2022 PLP 1501 (YLR)

ALI BAIG, C.J.

This petition under section 497(5), Cr.P.C. has been moved by the complainant namely Bakhmal Shahzad son of Uzair Khan for cancellation of bail order dated 26-06-2021 passed by the learned Sessions Judge Diamer in favour of the present respondents/ accused namely Nazeer Ahmed, Muhammad Ajeeb Sons of Roop Khan and Ghulam Qadir son of Syed Nabi who are involved in a criminal case FIR No. 15/2020 registered under sections 302,109/34, P.P.C. at Police Station Dudushal District Diamer.

2. The case of the prosecution as it unfolded in the FIR according to the petitioner/complainant is that on fateful day i.e. on 08-011-2020 he and his brothers namely Shahzaman and Sher Alam were sitting on the road in front of their house situated at Danyal Dudushal. At about 11:30am the present respondent namely Nazeer Ahmed son of Roop Khan and his co-accused namely Zia and Adil Khan came there armed with fire arms. On reaching there the above named accused started indiscriminate fires on the deceased Shahzaman which hit the deceased and has expired on the spot. Accused decamped from the placed of occurrence. The occurrence was witnessed by Sher Alam and Mst. Najima besides the complainant. Motive behind the occurrence was stated to be that the deceased had illicit relations with one Mst. Gulnar. It is further alleged in the FIR that the occurrence was taken place at the behest / abetment of co-accused Muhammad Ajeeb Khan, Ghulam Qadir and Luqman Hakeem.

3. The learned counsel appearing on behalf of the petitioner/ complainant contented that the accused/ respondents were directly charged in the promptly lodged FIR with specific role of effective firing on the deceased. The learned counsel for the petitioner/ complainant further argued that eye-witnesses have witnessed the occurrence and motive behind the occurrence has been disclosed in the FIR. The learned counsel for the petitioner/ complainant further argued that offence under section 302, P.P.C. falls within the ambit of prohibitory clause of section 497(1), Cr.P.C. and the respondent No.1 Nazeer Ahmed had absconded after the occurrence and he was recently arrested by the police. Concluding his arguments the learned counsel for the complainant maintained that the role of discharged accused namely Adil Khan was distinguishable from the role of present respondent No.2 as no recovery was effected from the discharged accused above named.

4. On the other hand the learned counsel for the accused/respondents opposed this petition filed under section 497(5), Cr.P.C. by contending that challan against the respondents has yet not been submitted in the Court despite lapse of more than one year of the occurrence hence the learned trial Court has rightly granted bail in favour of the respondents / accused. The learned counsel for the respondents further argued that similar role was attributed to the co-accused of the present respondent No.1 namely Adil Khan who has been discharged by the police under section 169, Cr.P.C. hence, rule of consistency applies to the case of the present respondent No.1.

5. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and with their able assistance perused the record.

6. Admittedly, the respondent No.1 is directly charged in the promptly lodged FIR with specific role of effective firing. Eye-witnesses who are natural witnesses have witnessed the occurrence. Motive behind the occurrence has been disclosed in the FIR. Perusal of impugned bail order passed by learned trail Court it appears that the learned trial Court has granted bail by holding that the accused namely Zia, Adil Khan and present respondent No.1 Nazeer Ahmed were equally charged by the complaint for opening fires at the deceased, however, I.O. surprisingly has discharge accused Adil Khan from the case.

7. Bare reading of above observations of the learned trial Court it reveals that the learned trial Court has granted bail to the accused respondent Nazeer Ahmed on the sole ground of rule of consistency. No any incriminating article/ weapon of offence has been recovered from the discharged accused namely Adil Khan, whereas weapon of offence has been recovered from present respondent No.1 namely Nazeer Ahmed thus his case is therefore, distinguishable from that of his co-accused Adil Khan who has been discharged under section 169, Cr.P.C. by the police.

8. Moreover, from tentative assessment of material available on the record it is crystal clear that the respondent No.1 Nazeer Ahmed is prima-faice connected with the alleged offence falling within the ambit of prohibitory clause of section 497, Cr.P.C. and he was not entitled for concession of bail. The learned Sessions Judge Diamer while allowing post arrest bail in favor of the respondent Nazeer Ahmed has completely lost sight of established principles for grant of such bail and guidelines laid down/held by superior Courts from time to time.

9. The upshot of the above discussion is that this petition is allowed to the extent of respondent/ accused Nazeer Ahmed and the bail order dated 26-06-2021 passed by learned Sessions Judge Diamer to the extent of respondent Nazeer Ahmed is hereby re-called. As far as respondents/co-accused namely Gulam Qadir and Muhammad Ajeeb Khan are concerned who were charged under section 109, P.P.C. there is no any cogent evidence on record to connect them with the commission of alleged offence at this stage therefore, bail cancellation petition to the extent of accused/ respondents namely Ghulam Qadir and Muhammad Ajeeb Khan is dismissed.

10. This bail petition is disposed of in the above terms. File. JK/4/GB Petition allowed.