' MALIK HAQ NAWAZ, J.---The petitioners namely Atta-urRahman and Raji Rehmat seek post arrest bail in FIR No,77/15 dated 09.11.2015, registered under sections 324/353/186/224/34 read with sections 6/7 ATA-1997, at Police Station City Chilas, District Diamer.
2. The petitioners/accused after their committal to judicial lockup applied for post arrest bail before the trial Court, but failed to get verdict of the Court in their favour which was announced on 27.02.2016, hence this petition before this Court.
3. The gist of the accusation as contained in FIR is that on 09.11.2015 a spy information was received by the local police City Station Chilas that one "most wanted" absconder namely Shafiq-urRahman alias Mandela son of Faqir Muhammad, resident of Thak was present in the vicinity "Rooney" along with his real brother Atta-urRehman and one Raji Rehmat (both petitioners/accused). Accordingly, a Police party was constituted and the help of paramilitary forces and Army was also sought. The area was cordoned, and in the meantime a motorcycle emerged from Batogah side and the three accused nominated in the FIR were spotted there. On seeing the law enforcing agencies and police the petitioners/accused Atta-ur-Rahman and Raji Rehmat opened firing on the law enforcing agencies and because of the firing opened by the petitioner/accused Atta-ur-Rahman, one Jawan of Pak Army namely Naik Amir Ahmed received a bullet injury on his leg. Absconding accused Shafiq-ur-Rahman also opened fire on the police party and his bullet crossed the uniform of one constable Bashir. The present petitioners/accused were arrested at the spot after a lot of resistance, while their co-accused Shafiq-ur-Rahman managed escape. The accused were arrested at the spot and after necessary investigation, were sent to judicial lock up for trial.
4. The post arrest bail application filed before the learned trial Court was declined vide order 27.2.2016. The petitioners/accused not contended with the order of the learned trial Court, approached this Court for concession of bail.
5. The learned counsel for the petitioners/accused submitted that the case is false and the petitioners/accused have been falsely implicated and reasons for false implication are that the real brother of petitioner/accused No, 1 is a most wanted criminal and head money has been announced by the Government of Gilgit-Baltistan. The petitioners have been made a scapegoat.
He further argued that recoveries are fake and planted as these have been effected after many days of their arrest.
6. On the other hand the learned Dy.A.G. Stated at bar that the petitioners/accused are directly charged in the FIR and they actively participated in the occurrence. The motor cycle used in commission of offence has been recovered on the pointation of the accused and weapons of offence have also been recovered from the petitioners/accused and separate cases under section 13 A.O. Have been registered against both the petitioners/accused. He prayed that the bail application be dismissed in the larger interest of justice.
7. We heard both the parties at length, perused the record and minutely examined the contentions raised at bar by, the learned counsel.
8. It is not denied that the petitioners/accused are directly charged in the FIR and they were arrested red-handed after chase and encounter with the police and law enforcing agencies. One Army Jawan was injured because of the firing opened by the petitioner No,
1. The weapons of offence have also been recovered from the petitioners and a motorbike which was used in commission of offence by the petitioners/ accused was also taken into possession.
9. We discussed the case of petitioner No, 2 on the ground that, whether his case is distinguishable from petitioner No, 1, as no firing was attributed to him in the FIR, but after long deliberation, we unanimously decided not to extend the concession of bail to him, as he apparently was a privy to the offence and was sharing common intention with two of his co-accused and for application of Section 34, P.P.C., it is not necessary that there must have an overt act on the part of an accused. If an accused seems to have been present at the place of occurrence, he could be burdened with the liability of common intention, which can be gathered from the surrounding and peculiar circumstances of a particular case.
10. We find that there exists a prima facie case against the petitioners/accused and concession of bail cannot be extended to the petitioners/accused. The petition in hand being meritless is hereby dismissed. File.