2020 PLP 883 (MLD)

ALI BAIG, J.

Petitioner has applied for grant of post arrest bail in case FIR No.47/2018 dated 24-08-2018, registered at Police Station Basin Gilgit, under sections 302/34, P.P.C., at the behest of one Ghulam Nabi son of Fazal Wali resident of Dodoshal, the complainant.

2. It is pertinent to mention here that earlier the petitioner/accused moved bail petition in the court of the learned Vacations Sessions Judge Gilgit which was dismissed by the learned Vacations Sessions Judge Gilgit vide order dated 24-12-2019, hence this petition.

3. Succinctly, prosecution case as unfolded in the FIR is that on 24-08-2018, deceased Fazal Wali and Murad Wali were working in under construction mosque at Kargah Gilgit. At 10 a.m., on 24-08-2018, principal accused namely Mohammad Zaman son of Aziz Khan and Shaker Wali son of Hajat Wali, residents of Dodoshal, District Diamer, appeared on the spot and called the deceased by name and the deceased went towards the deceased. In the meantime, the above named accused opened fires on the deceased with fire arms which hit the deceased Fazal Wali, who expired on the spot. The above named accused escaped from the scene of occurrence. The occurrence was witnessed by Shaker Shah son of Asal Dad and Abdul Qahar son of Sher Wali. The present petitioner was not nominated in the FIR. Later on, PW namely Nazeer Hussain son of Abdul Razaq has stated in his statement recorded under section 161, Cr.P.C. that in his presence the present petitioner had directed the principal accused to murder the deceased Fazal Wali at Chilas.

4. The learned counsel appearing on behalf of the petitioner has contended that the petitioner/accused is innocent and he has falsely been implicated in this case by the complainant. The learned counsel for the petitioner has further contended that the petitioner is not directly charged in the FIR and admittedly the petitioner was not present on the spot at the time of occurrence. The learned counsel for the petitioner has further argued that the present petitioner has been involved/implicated in this case on the basis of statement of one PW namely Nazeer Hussain recorded under section 161, Cr.P.C. which was recorded after five days of the occurrence. The learned counsel for the petitioner has further argued that except statement of above named PW, no evidence against the petitioner has been collected by the prosecution; hence, the petitioner is entitled for concession of bail.

5. On the other hand, the learned Deputy Advocate General has vehemently opposed this petition by contending that the petitioner/ accused has abetted/ facilitated the principal accused in commission of murder of the deceased and challan against the petitioner/ accused has been submitted in the trial court and trial of case of the petitioner is in progress, therefore, bail petition of the petitioner may be dismissed.

6. I have carefully considered the submissions made by the learned counsel for the parties and perused the available record with their able assistance.

7. From perusal of contents of FIR, it transpires that the petitioner/ accused is not directly charged in the FIR and admittedly the present petitioner was not present at the place of occurrence at the time of occurrence. Motive behind the occurrence has not been disclosed in the FIR. Except statement of one PW namely Nazeer Hussain recorded by the police under section 161, Cr.P.C, no any other incriminating material has been collected by the police against petitioner/accused during investigation. Statement of above named PW was recorded under section 161, Cr.P.C. by the police after five days of the occurrence, wherein, he has stated that at the behest of petitioner, the nominated accused had committed murder of deceased Fazal Wali.

8. The occurrence was taken place on 24-08-2018 and statement of above named PW under section 161, Cr.P.C. was recorded on 29-08-18 and the above named PW kept silent/mum for about five days of the occurrence; hence, this creates serious doubt regarding involvement of the present petitioner in the aforesaid occurrence and false involvement of petitioner in this case cannot be ruled out. Implication of the present petitioner in this case seems to be result of after-thought. Thus, this is certainly case of further inquiry.

9. The upshot of the above discussion is that I am inclined to allow this petition. Consequently, the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.500,000/- (Rupees Five Lac) with two sureties each in the like amount to the satisfaction of the learned Vacations Judicial Magistrate at Gilgit. File. ADN/3/GB Bail allowed.