2019 PLP 413 (YLR)

ALI BAIG, J.

Petitioner namely Sher Khan son of Kashmir through the instant bail petition seeks post arrest bail in case FIR No.08/2018 dated 23.5.2018 registered under sections 324,302,337-F/ 34, P.P.C. and 109/34, P.P.C. at Police Station Jal Thak Tehsil Chilas at instance of one Hidaytullah the complainant.

2. Shortly prosecution story as narrated in the FIR by the above named complainant is that on 23-5-2018 at about 1730 hours the complainant and one Abdul Basit son of Nika were returning back towards Chilas from Malkush Niat, when they reached near Middle School Jal they meet with Ibrahim. They were talking with each other, in the meantime Haq Nawaz son of Mubarak Shah and Atta-Ur-Rehman son of Mujwar arrived there on motor bike. On seeing them the accused namely Mukeem son of Ali Akber,Muhammad Ghazi son of Sher, Hussain son of Raba Khan, Qadus son of Walayat Noor and Hidayatullah son of Muqeem opened indiscriminate firing with Kalshnikovs upon Haq Nawaz and Atta-Ur-Rehman. Resultantly Haq Nawaz expired on the spot and Atta-Ur-Rehman sustained injuries. Motive behind the occurrence is stated to be old enmity between the parties.

3. The learned counsel for the petitioner contended that the present petitioner is not directly charged in the FIR and even the petitioner/accused was not present at the place of occurrence at the time of occurrence. The learned counsel for the petitioner further argued that the petitioner has been involved in this case with the plea that he had abetted the above named nominated accused but neither direct nor circumstantial evidence is available on the record against the present petitioner/accused. The learned counsel for the petitioner/accused further argued that the petitioner is 78 years old and is also ill, therefore, the petitioner is entitled for concession of bail.

4. On the other hand the learned Dy. Advocate General controverted the arguments advanced by the learned counsel for the petitioner/accused and contends that the although the petitioner is not directly charged in the promptly lodged FIR but during investigation the Investigating Officer has implicated the petitioner for an offence of abetment . The learned Dy. Advocate General further argued that the challan against the petitioner and his co-accused has been submitted in the trial court and trial of accused is in progress, therefore, the petitioner is not entitled for concession of bail.

5. I have heard the arguments of the learned counsel for the petitioner/accused as well as the learned Dy. Advocate General and have gone through the available record of the case.

6. Perusal of contents of the FIR reveals that the petitioner/accused is neither directly charged in the FIR nor the petitioner was present at the place of occurrence at the time of occurrence. The learned Dy. Advocate General stated during his arguments that evidence against the present petitioner /accused has been collected during the investigation by the I.O. and the learned Dy. Advocate General when confronted failed to produce any direct and circumstantial evidence collected by the I.O. during the investigation. To sustain the charge of abetment of an offence it is necessary that there must be some evidence of overt action or a common design to commit a particular offence, which is lacking in this case. Moreover, the petitioner/accused is in his advance age and he is 78 years old as per CNIC his date of birth is 1940. Hence the petitioner/accused has made out a case for grant of bail at this stage.

7. For what has been discussed above, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 500,000/- with two sureties each in the like amount to satisfaction of the learned trial court.

8. These are detailed reasons for my short order of even date which is reproduced herein below:-- "For the detailed reasons to be recorded later on, this bail petition is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.500,000/- (five lacs) with two sureties each in the like amount to the satisfaction of trial court". Certified true copy of this order be sent to the learned trial Court/Addl. Sessions Judge Diamer. File. MQ/187/GB Bail granted.