained injuries from their firing. The accused party while decamping from the spot, also took away official weapons i.e. Kalashnikov along with spare magazines and live rounds from Constable Shehzada, Constable Naseeb and from Constable Inamullah and on the basis of which, the above mentioned FIR was registered against the petitioner and co-accused.
3. Learned counsel for the petitioner argued that co-accused namely Niaz Ali has been bailed out, therefore, the role of consistency also applicable to the case of present petitioner. His second argument is that the present petitioner Yousaf Khan is not the same person as mentioned in the FIR, as his father name is not given. He also submitted that the statement of injured driver recorded under Section 161 Cr.P.C. on 20.7.2010 is in conflict with the FIR.
4. On the other hand, learned private counsel of Respondent No. 3 submitted that the petitioner is directly charged in the FIR and the FIR is promptly lodged within thirty minutes. He further argued that the case of bail of co-accused Niaz Ali is quite different because he includes in the five unknown persons. He argued that statement of injured witness recorded under Section 161, Cr.P.C. is in line with the contents of FIR and if there is any conflict it would not effect the case of the prosecution because such statement before the police is not admissible in evidence.
5. Arguments heard and record perused.
6. The main contention of the learned counsel of petitioner is that the case of present petitioner is at par with co-accused Niaz Ali who is on bail and that the present petitioner is not the person i.e. Yousaf Khan who is charged in the FIR.
7. There are two sets of the accused in the FIR. One set consists of five persons named as accused while the second set of five persons is unknown. The co-accused who was granted bail related to second group and thus he was not charged and named in the FIR. The present petitioner is named as culprit and charged for effective firing which resulted in murder of Constable Shehzada F.C No. 377 and injury to other police constable, so his role and case is quite different from the co-accused Niaz Ali and therefore principle of rule of consistency would not attract to the case of resent petitioner.
8. Coming to the second argument about the identification of petitioner that the name of petitioner is mentioned in the FIR but father name is unknown this again would not effect the case of prosecution because there are number of witnesses who saw the occurrence. Moreover, he was named in the FIR just after thirty minutes of the occurrence. So far the statement of injured eye-witness is concerned which is also of no avail to the petitioner for the reason that it is not in conflict with the contents of FIR. The occurrence took place on 27.06.2010 while petitioner was arrested after recalling his bail before arrest petition on 15.11.2010.
9. Record reveals that on 15.11.2010, the present petitioner was surrendered before Court by submitting his bail before arrest petition and he remained absconder. This abscondance is not satisfactorily explained.
10. In short the petitioner is desperate and hardened criminal as he has attacked on the police party resulting in murder of constable Shehzad Khan and injuring another constable. The FIR was lodged within thirty minutes after the occurrence and the petitioner is named in the FIR. There is ocular evidence which connects the petitioner with commission of offence. Moreover, he remained absconder.
11. Keeping in view the above discussion, I am of the view that the petitioner is not entitled to the concession of bail, therefore, his bail petition is dismissed.
(S.L.) Bail dismissed.
[D.I. Khan Bench]
Present: Attaullah Khan, J.
YOUSAF KHAN--Petitioner
versus
STATE and 3 others--Respondents
Crl. Misc. No. 3 of 2011, decided on 17.1.2011.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860) Ss. 302, 324, 404, 427, 148, 149--Bail, dismissal of--Petitioner was desperate and hardened criminal attacked on police party resulting in murder of constable--FIR was lodged within thirty minutes and petitioner was named in FIR--Ocular evidence connected the petitioner with commission of offence--Petitioner was remained absconder--Abscondance was not satisfactorily explained--Rule of consistency would not attract to present petitioner--Bail was dismissed. [P. 908] B & C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code (XLV of 1860) Ss. 302, 324, 404, 148, 149--Bail, dismissal of--Two sets of accused in FIR--One set consists of five persons named as accused, second set of five persons was unkown--Co-accused granted bail related to second group, was not charged--Present petitioner was named as culprit and charged for effective firing which resulted in murder of constable and injury to other police constable--Case was quite different from co-accused--Rule of consistency would not attract to present petitioner--Bail was dismissed. [P. 907] A
Mr. Faqir Mehboob-ul- Hameed, Advocate for Petitioner.
Mr. Sanaullah Shamim, DAG for State.
Mr. Sultan Sheharyar Khan Marwat, Advocate for Respondent No. 3.
Date of hearing: 17.1.2011.
Judgment
Petitioner Yousaf Khan s/o Ghulam Rasool, is seeking his release on bail in case FIR No. 96 dated 27.06.2010 registered under Sections 302/324/404/427/148/149 PPC at Police Station, DADIWALA District Lakki Marwat, as his petition for bail has been dismissed by learned Sessions Judge-I, Lakki Marwat on 22.12.2010 and learned Judicial Magistrate Lakki Marwat on 09.12.2010.
