1. ' WAZIR SHAKEEL AHMED, J.---This petition is for grant of bail in the case F.I.R. No, 29/2012 vide sections 302/34, P.P.C. Of the Police Station, Danyore Gilgit.
2. ' Brief facts gathered from the record of the case may be summarized as one Nisar Hussain of Danyore Gilgit filed a written report to the S.H.O. Thana Danyore on 3-6-2012, stating that while he was engaged in 13 Rajab activities at about 8-30 his son Zahid Hussain left their house and on his not, returning home for a longer time he contacted his elder son Asif on telephone and asked him to find whereabout of said Zahid Hussain. At about 11-30 the said Asif reported that his brother Zahid Hussain has been murdered by someone through firing with lethal weapon and his body is lying in the backside of the FWO Engineering Camp Danyor, he further says that they have no enmity with anybody and unknown person/ persons/accused have murdered his son by firing gunshots by calling him there through cheating.
3. ' Police during the investigation proceedings arrested a number of persons and afterward retained three person including Syed Asif Hussain principal accused, one Ilyas Hussain and the petitioner being suspects of the alleged murder and after necessary investigation the above, three person were to face the charge of murder of Zahid Hussain deceased vide challan No,15/2012 dated 28-6- 2012. The accused Ilyas Hussain has been enlarged on bail while the present petitioner has filed the instant petition after getting rejected the two previous bail petitions by the lower Courts.
4. ' According to the story of challan the above three friends during investigation disclosed that about two days before the occurrence they were having gossips,in the course of which accused Syed Asif Hussain showed a mobile number to the other two accused asking them to verify the number of deceased Zahid Hussain through their cell phones. The two accused checked their cell phones whereupon the same number of the deceased was found saved in the cell phone of accused Ilyas in the name of Zahid Shaeka where upon Syed Asif Hussain said that this boy teases girls so he must be executed, in the meantime the petitioner has reportedly said that he was also in love with Ishrat Fatima and the (deceased) Zahid Hussain has snatched her from him (petitioner) and has got roped her in love affair. All the accused allegedly planned to kill deceased Zahid Hussain on 3 Shaban at the time of illumination.
5. ' The challan further goes on narrating that on the momentous day on call of Syed Asif Hussain the petitioner went to the road where accused Syed Asif Hussain demanded a blank SIM which was provided by the petitioner and the two accused got Rs, 30 balance inserted in the above SIM through accused Ilyas and after proceeding on the scene of occurrence the deceased was called by Asif accused through SMS on the name of Ishrat Fatima and after calling him on the scene of occurrence. Accused Syed Asif Hussain started conversations with him and in the course of which fired on the deceased consecutively and after committing the offence they fled towards Chasma Chowk, on the way the accused Syed Asif Hussain spoiled the blank SIM.
6. ' The contents of the challan further goes on as during the investigations on 12-6-2012 a .30 bore pistol was also recovered from accused Syed Asif Hussain which was unlicensed and a case under 13 A.O. Has also got registered against him. The scene of occurrence was also identified from accused Syed Asif Hussain and present petitioner more ever during investigations accused Ilyas was also found in the conspiracy of the offence and to this extent section 109 OPP has also be inserted in challan etc. I have heard the learned counsel of the petitioner and the learned A.A.-G. At length and also perused the record of the case wherein there is no overt act being attributed to the petitioner, nor has any recovery been effected by the him the petitioners has been involved in the case in hand in connection with a story of providing of a blank SIM to the principle accused which was allegedly used for calling deceased Zahid Hussain on behalf of Mst. Isharat Fatima. This story seems self destructive as according to the statement of Mst. Ishrat Fatima She and deceased were on contact through exchange of SMS on the particular day just before some time, back of the time of occurrence, then how come, the deceased Zahid Hussain on a SMS on behalf of said Ishrat Fatima from an unknown number rushed to the scene of occurrence furthermore, the record i,e, challan is altogether silent about the numbers of cell phones of deceased Zahid which was alleged to be recovered from his dead body and that of numbers of Ishrat Fatima, Ilyas and the petitioner and of course of the cell number of accused.
7. ' There is request for details of record of some number to be obtained from relevant Agency by the I.O. To S.P Gilgit and request to this effect is also found in the record of the case by SP Gilgit to the relevant agency, but there is no iota of evidence in the case file except some loose hand written papers. Before parting with this order an objection raised by the learned D.A.G. Needs to be addressed whereby the learned A.A.G. Opposes this petition on a proposition of law cited in 1995 PCr.LJ Page 1494 wherein it is found that when the case is fixed for trial and the same is commenced then bail should not be granted.
8. I am afraid that this legai proposition could not be applied Ipso dixso IB in each and every case. It is also a well settled proposition of law that when the two essential conditions contained in section 497(2), Cr.P.C. i,e, (i) That there are no reasonable grounds for believing that the accused had committed a non bail able offence. (ii) That there are sufficient grounds for further inquiry into his guilt, are satisfied the accused become entitled to bail as right and in cases when the above said two condition are fulfilled the further detention of the accused has been deprecated by the superior Courts.
9. ' On the basis of what has been discussed above I am inclined to accept the petition and order to release the petitioner on bail if he is not arrested in any other case subject to furnishing his bail bonds to a sum of Rs,200,000 with two local sureties each in the like amount to the satisfaction of vacation Judicial Magistrate Gilgit.