2010 PLP 263 (GBLR)

MUHAMMAD YAQOOB KHAN, J.

This present petition for grant of leave has been directed by the petitioner namely Khalid Ali son of Muhammad Riaz resident of village Sakwar Tehsil and District Gilgit against the Order dated 5-3-2010 passed by Single Bench of Chief Court Gilgit-Baltistan in Criminal Miscellaneous No.3 of 2010, whereby the concession of bail has been declined to the petitioner in a case registered under section 324/34 read with section 13 A.O. Precisely the facts narrated in the F.I.R. lodged by one Ehsan Ali son of Akbar resident of Sakwar are, that on the day of occurrence dated 13/14 September, 2009. The villagers of village Sakwar were gathered in the mosque of Sakwar. Tehsil Gilgit in connection to the Shab-e-Qadar, the present petitioner and two others assaulted upon Toufail and Khadim. During the quarrel accused Khalid Ali and Zamir opened fire shot with their pistol, resultantly bullets hit on leg and thigh of Tufail and Khadim. F.I.R. No.162 of 2009 was registered against the accused in police station Cantt, Gilgit under section 324/34 P.P.C. That the police arrested Munir Abid, Bilal Hassan, Rashid Hussain, Zamir Abbas and present petitioner. During the investigation police have released co-accused Munir and Abid under section 169 Cr.P.C. while the remaining accused except the present petitioner have been granted bail by the learned Sessions Judge Gilgit vide order dated 21-10-2009. That the present petitioner moved bail application before the Hon'ble Chief Court Gilgit-Baltistan, the same was turned down vide order dated 5-3-2010. We have heard the learned counsel for the parties at length. The learned counsel for the petitioner contended that six accused have been charged in the F.I.R. out of them two accused attributed the role of firing. That two accused have been released by the police under section 169, Cr.P.C. while three co-accused have been granted bail by the Sessions Judge applying the rule of consistency. The present accused/ petitioner is also entitled for the concession of bail, he further submits that the case made against the present petitioners requires further inquiry. He also added that the recovery of pistol from the petitioner has allegedly been made out but the same recovery is immaterial as the weapon of offence alongwith empty shells have not been sent so far by the I.O. for expert report. It is further addendumed that the I.O. has recorded more then one statement of P.W. Muzmil Abbas and Shakoor under section 161, Cr.P.C. and the same contradicts each other, hence not be relied upon. Lastly, it is submitted on behalf of petitioner's counsel that although Toufail and Khadim were injured on the spot but they were in a position to record their statements, unfortunately the same has not been recorded by the I.O. and submitted challan in the Trial Court against the accused. On the other hand the learned Advocate-General has strongly opposed the application, with the connection, that the petitioner is directly charged in the F.I.R. The offence with which the petitioner is charged is not bailable and falls within prohibitory clause of section 497 Cr.P.C. He further contended, that the eye-witnesses have fully charged the petitioner in their statements recorded by the investigating agency. Police have recovered weapon of offence from the petitioner, there is ample evidence on record against the petitioner to link him with the alleged offence and, therefore, he is not entitled for concession of bail. We have carefully attended to the arguments of learned counsel for both sides at length and have perused available material with due care and caution. From perusal of record as well as impugned order it transpires that no doubt the offence has been committed in the vicinity of village Sakwar Mosque. Name of the present petitioner is also mentioned in the F.I.R. lodged by Ehsan Ali recovery of weapon of offence has also allegedly been made on the pointation of petitioner, but from tentative assessment of the material available on record there is no direct evidence to connect the petitioner with the present crime, moreover, it is yet to be ascertained that whose fatal shot hit to the injured persons very importantly there is no firearms expert report with the prosecution to ascertain "whether the fire has been made by the pistol recovered from the petitioner or not" the above stated factors brings the case of petitioner within the domain of further inquiry with the meaning of section 497 subsection (2) of Cr.P.C. Both the investigation officers namely Ibrahim I.P. and Aman Ali Shah IP have failed to conduct a fair and transparent investigation. Resultantly the Inspector-General of Police, Gilgit-Baltistan is directed to take appropriate action against the Investigation Officers as per police Rules. Whatsoever has been discussed above, the case against the petitioner called for further inquiry into his guilt. This petition is therefore, converted into appeal and allowed. However, our above observations are purely tentative in nature and the trial Court shall proceed with the case un-influenced by this order. Our short order by virtue of which the petitioner was allowed bail, reproduced herein below, is treated as part of this order:

"For the reasons to be recorded later on this petition is converted into an appeal and bail is allowed to the appellant subject to his furnishing bail bonds in the sum of Rs.2 Lac (200,000/-) with two local sureties each in the like amount to the satisfaction of trial Court". Petition converted into appeal and allowed. M.H./76/Glt. Bail granted.