2019 PLP 102 (YLRN)

MALIK HAQ NAWAZ, J.

The petitioner has been booked in the offences under section 302/34/109, P.P.C. vide FIR No.140/2018, registered at Police Station City Gilgit.

2. The petitioner's post arrest bail was refused by the Addl. Sessions Judge vide judgment/order dated 02.4.2019 and he filed the instant petition before this Court for the same concession.

3. The gist of accusation contained in the FIR, have been mentioned in para-2 of the impugned judgment, which are reproduced as under:- "Brief facts of the case as narrated in FIR by complainant are that he and his deceased brother namely Muhammad Nabi were present in their house on 23-11-2018. His deceased brother Muhammad Nabi received a call from one Muhammad Alam in his phone and after few moments Muhammad Alam and Muhammad Ayoub came to their house and took deceased Muhammad Nabi along with them. After sometime he heard some fire shots. He went towards the place where firing was made. When he reached there he saw that one Syed Mir and other persons were carrying the dead body of his brother Muhammad Nabi. On written application of complainant FIR No. 140/2018 has been registered against accused Muhammad Alam son of Shah Mirza and Muhammad Ayoub son of Abdul Ghaffar in Police Station City Gilgit under section 302/34, P.P.C."

4. The learned counsel for the petitioner submitted that the petitioner is not nominated in the FIR nor any recovery has been effected from his possession. The bare and un-substantiated allegations have been levelled against the petitioner that the murder has been committed on his instigation. The provisions of section 109, P.P.C. are not attracted in the instant case and the learned trial Court has refused the bail merely on some mis-conceptions and without any legal justifications. The learned counsel relied on 2004 YLR 2843, 2013 YLR 990, 2005 YLR 1388 and PLD 1983 FSC 165.

5. The learned Dy. Advocate General submitted that the petitioner is fully involved in the abetment of the offence as he murdered his own daughter also at Chilas and separate FIR has been registered against him for the said murder. The section 109, P.P.C. is fully attracted and the petitioner is not entitled for concession of bail.

6. The petitioner is not named in the FIR. Two accused namely Muhammad Alam and Muhammad Ayoub are charged in the FIR for commission of murder of deceased Muhammad Nabi. The petitioner was involved in the offence during investigation of the case and the statement of one Muhammad Riaz which was allegedly recorded on the following day of the occurrence. The case of an accused charged under section 109, P.P.C. is always considered at a lower pedestal as compared to the case of the principal accused. The culpability of the petitioner/ accused in commission of offence will be determined at the time of trial after recording of some evidence. The case of the petitioner is one of the further inquiry and he is admitted to bail subject to his furnishing bail bonds of Rs. 10,00000/- (Ten lac) with two sureties each in the like amount to the satisfaction of trial Court. SA/47/GB Bail granted.