2010 PLP 149 (GBLR)

SYED JAFFAR SHAH, J.

The petitioner have sought leave to appeal against orders dated 15-9-2009 passed by Single Bench of Chief Court Gilgit-Baltistan in Cr. Misc. No.105/09, whereby declining the concession of bail to the present petitioner in a case registered with Police Station Gilgit City under sections 302/324/34/118/212/216, P.P.C. read with sections 6/7, 21-1 of ATA and sections 4/5 of Explosive Act vide F.I.R. No.120/2009.

2. The brief facts leading to the present petition are that on 20-4-2009 at about 21:30 hours some unknown assailants attacked the vehicle of the then Deputy Speaker of Northern Areas Legislative Assembly Syed Asad Zaidi with sophisticated weapons resultantly one Shahid Hussain sitting in the vehicle died at the spot while Mr. Zaidi and his driver received injuries and later on succumbed to the said injuries. On receiving the information the local Police registered the case against unknown culprits and the investigation of the case was conducted by a joint investigation team headed by DIG Crime Branch in terms of section 19, ATA, the investigation team arrested the present petitioners alongwith three other co-accused namely Mir Baz Khan s/o Mirza Khan, Amjad s/o Faridoon, and Shakeel s/o Abdul Hameed while some others are stated to be absconded and after necessary investigation challaned them under sections 302/34, 118, 212, 216, P.P.C. read with sections 6/7, 214,213 ATA.

3. After their arrest the petitioners and other accused applied for grant of bail before the Judge Anti-Terrorist Court No. 2 Gilgit, who vide order 10-8-2009 granted bail to one co-accused namely Amjad and refused to grant bail to the extent of rest of the accused including the present petitioner. They and other two accused unsuccessfully approached the Chief Court Gilgit-Baltistan but the single Judge of Chief Court declined grant of bail in favour of petitioners.

4. We have heard the learned counsel for petitioners and Advocate-General for the State. The learned counsel for the petitioners submitted that except a statement recorded under section 21-H ATA purported to be a confessional statement and recovery of weapon of offence there is no material on the record to connect the petitioners with the present crime. He further submitted that as per prosecution case the present petitioners are not directly involved in the commission of the crime and they have been made scapegoats by the prosecution to fill in gaps. He further went on arguing that the petitioners are innocent and no active role has been attributed to them in the commission of offence.

5. The learned Advocate-General on the other hand vehemently opposed the petition and controverted the above submission. He contended that the petitioners are involved in a heinous crime, and sufficient material is available against them on the record beside their confessional statement and recovery of crime weapons.

6. Having heard the learned counsel for the parties at length and gone through the available record. We have come to the conclusion that the occurrence had taken place in dark night and no witness was shown by the prosecution to have seen the occurrence. No doubt the investigation team has recovered one .22 bore rifle and a 7.62 rifle on the pointation of petitioner Arshad Wali but from tentative assessments of the available record the recovery in no way is sufficient to connect the petitioner with the crime especially when it is made after a considerable delay. It is also not the case of the prosecution that the petitioners have used the recovered weapons in commission of the offence. Allegation against the petitioners is that they have handled the weapon of offence used in the commission of offence.

7. So far as confessional statement of the petitioners is concerned it is not understandable as to why .the investigation team has not adopted a recognized and normal course of producing the petitioners before a Judicial Magistrate for recording their confessional statement and what were the reasons to record statement under section 21-1 of ATA by Superintendent of Police who can never be thought to be an independent and impartial person. Be that as it may, this confessional statement if believed to be true and correctly recorded even then cannot be made basis for conviction of the petitioners without further corroboration from perusal of available material it transpires that there is no direct evidence to connect the petitioners with the commission of offence.

8. As regards the ground of seriousness and heinousness of the offence is concerned, concession of bail cannot be withheld merely on the plea of heinousness of the offence when an accused person is otherwise entitled for grant of bail. We observe that the investigation team consisting of senior officials has failed to conduct a fair, transparent and untainted investigation. In such cases the investigation team/officers should very vigilantly conduct the investigation in a transparent and fair manner in accordance with law and avoid to adopt traditional methods of investigation.

9. For what has been discussed above the case against the petitioners calls for further inquiry into their guilt within the purview of section 497 (2) Cr. P.C. This petition is therefore, converted into appeal and allowed. However our above observations are purely tentative in nature and the trial Court shall proceed with the case uninfluenced by this order.

10. Our short order by virtue of which the petitioners were allowed bail reproduced hereunder is treated as part of this order. "For the reasons to be recorded later on, this Criminal Petition is converted into an appeal and bail is allowed to the appellants in the sum of Rs. two lac (200,000) each with two sureties in the like amount to the satisfaction of the trial Court." Petition converted into appeal and allowed. N.H.Q. /36/Glt. Appeal allowed.