2021 PLP 121 (YLRN)

ALI BAIG, J.

The petitioner/ accused namely Hajat Ali has filed the instant bail petition under section 497, Cr.P.C. for grant of post arrest bail in case FIR No.07/2018, dated 24-08-2018, registered under section 302/34, P.P.C. and offence under Section 13 A.O. vide FIR No.09/2018, at Police Station Chalt, Tehsil Nagar-II, District Nagar.

2. Succinctly facts of the case as unfolded in the FIR are that the complainant namely Alif Khan son of Khan resident of Chaprote Nagar, reported the matter to the police at Police Station Chalt stating that on 23-08-2018, his deceased brother Bahadur Abbas and one Rehmat Ali were proceeding towards Gilgit. When the deceased and the above named companion namely Rehmat Ali reached at Bulbul Aman Market Gayeba Chaprote, at 11:50 p.m., on 23-8-2018, the petitioner/accused and his co-accused assaulted the deceased and petitioner namely Hajat Ali opened fire shots with 30 bore pistol which hit the deceased and he fell down on the ground. The deceased Bahadur Abbas was taking to Gilgit by one Ali Raza and other relatives of the deceased. On the way near Jutal, the deceased succumbed to his injuries. Motive behind the occurrence is stated to be that one year prior to the occurrence, the deceased had contacted marriage/ nikah with one Shehnaz, real sister of the petitioner/accused, without consent or prior permission from the petitioner/ accused and his parents.

3. It is pertinent to mention here that the petitioner and his co-accused namely Niyat Ali, Khadim Hussain and Akram Hussain had filed bail petition in the Court of learned Sessions Judge Hunza/Nagar which was dismissed by the learned trial court to the extent of present petitioner / accused, whereas, the learned trial court has granted bail to the extent of above named co-accused of the petitioner, hence this bail petition.

4. The learned counsel for the petitioner has contended that there are contradictions in the statements of PW Ali Raza, PW Mohammad Amir and PW Zulfiqar recorded under section 161, Cr.P.C. by the police. The learned counsel for the petitioner has further contended that there is 2-1/2 hours delay in lodging of FIR. The learned counsel for the petitioner has further argued that nominated co-accused of the petitioner namely Niyat Ali, Khadim Hussain and Akram Hussain have been granted post arrest bail by the learned Sessions Judge Hunza/Nagar vide bail order dated 17.11.2018, hence rule of consistency applies to the case of present petitioner. The learned counsel for the petitioner has further contended that charge against the petitioner/accused was framed on 03-05-2019 by the learned trial court and the prosecution has failed to produce and examine even a single prosecution witness before the learned trial court. Concluding his arguments, the learned counsel for the petitioner/accused has argued that statement of eye-witness namely Rehmat Ali under section 161 has been recorded after 3 days of the occurrence which requires further inquiry and petitioner is entitled for concession of bail.

5. Conversely, the learned Deputy Advocate General and the learned counsel for the complainant have vehemently opposed this bail petition by contending that the petitioner is directly charged in the FIR with specific role of opening fire shots on the deceased. The learned Deputy Advocate General and the learned counsel for the complainant have further argued that offence under section 302, P.P.C. falls within the ambit of prohibitory clause of section 497, Cr.P.C. The learned Deputy Advocate General and the learned counsel for the complainant have further contended that eye-witness namely Rehmat Ali, who is natural witness, has witnessed the occurrence as he was present with the deceased at the time of occurrence; thus, the petitioner/ accused is prima facie connected with the murder of deceased Bahadur Abbas as such the petitioner/accused is not entitled for concession of post arrest bail.

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

7. From perusal of record, it transpires that petitioner/accused is directly nominated in the FIR with specific role of opening fire shots on the deceased with 30 bore pistol. The eye-witness, who was admittedly accompanied with the deceased at the time of occurrence, has witnessed the occurrence. Motive behind the occurrence has been disclosed in the FIR. Weapon of offence, i.e., 30 bore pistol has been recovered from the possession of petitioner/ accused in presence of marginal witnesses. Medico Legal Report/Autopsy Report and Report of Fire Arms Expert are also positive and support prosecution version. Moreover, case of the co-accused of the present petitioner/accused, who have been admitted to post arrest bail by the learned trial court, is distinguishable from the case of petitioner, hence rule of consistency does not apply to the case of the present petitioner.

8. Main thrust of the arguments of the learned counsel for the petitioner/ accused is that there are contradictions in the statements of prosecution witnesses recorded under section 161, Cr.P.C. In this connection, it is observed that at the stage of bail, deep scrutiny of evidence is not permissible nor the requirement of law, but at the same time, the court of law is not precluded from the tentative perusing of evidence of eye-witnesses, Medico Legal Report, Report of Fire Arms Expert and other evidence.

9. From tentative assessment of incriminating material/ evidence collected by prosecution against the petitioner during investigation, it shows that petitioner is prima facie connected with the commission of murder of not only the deceased Bahadur Abbas but also murder of his own sister namely Mst. Shehnaz.

10. The upshot of the above discussion leads me to the conclusion that there are no reasonable grounds to believe that the petitioner/accused has been falsely implicated in this case. Consequently, this bail petition is dismissed.

11. Before parting with this order, it is observed that the observations made herein above are tentative in nature and would not affect the case of either party during trial. File. SA/31/GB Bail declined.