2017 PLP 167 (YLRN)

MALIK HAQ NAWAZ, J.

The petitioner Rehmat Ullah along with 04 other co-accused was booked for the offences under section 302/34, P.P.C. through FIR No.46/2013 dated 16-11-2013 registered at Police Station Darel District Diamer.

2. The complainant charged the petitioner and his co-accused for opening fire-shots on the person of his deceased father Arsh Khan in the night of occurrence at about 22:00 hours on 15-11-2013.

3. The petitioner applied for bail in the Court of learned Additional Sessions Judge, which did not find favour with the trial Court and was declined vide judgment/order dated 15-10-2016 and being aggrieved from the said order the petitioner has come to this Court for concession of bail.

4. The learned counsel for the petitioner submitted that the petitioner has been involved in the above offence due to old enmity and pervious ill-will existing between two rival groups. The learned counsel further submitted that it was a night occurrence and it was not possible for the complainant to identify the assailant in such a short span of time. The learned counsel further added that challan of the case was put in the trial Court on 22-05-2015 but after lapse of over 1-1/2 years no substantial progress has been made in the trial Court. The case of the petitioner has become one of the further inquiry falling under section 497(2), Cr.P.C. and he deserves the concession of bail.

5. The learned Additional Advocate General vehemently controverted the petition and submitted at bar that the accused/petitioner is directly charged in the FIR and he went underground after commission of offence and was arrested after hectic efforts by the local Police. His co-accused are still at large and if the bail facility is extended to the petitioner he will jump bail and the trial of the case will be hampered.

6. I have heard both the learned counsel for the parties and gone through pro and contra contentions raised at bar. No doubt that the petitioner is directly charged in the FIR along with 04 other co-accused. There are two crucial questions which tilted my mind in favour of bail, firstly that it was night occurrence which took place on 15-11-2013 at 22:00 hours and it is question of fact, that in mountainous area where visibility is always poor after sun set, whether it was possible for the complainant to identify all the assailants or it was just a guess work on the part of complainant, because in dark hours of night if the parties are known to each other, their identification even at night time could have been possible if there had been some altercation between the parties or the occurrence lasted for quite some, which is not the case of complainant. The complainant has to establish through evidence at trial regarding the manner of identification and till that time it is a case of further inquiry. Secondly the petitioner/accused was produced before the trial Court on 25-05-2015 and his charge was framed on 02-06-2015. A perusal of order sheets dated 23-06-2015, 12-08-2015, 25-08-2015, 17-09-2015, 12-10-2015, 20-1-2015, 11-11-2015, 02-12-2015, 22-02-2016, 16-03-2016, 07-04-2016, 19-04-2016, 17-05-2016, 06-06-2016, 25-06-2016, 18-08-2016, 30-08-2016, 20-09-2016, 10,10,2016, 22-10-2016, 08-11-2016, 22-11-2016, 01-12-2016 and 15-12-2016 shows that on almost all the above dates of hearing PWs remained absent despite coercive measures adopted by the trial Court which goes against the conduct of prosecution/complainant and it seems that the complainant party by non-producing PWs maliciously intends to prolong the period of detention of accused, which is against the spirit of law.

7. Speedy trial is an inherent right of an accused and he cannot be denied this valuable right on wishes or whims of his opposite party. A party in criminal proceeding cannot be given and edge over the other and both are to be treated alike as the Courts are to dispense justice, without having any soft corner for any party locked in criminal litigation. The complainant/prosecutor cannot be allowed to select time of their own choice to produce PWs in the trial Court.

8. In view of above discussion the petition is allowed bail subject to his furnishing of bail bonds in the sum of Rs. 100000/- (Ten lac) with two sureties in the like amount each to the satisfaction of trial Court or any Judicial Magistrate at Chilas if the trial Judge is not available during winter vacations. The petition is disposed off in the above terms. WA/3/GB Bail granted.