' MALIK HAQ NAWAZ, J.---The Brief facts of the case are that one Nowsher son of Darop Shah resident of Dodeshal District Diamer lodged FIR No, 13/15 dated 27/4/15 under sections 302/114/34, P.P.C. In which both the petitioners along with two other were charged for commission of double murder of deceased Rehmat Ullah and Mst. Arshana on the suspicion of illicit relations.
2. Since all the details of the occurrence have been mentioned in the impugned judgments therefore, these are not being recapitulated herein.
3. The learned counsel for the petitioner Quaid-e-Azam and Zaid submitted at bar that the case is false and the accused have been involved maliciously and there is no independent corroboratory evidence on the police file and no recovery has been effected from the petitioner Zaid son of Ayoub. The postmortem on the dead bodies of both the deceased has not been conducted leaving a major lacuna in the prosecution case. One of co-accused namely Ahmed Hussain attributed effective firing has been released on bail by the SHO under section 169, Cr.P.C. And drew attention of the court toward final police report prepared under section 173, Cr.P.C. Which reflects the same facts. Further submitted that FIR is delayed by 24 hours, which delay apparently has been consumed to cook up a false case. The release of co-accused Ahmad Hussain and Abdul Hadi has not been either challenged by the complaint by filing a private complaint nor by the State, hence under the law of consistency the petitioner Quaid-e-Azam and Zaid are also entitled for concession of bail, Mr. Jahar Ali, Advocate adopted the arguments of Mr. Amjad Hussain and added that no recovery has been effected from accused/petitioner Zaid and the accused are rotting in the jail, while their co-accused are enjoying liberty because of blessing of the I.O.
4. On the other hand Dy.A.G. And counsel for the complainant Mr. Munir Alam, Advocate opposed the petitions and submitted that the petitioners have been directly charged in FIR and the occurrence being day light the concession of bail should not be extended to the petitioners as the offence is heinous and also falls within the compass of prohibition contained in Section 497, Cr.P.C.
5. I have given my anxious consideration to the arguments raised at bar by the learned counsel of both the parties and scanned the record of the case with their able and valuable assistance. One of the accused namely Abdul Hussain and Abdul Hadi have been declared innocent by the I.O.
Under section 169, Cr.P.C. As reflected in final police report submitted under section 173, Cr.P.C, despite the hard facts that accused Abdul Hussain is charged for opening effective firing on both the deceased. For the purpose of convenience Section 169, Cr.P.C. Is reproduced as under:-- S. 169, Cr.P.C. Release of accused when evidence deficient.... If, upon an investigation under this Chapter, it appears to the Officer incharge of the police station, or to the police officer making the investigation that there is not sufficient evidence or reasonable ground, and suspicion to justify the forwarding of the accused to a Magistrate, such officer, shall if such person is in custody release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or {send} him for trial.
6. No doubt, the function of the courts and the police are entirely different and there are water tight arrangements to exercise the jurisdiction and clear parameter have been outlined. A plain reading of Section 169, Cr.P.C. Depicts that the Courts could not impeach upon the jurisdiction of police to change its opinion and to bring it in conformity with their opinion and there is no cavil in the proposition of law that the powers exercised by the I.O. Under section 169, Cr.P.C, cannot be disturbed by Session Judge or even, by High Court till cognizance of the case is taken by the competent Court of jurisdiction under section 190(1), Cr.P.C, but at the same time it should be noted that the department of police is tool, which assist the courts to administer justice between the parties but when with the passage of time or because of lack of proper supervision by the functionaries sitting in helm of the affairs, these tools becomes blunt then chiseling becomes the duty of the Courts. The powers under section 169, Cr.P.C. Available to I.O. Are not unfettered and cannot be exercised like a charity. It goes without saying that these powers are not being exercised properly but are being misused by the I.Os. As they know that their misdeeds will go un-accounted by their superiors who never bother to check their illegal and nefarious acts and the culprits of heinous offences are acquitted from the Courts of law and case in hand is one of the classical example of the same.
7. Not an iota of evidence has been brought on record by the I.O. Which was used in favour of accused to release them under section 169, Cr.P.C. And at the same time the complaint was also sleeping over the matter as he did not avail the remedy of private complaint and the learned prosecutor, did not move any bail cancellation application before the trial court, when the Court took cognizance of the case under section 190(1), Cr.P.C. Against the accused released by the I.O.
Under section 169, Cr.P.C.
8. As well as the contention of both the learned counsel that after release of accused Abdul Hussain and Abdul Hadi under section 169, Cr.P.C., the petitioners are also entitled for the grant of bail under the rule of consistency. It is to be clarified that if an accused is released by the I.O. Under section 169, Cr.P:C., the remaining accused cannot claim bail on the ground that their co-accused or any of the co-accused has been released on bail by the I.O. Rule of consistency could only be pressed if an accused with similar and identical role is released on bail by the court of competent jurisdiction and, the others are declined the same concession, only then the appellate court will scrutinize and judge the applicability of rule of consistency.
9. However, there are some other factors which forced me to exercise my discretion in favour of the petitioners. The petitioners are in judicial lock up since long, whereas their co-accused Abdul Hussain charged for effective firing on both the deceased and one Abdul Hadi charged under section 114, P.P.C., have been declared innocent by the I.O. Under section 169, Cr.P.C. Neither the complainant nor the State moved for cancellation of their bail in the court of competent jurisdiction when the court took cognizance.
10. The learned Dy.A.G. And learned counsel for the complainant when confronted conceded at bar that the record is silent about the query raised by the court. No doubt, that release of both the accused by the I.O. Was unwarranted, illegal and not backed by any cogent evidence in their favour. The action of the I.O. Cannot be protected under law as facts of the case in hand speak otherwise. There is an inordinate delay of 24 hours in lodging the FIR, which though cannot be considered fatal at bail stage, but trial Court will see whether the FIR was delayed due to some un available and compelling circumstances or it was used for putting a tailored story in the FIR coupled with non recovery of incriminating weapons of offences, makes the case as one of the further inquiry under section 497(2), Cr.P.C.
11. On 18.3.2016 after hearing the parties, by means of a short order both the petitioners were allowed bail and these are the reasons for exercise of discretion in favour of the petitioners.
12. Needless to mention here that my observations are only tentative in nature and will not prejudice the mind of the trial Court and the trial Court shall decide the case independently without being influenced by this judgment, which is only limited up to the extent of disposal of the above titled bail applications.
13. A copy of this order shall be sent to IGP Gilgit, who will circulate the same to all the SPs under his subordination with the direction the judgment should be followed in letter and spirit and the I.O.
Should not exercise the powers like bounty and very spirit of the section should not be defeated.
Any deviation, if brought/noticed by this Court the delinquent official will be dealt with under the relevant laws.