2019 PLP 82 (YLRN)

MALIK HAQ NAWAZ, J.

This is a petition for bail on behalf of Sham, Akhtar and Izhar, who are accused under sections 302/34/109, P.P.C. in a case registered vide FIR No.09/2017 at Police Station Pari Bangalah on 22.5.2017.

2. The case of prosecution as disclosed in the FIR is that the petitioners committed murder of deceased Saif-ur-Rehman by opening fire shots on him. The motive of murder was stated to be that the deceased was suspected for having extra marital relations with Mst. Irfana, sister of one of the accused Sham.

3. Post arrest bail was refused to the petitioners by the learned Addl. Sessions Judge Gilgit vide judgment/order dated 17.04.2019.

4. The learned counsel for the petitioners pleaded that the petitioners are innocent and have been falsely implicated in the case. The FIR has been lodged with an inordinate delay of about 05 hours and the delay has not been explained. The statements of eye-witnesses have been recorded on the next day of the occurrence. The recoveries have been foisted on the petitioners and nothing was recovered from them. There is complete contrast in the statements of the eye-witnesses and medical evidence, which has not be considered in favour of the petitioners while refusing bail to the petitioners, by the trial Court. The learned counsel relied on 2012 SCMR 1137, 2007 YLR 2099, 1983 PCr.LJ 447 and 1999 SCMR 1360.

5. On the other hand the learned counsel for the complainant and learned Dy. Advocate General submitted that the petitioners are directly charged in the FIR for committing murder of deceased Saif-ur-Rehman. Motive has also been disclosed in the FIR. Weapons of offence have been recovered from the accused Sham and Akhtar, for which separate FIRs under section 13 (XX) 65 A.O. have been registered. The trial of the case is in progress and the petitioners are not entitled for concession of bail, as the offence carries the punishment of death/ life imprisonment. The learned counsel for complainant and the learned Dy. Advocate General relied on PLD 1994 SC 65, 1997 PCr.LJ 118, 2000 PCr.LJ 145, 1996 SCMR 1023 in support of their contentions.

6. The perusal of record reveals that the petitioners are directly charged in the FIR with a specific motive which prompted them to commit murder of deceased Saif-ur-Rehman. The contention of the learned counsel regarding delay in FIR, non association of independent witnesses in the investigation, contradiction in the occular evidence and medical evidence are the factors, which cannot be thrashed out while dealing with a bail application and that too at the level of Chief Court, to avoid prejudice to either of the parties. As held in number of judgments by this Court, that only a tentative assessment of the material collected during investigation of the case is permissible, while hearing a bail application. The trial of the case is in progress. As evident from the judgment/ order of the learned Addl. Session Judge Gilgit dated 27-04-2019, the petitioner Azhar has been charged under section 109, P.P.C., as he was shown to be present at the place of occurrence. No recovery of weapon of offence has been affected from his possession. His case is one of the further inquiry falling under section 497(2), Cr.P.C. He is admitted to bail subject to his furnishing a bail bond of Rs. 10,00000/- (Ten lac) with two sureties each in the like amount to the satisfaction of learned trial Court. Bail up to the extent of accused/petitioners Sham son of Bakhtawar Shah and Akhtar son of Rehmat Shah is declined.

7. Petition partially allowed. MQ/82/GB Order accordingly.