2021 PLP 1319 (MLD)

ALI BAIG, J.

This petition under Section 497(5), Cr.P.C. has been moved by the petitioner/complainant namely Zia-ud-Din for cancellation of post arrest bail granted in favour of the present respondents/accused by the learned Vacations Sessions Judge Gilgit vide bail order dated 14-01-2020.

2. Succinctly, allegations against the respondents/accused as disclosed in the FIR are that on 18-06-2019, at night, the respondents/accused in furtherance of their common intention committed murder of deceased Israr-ud-Din, brother of the petitioner/complainant, on the suspicion that the deceased had illicit relations with the sister of respondents/ accused namely Mst. Shamsia.

3. The learned counsel for the petitioner/complainant has contended that the impugned judgment/order passed by the learned Vacations Sessions Judge Gilgit is contrary to law and facts on the record of the case as such the impugned bail order passed by the learned Vacations Sessions Judge Gilgit is not maintainable and liable to be set aside. The learned counsel for the petitioner has further contended that the respondents/ accused were directly nominated in the FIR with specific role and three eye-witnesses have witnessed the occurrence. Weapons of offence have been recovered by police on the pointation of respondents/accused. The learned counsel for the petitioner has further contended that motive behind the occurrence has been disclosed in the FIR. The learned counsel for the petitioner has further contended that prosecution version is supported by incriminating recoveries and medical evidence, thus, the learned trial court has wrongly granted bail in favour of the respondents/accused which is liable to be cancelled.

4. Conversely, the learned counsel for the respondents/ accused have controverted the arguments advanced by the learned counsel for the petitioners and supported the impugned order passed by the learned Vacations Sessions Judge Gilgit by contending that the learned Vacations Sessions Judge Gilgit has rightly granted bail to the respondents/accused as, before recovery of dead body of the deceased, the police had arrested the present respondents/accused which is illegal. The learned counsel for the respondents/accused have further contended that the learned counsel for the petitioner/ complainant has not agitated/taken grounds for cancellation of bail in his petition filed under Section 497(5) Cr.P.C. The learned counsel for the respondents/ accused have further argued that the proceedings under Section 157 Cr.P.C. were started/conducted prior to registration of FIR which is illegal and against the laid down procedure. The learned counsel for the respondents/accused have further contended that statements of eye-witnesses under Section 161 Cr.P.C. have been recorded after three days of the occurrence which creates serious doubt regarding involvement of respondents/accused in this case.

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

6. Admittedly, the respondents/accused are directly charged in the FIR with specific role. Eye witnesses namely Ashraf Din, Quwat Khan and Mst. Taj Bibi have witnessed the occurrence. Motive behind the occurrence has been disclosed in the FIR. Weapons of offence, i.e., 30 bore Pistol, its empty shells and sticks/sotas have been recovered on the pointation of respondents/accused in presence of independent marginal witnesses.

7. From perusal of record, it reveals that the learned Vacations Sessions Judge Gilgit has granted the concession of bail to respondents/accused for the reason that without dead body of the deceased and prima facie evidence of unnatural death of the deceased, police have arrested the present respondents/ accused and according to PWs namely Quwat Khan, Ashraf Din and Mst. Taj Bibi, it was night occurrence and they identified the respondents/accused. This statement of the PWs requires strict proof with accurate age of moon on the particular date, i.e., 18-06-2019. Secondly, the ocular account of the PWs named above is highly doubtful for the reason that their statements have been recorded after three days of the occurrence.

8. For the purpose of bail, tentative assessment of facts available on record has to be made and, at this stage, the act of sifting the evidence collected by prosecution is neither permissible nor advisable for the sake of fair and just administration of criminal justice.

9. From tentative assessment of incriminating material collected by prosecution, it reveals that the respondents/ accused are prima facie connected with the commission of offence of murder of deceased Israr-ud-Din. As the available material is yet to be proved by recording evidence and the learned Vacations Sessions Judge Gilgit has wrongly granted bail in favour of the respondent accused on the flimsy grounds and in a hasty manner.

10. In these circumstances and facts, I am of the considered view that the learned Vacations Sessions Judge Gilgit was not justified to extend the concession of bail in favour of respondents/accused. Therefore, this petition for cancellation of bail of respondents/accused is accepted and the impugned bail order dated 14-01-2020 granted by the learned Vacations Sessions Judge Gilgit in favour of the respondents/accused is hereby recalled/cancelled. The respondents / accused who are present in Court are taken into custody and remanded to judicial lockup. The learned trial court is directed to issue committal order of the accused/respondents. File. SA/30/GB Bail cancelled.