1. MUZAFFAR ALI, J.---This bail petition was initially entrusted to me to decide in Single Bench, but during course of arguments some intricate questions of law/facts were raised, for which a request was made to the Hon'ble Chief Judge Chief Court to constitute a Division Bench, which was accordingly constituted and the matter is heard today. It would be advantageous to mention here that I.O. of the case and learned D.A. Chilas were also directed to appear before the Court to meet the situation who are accordingly present.
2. ' We do not feel it necessary to re-write the whole story of the occurrence as the same finds mention in the judgment of learned Sessions Judge Diamer dated 25-11-2010, now under challenge before us.
3. ' That learned Counsel for petitioner submitted that F.I.R. lodger is an eye-witness of the occurrence, who has narrated the occurrence in detail, mentioning names of the eye-witnesses as well as the accused with their specific role of opening fire shots on the deceased with their respective fire arms. The statements of the eye-witness mentioned in the F.I.R. are quite in line with the statement of (F.I.R. lodger). The I.O. later on introduced two eye-witnesses namely Amir Khan and Orangzeb on 13-10-2009, who only charged the present petitioner for commission of the offence. This device was intentionally introduced by the I.O. to give benefit to the co-accused Ashar Khan under section 169, Cr.P.C., in fact his role is not distinguishable from the present petitioner.
4. ' The learned counsel for petitioner stated with vehemence that it is a case of two conflicting versions, one given by the eye-witnesses mentioned in the F.I.R. and the other introduced by I.O. through two other eye-witnesses later on. In such a situation it cannot be inferred with judicial certainty as to which version is correct and why? The learned counsel further submitted that when it becomes a mystery as to whose shot hit the deceased, whether of the present petitioner or his co-accused who has been released by the police under section 169, Cr.P.C, the case becomes as one of the further enquiry attracting the provision of section 497(2), Cr.P.C.
5. ' The learned counsel further submitted that the case of the petitioner could have been distinguished only because of recovery of weapon of offence (Kalashinkov) which was recovered from him on 20-10-2009 and F.I.R. No,29 of 2009 was got registered against him in Police Station Tanqir. The learned counsel submitted that the petitioner has been acquitted from the charge under section 13, A.O. by the learned trial Court vide judgment dated 22-3-2011 and the acquittal was ordered after arguments. The learned District Attorney as well the counsel for the complainant raised no objection. In such like situation the incarceration of the petitioner would be against the concept of criminal jurisprudence and law of bail. The learned counsel for petitioner relied on 1980 SCM R 784, 1985 page 2323, PLD 1988 SC (AJK) 148, 2010 GBLR 129 and 2010 GBLR 75.
6. ' The learned Assistant Advocate-General assisted by the counsel for the complainant party, when confronted, tried to answer the proposition put forth by the counsel for the petitioner, but we got no satisfaction. Investigation Officer of the case was also asked to explain about the deficiencies in the investigation but kept mum and was unable to satisfy us on any of the query so raised. Similar was the position of the D.A. by shifting. the burden on the counsel for the complainant party, but when he was asked that why he conceded for acquittal of the petitioner from the charge under sect-ion 13, A.O., which was an integral part of the main case, he kept mum and despite being insistent by the Court he could not justify his conduct.
7. ' After hearing both the parties and scanning the record of the case with the able assistance of the counsel and the learned A.A.-G., we are afaired to observe that right from start of the investigation till acquittal of the petitioner at a mid stage of the trial, under section 13, A.O., the case seems apparently one of the collusion of the accused party with functionaries of the State. Despite very nomination of both the accused in equal manner one of the accused was released under section 169, Cr.P.C. for which evidence was created after many days of the occurrence without any legal or moral justification. The complainant also engaged a private counsel, who also did not file any private complaint under sections 200/204, Cr.P.C. if he was not satisfied about the release of co- accused Ashar till now as a period of over 1 year and 6 months has lapsed, meaning thereby that he was also feeling satisfied and the learned counsel again conceded for acquittal of petitioner from the charge under section 13, A.O. at the very initial stage, for which we can only deprecate such a lethargic attitude but at the same time the learned trial Court should not decide the case under section 13, A.O. in a hasty manner as the same was part of main case, fate of which is yet to be decided. The learned trial Court was expected to exercise judicial restraint instead of passing an order under section 265-K, Cr.P.C. in the 13, A.O. the same was to be disposed of along with the main case.
8. ' The netshell of the above discussion is that the petition is allowed. The petitioner shall be released on bail subject to furnishing of his bail of Rs,10,00,000 (ten hundred thousand) with two sureties of like amount to the satisfaction of trial Court at Diamer.
9. ' A copy of this judgment be sent to the SSP Diamer for taking appropriate disciplinary action against the I.O. of the case and a copy of the judgment be also sent to Secretary Home Gilgit- Baltistan for probing into the conduct of District Attorney Diamer who failed to perform his duties diligently. Short order was announced on 18-4-2011 and these are the reasons for the same.