2018 PLP 208 (YLRN)

MALIK HAQ NAWAZ, J.

The instant bail application bearing No. Cr. Misc. 80/2017, has been filed by the petitioners and after remaining unsuccessful to obtain bail from the learned Additional Sessions Judge Diamer. The petitioners were booked for the offences under sections 302/34/109, P.P.C. vide FIR No. 27/2016 dated 13-08-2016 registered at Police Station Darel on the written application of Sohan Khan son of Sagir Jan resident of Dodishal District Diamer.

2. The precise allegation as reflected in the FIR are that on the day of occurrence at about 10.00 a.m., when real brother of complainant namely Malook son of Sagir Jan his son namely Muhammad Ayaz and one of his cousin namely Mushtaque son of Jan Khan, when reached at the place of occurrence were fired upon by one Malook son of Nakil, Yaqeen Khan son of Sakil Khan, Sayed Alam son of Bijil Khan, Rehmullah son of Bahadur Khan who were already sitting in ambush. The complainant stated that as a result of above firing by the accused, Malook Jan lost his life. The occurrence was witnessed by Muhammad Ayaz and Mushtaq son of Jan Khan. The offence was committed on the instigation of Alam son of Nakil, Seritham son of Bijil and Sher Syed son of Rauaf.

3. The local police carried out the investigation of the instant case and found one of accused namely Syed Alam son of Bijil, Yaqeen Khan son of Sakil Khan innocent and they were released under section 169, Cr.P.C., one of the accused namely Seritham who was allegedly charged for abetment of the offence under section 109, P.P.C. was also released under section 169, Cr.P.C.

4. The petitioners applied for post arrest bail in the Court of learned Additional Sessions Judge Diamer, which was refused vide order/judgment dated 09-05-2017.

5. Being dissatisfied from the order/judgment of learned trial Court petitioners have come to this Court for concession of bail.

6. The learned counsel for the petitioners submitted that there is no substantive evidence available with the prosecution against the petitioners. The learned counsel further contended that whole story of the occurrence is concocted and a tailored story has been put forth by the complainant to involve as many persons of rival group as he could. The learned counsel further contended that one Adam Khan who was charged under section 109, P.P.C. for abetment of the offence but during investigation local police recovered a five shot rifle from him on his pointation and registered a separate FIR No. 09/2017 against him, which itself is sufficient to discard the whole story of prosecution. Police also released one Seritham under section 169, Cr.P.C. and petitioner No.1 Ahmed Shah is a minor as his date of birth as recorded in the school leaving certificate is 15-05-2001. His case falls under section 497(1) Cr.P.C. and his name is also not reflected in FIR and he is entitled for the concession of bail. The learned counsel relied on 2010 GBLR-129 and Cr. Misc. No. 40/ 2014 in support of his arguments.

7. On the other hand the learned Dy. Advocate General, opposed the petition on the ground that the petitioners are directly charged in the FIR and it was a day light occurrence. He further contended that the weapons of offence have been recovered from the accused Malook and Adam Khan, and there exist a strong prima facie case against the petitioners/accused.

8. I have heard both the parties at a considerable length and found that the FIR lodger is not an eye-witness of the occurrence and it is not mentioned in the FIR that from whom the complainant derived the information of occurrence. The complainant submitted a written application for registration of FIR and it is very clearly mentioned in the FIR that the firing was opened by accused Malook, Yaqeen Khan, Syed Alam and Rahimullah and one mufflered person. Whereas one Alam (Adam) son of Nakil, Seritham and Sher Syed were charged under section 109 P.P.C. for abetment. It is astonishing to note that Police got recovered a fire shot rifle from Adam Khan son of Nakil on 14- 03-2017 and registered a separate FIR No. 09/2017 against him. Whereas per contents of FIR he was charged for abetment under section 109, P.P.C., which shows that the complainant has thrown a wide net and involved maximum persons of his rival group.

9. The case of the petitioners/ accused has become as one of the further inquiry, therefore, they are admitted to bail subject to furnishing of bail bonds in the sum of Rs. 1000000/-(ten lac) with two sureties each in the like amount to the satisfaction of trial Court.

10. The petition bearing Cr. Misc. No. 80/2017 is hereby disposed of in the above terms. HBT/203/GB Bail granted.