2. Facts of the instant case as per FIR are that on 27.06.2010 Sardar Nawaz Khan, SHO Police Station, Dadiwala sent a murasila for registration of case to the effect that on the eventful day, he along with other police party was on routine gasht in the Illaqa and when reached to the baitak of one Naseeb Khan, there a motorcar was of red colour was found parked. The person seated in the motorcar, on seeing the policy party started the motorcar and sped away. The motorcar being suspected was chased by the police party. The motorcar disappeared into the village Abadi of Shahab Khel. The police party parked the official pick-up in the thoroughfare near Masjid, in the limits of Wanda Shahab Khel. Thereafter, the complainant Sardar Nawaz, SHO along with police officials started search of one Rafiullah and Maqsood Ali sons of Hasti Khan r/o Wanda Shahab Khel, required to the local police vide Mad No. 14 dated 26.6.2001, Police Station, Dadiwala. In the meanwhile at about 1830 hours, one Naseeb Khan, Niamatullah, Imran, Qismat Khan sons of Nikam Khan resident of Landiwah, Yousaf Khan r/o Tajazai alongwith five other unknown persons came there in two motorcars, duly armed with Kalashnikovs. As soon as they reached there, they got down from the motorcars and immediately started firing upon the police party with the intention to commit their Qatl-e-Amd. In self-defence the police party also started firing. From the firing of accused persons constable Shehzada F.C. No. 377 got hit and died and similarly Constable Naseeb also sustained injuries from their firing. The accused party while decamping from the spot, also took away official weapons i.e. Kalashnikov along with spare magazines and live rounds from Constable Shehzada, Constable Naseeb and from Constable Inamullah and on the basis of which, the above mentioned FIR was registered against the petitioner and co-accused.
3. Learned counsel for the petitioner argued that co-accused namely Niaz Ali has been bailed out, therefore, the role of consistency also applicable to the case of present petitioner. His second argument is that the present petitioner Yousaf Khan is not the same person as mentioned in the FIR, as his father name is not given. He also submitted that the statement of injured driver recorded under Section 161 Cr.P.C. on 20.7.2010 is in conflict with the FIR.
4. On the other hand, learned private counsel of Respondent No. 3 submitted that the petitioner is directly charged in the FIR and the FIR is promptly lodged within thirty minutes. He further argued that the case of bail of co-accused Niaz Ali is quite different because he includes in the five unknown persons. He argued that statement of injured witness recorded under Section 161, Cr.P.C. is in line with the contents of FIR and if there is any conflict it would not effect the case of the prosecution because such statement before the police is not admissible in evidence.
5. Arguments heard and record perused.
6. The main contention of the learned counsel of petitioner is that the case of present petitioner is at par with co-accused Niaz Ali who is on bail and that the present petitioner is not the person i.e. Yousaf Khan who is charged in the FIR.
7. There are two sets of the accused in the FIR. One set consists of five persons named as accused while the second set of five persons is unknown. The co-accused who was granted bail related to second group and thus he was not charged and named in the FIR. The present petitioner is named as culprit and charged for effective firing which resulted in murder of Constable Shehzada F.C No. 377 and injury to other police constable, so his role and case is quite different from the co-accused Niaz Ali and therefore principle of rule of consistency would not attract to the case of resent petitioner.
8. Coming to the second argument about the identification of petitioner that the name of petitioner is mentioned in the FIR but father name is unknown this again would not effect the case of prosecution because there are number of witnesses who saw the occurrence. Moreover, he was named in the FIR just after thirty minutes of the occurrence. So far the statement of injured eye-witness is concerned which is also of no avail to the petitioner for the reason that it is not in conflict with the contents of FIR. The occurrence took place on 27.06.2010 while petitioner was arrested after recalling his bail before arrest petition on 15.11.2010.
9. Record reveals that on 15.11.2010, the present petitioner was surrendered before Court by submitting his bail before arrest petition and he remained absconder. This abscondance is not satisfactorily explained.
10. In short the petitioner is desperate and hardened criminal as he has attacked on the police party resulting in murder of constable Shehzad Khan and injuring another constable. The FIR was lodged within thirty minutes after the occurrence and the petitioner is named in the FIR. There is ocular evidence which connects the petitioner with commission of offence. Moreover, he remained absconder.
11. Keeping in view the above discussion, I am of the view that the petitioner is not entitled to the concession of bail, therefore, his bail petition is dismissed.
(S.L.) Bail dismissed.
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