1997 P Cr (PLP)

Yasibuddin, complainant brother of Mir Alam deceased resident of Damote presented a written report to the S.H.O., Police Station Jaglote at 8 p.m. to the effect that on the fateful day, i.e. 23-9-1996 the complainant and his brothers Mir Alain deceased and Wahabuddin went to the village mosque for offering their evening prayer with congregation. After offering the prayer, left the mosque in the direction of their house; That Mushtaq and Sultan Hameed sons of Pir Muhammad of Village Damote all of a sudden emerged from behind a rock, where they taken cover and they started firing at Mir Alain deceased who was going a few paces ahead of the complainant. Accused Sultan Hameed was armed with a klashnikov while his co-accused Mushtaq was carrying a shot gun. Simultaneously both the abovenamed accused started firing at Mir Alam as a result of which he was hit and dropped to the ground; during the course of firing Mahmood Alain son of Maqsood Alain and Imtiaz Ahmad son of Sagheer of Damote were spotted by the complainant duly armed with fire-arms decamping from the spot. Abdul Manaf son of Juma Khan also reached the scene of occurrence and chased the accused party Mahmood Alam etc. but the accused succeeded in fleeing away. It is further mentioned in the report that Musthaq and Sultan Hameed after killing Mir Alain brother of Yasibuddin fled away through a field where maiz crop was standing.

2. Motive for the offence given in the F.I.R. is that a few years prior to the present incident, Mir Alain deceased had murdered Maqsood Alain father of accused Mahmood Alain, who is uncle of Imtiaz and nephew of accused Mushtaq and Sultan Hameed for having illicit relation with his sister.

3. The alleged incident took place on 23-9-1996 after evening prayer at 6-30 p.m. and the matter was reported in the shape of written report by Yasibuddin brother of Mir Alam deceased at 8 p.m. the same night; on the basis of which a case was registered under section 302/34, P.P.C., vide F.I.R. No.28 of 1996. The lodger of the report has charged Musthaq and Sultan Hameed, accused/petitioners Nos. l and 2 for firing the fatal shots at Mir Alam. As per F.I.R. the present incident was witnessed by Yasibuddin, Wahabuddin and Abdul Manaf.

4. Wahabuddin brother of the deceased, whose name figures in the F.I.R. as an eye-witness deposed before the police on 25-9-1996 under section 161, Cr.P.C. that he alongwith his deceased brother had gone to Barmas Mosque for offering their evening prayer and after offering evening prayer, they came out of the mosque, Wahabuddin busied himself talking with somebody for a short while and thereafter, proceeded towards the direction of his house; that Wahabuddin had hardly reached at a drain of water, where all of a sudden firing started and he saw his brother Mir Alain after having been hit with fire shots fell to the ground; that accused Mahmood Alam and Imtiaz Ahmad after firing at the deceased ran away; that the witness in hand due to the sudden incident lost his senses and fell down on the ground when in the meantime Abdul Manaf and Ex -Sub. Mir Subhan also arrived at the scene, Wahabuddin then stood up and saw his brother who was breathing his last. The dead body was placed on a cot and taken to the house.

5. Abdul Manaf P.W. in his statement under section 161, Cr.P.C. stated that on the eventful day, he had gone to Barmas Mosque for offering evening prayer. After offering prayer, people came out of the mosque, while Rtd. Sub. Mir Subhan was busy in offering "Nawafil". Abdul Manaf also offered 4 "Nawafil" in the mosque and thereafter, came out of the mosque and stood outside near the wall of mosque in order to take water, meanwhile from southern side, a volley of shots were fired and two persons were seen by him running towards down side. Abdul Manaf picked up a stone and hurled it in the direction of accused and proceeded ahead, on reaching near a drain, on the other side of which Mir Alain was lying in a wounded condition in-between two big stones. During this period, Mir Subhan also arrived at the scene. It is further deposed by Abdul Manaf that Wahabuddin real brother of the deceased was also present with the casualty; that Mir Alain breathed his last on the spot. Thereafter, other people also arrived at the scene., The dead body was placed on a cot and removed to the house. It is also mentioned in the said statement by Abdul Manaf that due to cluster of trees and darkness, he could not identify the two persons who ran away from the spot.

6. Abdul Manaf P.W. in his statement before the police -has clearly mentioned that he had only seen two persons decamping from the spot, but they could not be identified due to darkness and cluster of trees. Yasibuddin brother of the deceased, maker of the report has stated in his first information report that Abdul Manaf chased the accused party, but Abdul Manaf in his statement before the police, has nowhere mentioned that he had chased the accused. Similarly Wahabuddin, real brother of the deceased in his statement under section 161, Cr.P.C. did not mention the presence of complainant, his brother Yasibuddin with the deceased at the relevant time..

7. Apart from this, Wahabuddin in his statement has charged Mahmood Alam and Imtiaz Ahmad for firing at the deceased and decamping from the spot and is absolutely silent about Mushtaq and Sultan Hameed, on the other hand, Yasibuddin lodger of the F.I.R. has charged Mushtaq and Sultan Hameed for fatal shots at the deceased. Both Wahabuddin and Abdul Manaf P. Ws. in their statements are unanimous regarding the presence of Ex-Sub. Mir Subhan at the time of occurrence. Mir Subhan P.W. in his statement under section 161, Cr.P.C. has not stated that he had seen any accused in the vicinity of the spot and is also silent about the presence of Yasibuddin at the relevant time with the deceased.

8. There are two different versions of the present incident, one is narrated by Yasibuddin in the F.I.R., while Wahabuddin and Abdul Manaf P.Ws. exclude the presence of the maker of the report in their statements before the A police and they have charged Mahmood Alam and Imtiaz Ahmad for having fired shots at the deceased and are absolutely silent about the presence of Yasibuddin, who charged Mushtaq and Sultan Hameed for fatal shots at the deceased.

9. Learned counsel for the accused/petitioners has also attached the certificates issued by the Headmaster in respect of the age of Imtiaz Ahmad and Mahmood Alam, accused/petitioners Nos.3 and

4. According to the certificate, 8 the age of Imtiaz comes to 15 years 4 months and 20 days, while the age of Mahmood Alam is 14 years, 3 months and 8 days.

10. In the light of the aforesaid discussion, the case requires further probe, i, therefore, without touching deep the merits of the case and the fact that accused/petitioners Imtiaz and Mahmood Alam are of tender age, allow bail to all the accused/petitioners, subject to their furnishing bail bonds in the sum of Rs.20,000 with two sureties each, in the like amount to the satisfaction of any Magistrate 1st Class, Gilgit. N.H.Q./27/Gilgit Bail allowed.