2017 PLP 163 (YLRN)

MALIK HAQ NAWAZ, J.

The petitioners were booked for the offences under sections 302/324/337-F(iii)/34, P.P.C. vide FIR No. 23/16 dated 29-10-2016 registered at Police Station Gonar Farm, District Diamer.

2. After completion of necessary investigation and codal formalities, they were committed to judicial lock up to face trial. The petitioners moved a post-arrest bail application before the learned trial Court which was declined up to extent of petitioners. Whereas, the facility of bail was extended to one of the co-accused namely Mujrab son of Rafiullah, by means of judgment dated 22/12/2016.

3. The petitioners being aggrieved of the said order assailed the same before this Court on many fold grounds.

4. The learned counsel for the petitioners submits that the case of prosecution is false and the complainant party has thrown a wide net and involved the innocent persons in the instant case. Per learned counsel the very foundation of the case of prosecution has been shaken as one of the co-accused Saddar son of Kalimullah, who is real brother of accused/petitioner Umer Rehan has been released by the police under section 169, Cr.P.C. though in FIR fatal firing is attributed to him and one other nominated accused namely Mujrab son of Rafiullah, who is a real brother of accused/petitioner Ashraf has been admitted to bail by the learned trial Court vide order dated 22-12-2016. The learned counsel for the petitioners submitted with vehemence that law of consistency is fully attracted in the instant case and the petitioners are entitled for the concession of bail. He relied on 2004 PCr.LJ 1246, 2007 YLR 4004, and PLD 2008 Karachi 01 in support of his contention.

5. Conversely the learned counsel for the complainant Mr. Sher Alam contoverted the submission of learned counsel for the petitioners and submitted that the present petitioners are directly charged in the promptly lodged FIR and effective firing is attributed to them. The learned counsel further submitted that 30 Bore Pistols have been recovered from both the petitioners and 10 crime empties have also been recovered from the place of occurrence. The evidences collected during investigation prima facie connect the petitioners with the alleged offence and the offence entails capital punishment, which places an embargo to allow bail to the accused of such offence. The learned Dy. Advocate General adopted the arguments of learned counsel for the complainant. The learned counsel relied on 2005 PCr.LJ 288, 1996 PCr.LJ 745 and 1995 PCr.LJ 640.

6. Heard the arguments of both the parties at length and scanned the whole available record with the valuable assistance of both the learned counsel and also the learned Deputy Advocate General.

7. One accused namely Umer Rehan, who was named in FIR as "Billo", Sddar Khan, his real brother and two other accused namely Ashraf and Mujrab, who are also real brothers were charged for opening effective firing on the deceased. One of the accused Saddar was released under section 169 Cr.P.C. by the local police and his non presence at the place of occurrence is supported from the statement of PW namely Gul Mir son of Samed Mir, who is a Lambardar of the area and he stated in his statement recorded under section 161 Cr.P.C. that on the day of occurrence accused Sadder was at Gilgit. The name of this PW finds mentioned in the calendar of witnesses in the final police report submitted before trial Court under section 173 Cr.P.C. Another accused namely Mujrab son of Rafiullah has been released on bail by the learned trial Court. There is another very important factor in the instant case, PW Muhammad Azam son of Samed Khan who was sitting on motorbike being ridden by the deceased and who was also seriously injured in the incident has not charged any one for the commission of offence nor he has mentioned the presence of other PWs, who claim to be the eye-witnesses of the occurrence.

8. All the above factors, when taken together have put the case in the cradle of further inquiry. The complainant in the criminal cases, when exaggerate and twist the real facts and the Court comes to the conclusion that some innocent persons have been involved with the guilty ones, then the Court may grant bail to even those, who participated in the occurrence and the question of their guilt/innocence is left to be finally determined by the trial Court. I have already held in an earlier judgment that where truth and falsehood are so intermixed and it becomes difficult for the Court to ascertain the real facts, the case becomes as one of the further inquiry.

9. In view of above detail discussion the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs. 1000000/. (Ten lac) with two solvent sureties each in the like amount to the satisfaction of trial Court.

10. The petition is disposed of in the above terms. WA/15/GB Bail granted.