MALIK HAQ NAWAZ, J.---The respondent was booked for the above charges vide FIR No, 17/2015 dated 10.05.2015 registered booked at Police Station Baseen.
2. The brief facts of the case are that one Iqbal son of Abdul Hakeem lodged FIR regarding murder of his brother in law namely Assad Ullah. He has not charged anybody for commission of offence and stated that the details and cause of murder if divulged will be intimated to police later on.
3.The police after registration of FIR started investigation and arrested one Imran Khan son of Muhammad Iqbal and after completion of investigation, the said accused was sent to judicial lockup, and the challan of the case was sent to the Court of learned Sessions Judge Gilgit. During proceedings of the murder trial one brother of the deceased namely Habib-ur-Rehman submitted an application to IGP for re-investigation of the case, which was ordered vide office order No, DIG- CR1(5)5470-73/15 dated 20.11.2015. As per facts find mentioned in final police report, one Sher Zaman son of Shahzada Khan also informed the police authorities that the accused/respondent has confessed his guilt and also ready for arrest. Accordingly she respondent/accused was arrested on 26.1.2016 and a .30 bore pistol bearing body No, 11016 was also recovered from his possession on 31.1.2016 for which a separate FIR under section 13 A.O. was registered against the respondent. The respondent got recorded his statement before a Judicial Magistrate under section 164, Cr.P.C. on 03-02-2016 confessing his guilt.
4.It is pertinent to mention here that Imran Khan, who was facing trial before the learned Sessions Judge Gilgit, was acquitted under section 265-K, Cr.P.C., after emergence of new development, although a .30 bore pistol was also recovered from him and a positive report of Forensic Expert was received, which was available on prosecution file.
5.The respondent applied for bail in the trial Court which was allowed vide order dated 16.5.2016 and the State being aggrieved from the order/judgment mentioned above, moved this Court under section 497(5), Cr.P.C., for cancellation of the bail facility allowed to the respondent.
6.The learned Addl. A.G, assisted by learned counsel for complainant Messrs Muzaffar-ud-Din and Muhammad Saleem, Advocates submitted at bar that the respondent himself became volunteer to confess his guilt and got recorded his confessional statement under section 164, Cr.P.C., which by itself is sufficient to sustain conviction. Both the learned counsel further submitted that weapon of offence has also been recovered on the pointation of the respondent, which is also an incriminating evidence and, these pieces of evidence would be sufficient to sustain conviction or a capital charge.
7.On the other hand the learned counsel for respondent submitted that the prosecution case has no legs to stand and prosecution has been changing its version from time to time as and when suited to them. Per learned counsel the case in hand is of two conflicting version which has brought the case of the accused/petitioner within the ambit of further inquiry and the respondent was rightly allowed bail by the trial Court. He further submitted that this being a bail cancellation application, very strong grounds are needed to upset the finding of trial court.
8. After hearing the learned counsel and perusal of the record with their able assistance, it is admitted fact that initially none was charged in the FIR and the police as per their own investigation arrested one Imran Khan and after completion of investigation committed him to judicial lockup and after the order of re-investigation arrested the present respondent and got recorded his confessional statement under section 164, Cr.P.C., beside effecting recovery of a .30 bore pistol.
9. From the statements recorded under section 161, Cr.P.C., and the other material which was read in open Court, the case of prosecution is of two conflicting versions having its own unique features which had made it a case of further inquiry attracting the provisions of section 497(2), Cr.P.C. The crucial question as to which version is correct was to be determined by the trial Court after recording of evidence and not possible for this Court at this stage, to render any finding on this core issue.
10. Before parting with judgment, it gives me a lot of pain that the investigation in this case has been conducted in a very dishonest manner. The I.O. of the case initially arrested one Imran Khan, recorded statements of prosecution witnesses and also collected incriminating evidence i,e, effected recovery of a .30 bore pistol and sent it to Forensic Expert and the report received therein is positive against him. The I.O. after completing of investigation found him involved in the case and submitted a final challan in the trial Court and trial Court took cognizance of the case but in the meanwhile on the order of reinvestigation the present respondent/accused was booked. Police authorities sitting in high hierarchy did not bother to bring the first investigation officer into books, who booked an innocent person in an offence of capital charge or the present I.O. and prosecution witnesses who nominated the present respondent. It may be a pre-plan to get the real culprits off the hook and to set a field for acquittal of present respondent/accused, also. The second I.O. totally changed the complexion of the case and unearthed a new story as reflected in final police report.
11.The IGP Gilgit is directed to hold an inquiry by deputing a Senior Superintendent of Police, who will look into the conduct of the both the I.Os and will recommend appropriate departmental action, as one of them seems to be guilty of professional mis-conduct. The result of the inquiry and the action so taken will be initiated to the Registrar of this Court by 30-06-2016, positively.
12.Dy. Registrar Judicial will open a separate file on administrative side and on receipt of inquiry report the same will be placed before me in my chamber for further appropriate orders, as deem necessary in the interest of justice.
13.The learned trial court has exercised its discretion in accordance with the well settled principles of law, governing grant of bail and no interference is required to upset the well reasoned judgment.
14.The upshot of above discussions is that the petition for cancellation of bail is dismissed being devoid of merits.
15.A copy of this judgment shall be sent to IGP Gilgit-Baltistan for compliance.