MALIK HAQ NAWAZ, J.----The petitioner was booked in the FIR No,66/16 registered at Police Station Gilgit under sections 324/ 34/114, P.P.C.
2. The brief facts of the occurrence as given in the FIR and Para-2 of the judgment of the trial Court are as under:-
3. The short facts of the case in the background leading to the filing of this petition as contained in the FIR are that "on 02-07-2016 at 11 a.m. the complainant and three others namely Rais Ahmed, Rahimullah and Sanaullah had reached near the gate of Bar Room Konodass, Gilgit after attending Civil Court Gilgit. In the meanwhile petitioner namely Maqbool son of Alam Jan opened indiscriminate fires on the complainant and his companions. Co-accused namely Javed son of Abdul Qadir, Mehboob Alam, Manzoor Alam sons of Alam Jan and Alam Jan son of Ghulam Jan were also present along with principal accused at the place of the occurrence and they were abetting the principal accused namely Maqbool Jan and besides the complainant three other persons namely Rais Ahmad, Rahimullah and Sanaullah received bullet injuries. The occurrence was witnessed by P.Ws namely Shakoor Ahmed and Tahir Mehmood."
4. The petitioner and one of co-accused namely Maqbool applied for post arrest bail in the trial Court. The learned trial Court allowed bail to the petitioner, while the concession of bail was refused to the co-accused namely Maqbool Hussain.
5. The instant petition for cancellation of bail has been filed by one Faramosh son of Abdul Wali.
6. The learned counsel for the petitioner submitted that the occurrence is a day light occurrence and the element of common intention is evident from the plain reading of FIR. The learned counsel further submitted that the respondent was accompanying the principal accused, who all came from Chamohogarh to Gilgit and assaulted on the life of complainant Shakeel Ahmad and because of the said indiscriminate firing one Rahimullah, Shakeel Ahmad, Raees Ahmad and Sanaullah sustained fire arm injuries and were referred to DHQ Hospital Gilgit for 1st aid treatment.
Grant of bail to the accused by the learned trial Court is not only illegal and unwarranted but also against the principle governing the grant of bail in heinous offences. The learned counsel further stated that the occurrence took place in Court premises and the respondent cannot be exonerated from the consequence of vicarious liability and common intention. The bail granting order being perverse and untenable be recalled in the interest of justice.
7. On the other hand the learned counsel for the respondents submits that no doubt the respondent is directly charged in the FIR but no overt or covert act is attributed to the respondent.
He was accompanying the principal accused but was admittedly empty handed and his common intention will be determined by the trial Court after recording of evidence. Moreover no recovery has been effected from the respondent and his case was rightly considered as a case of further inquiry and the order of learned trial court does not warrant any interference by this Court as it is based on correct appreciation of law and facts.
8. Having heard both the learned counsel and perusal of record, it revealed that co-accused of the respondent namely Manzoor Alam, Alam Jan and Javed have been discharged by the police under section 169, Cr.P.C. due to deficient evidence. The role of accused/respondent is similar to one attributed to the accused released by the police under section 169, Cr.P.C. The. present respondent is attributed the role of only abetment in the FIR and when some of the accused with similar role has been released by police under section 169, Cr.P.C, which has not been challenged by the complainant party. The rule of consistency does not attract in the case as the finding of police is not binding on the Court but the propensity demands that the persons placed/attributed similar role to be treated alike.
9. The learned counsel for the petitioner failed to make out a case for recalling the well reasoned judgment of trial Court which is accordingly upheld and cancellation of bail is declined.