ALI BAIG, J.---Through the instant petition filed under section 497, Cr.P.C., the petitioners/accused have sought post arrest bail in case FIR No.09/2019 dated 04-10-2019, registered under sections 302/34, P.P.C., at Police Station Gonar Farm Chilas, District Diame r as the post arrest bail petition of the petitioners had been dismissed by the learned V acations Sessions Judge Gilgit vide bail order dated 24-01-2020.
2. Briefly prosecution case as narrated in the FIR is that on 04-10-2019, at 10:30 a.m., the present petitioners had committed murder of the deceased namely Gul Hazar by opening fires with .30 bore pistol and assaulting with a spade. The complainant and brother of deceased namely Babar Khan have witnessed the occurrence and accordingly the complainant, namely Mir Azam son of the deceased, had lodged FIR against the present petitioners and their co-accused namely Fazal Elahi.
3. The learned counsel for the petitioners have contended that petitioners are innocent and complainant has falsely implicated them in this case with mala fide intention. The learned counsel for the petitioners have further contended that one nominated co-accused of the petitioners namely Fazal Elahi has been discharged by police under section 169, Cr.P.C., therefore, rule of consistency applies to the case of petitioners and the petitioners/accused are entitled for concession of bail.
4. Conversely , the learned Deputy Advocate General and the learned coun sel for the complainant have controverted the arguments advanced by the learned counsel for the petitioners by contending that the petitioners/accused are directly nominated in the promptly lodged FIR with specific role. The learned Deputy Advocate General and counsel for the complainant have further argued that eye-witnesses have witnessed the occurrence as it was broad day light occurrence and section 302, P.P.C. falls within the ambit of prohibitory clause of section 497, Cr.P.C. The learned Deputy Advocate General and counsel for the complainant have further argued that the weapon of offence, i.e., .30 bore pistol has been recovered from the accused namely Mohammad Nawab and a separate case under section 13, A.O. 1965 has been registered against the above named petitioner vide FIR No.10/2019 at Police Station Gonar Farm.
5. I have given my anxious consideration to the submissions made by the learn ed counsel for the parties and perused the record of the case with their able assistance.
6. From perusal of record, it transpires that petitioners/accused are directly nomina ted in the FIR with specific role of effective firing on the deceased. Eye-witnesses have witnessed the occurrence and offence under section 302, P.P.C. falls within the ambit of prohibitory clause of section 497, P .P.C.
7. Main thrust of contentions of the learned counsel for the petitioners is that one nominated co-accused of the petitioners has been discharged by police under section 169, Cr.P.C., therefore, rule of consistency is applicable to the case of present petitioners and petitioners are also entitled for concession of post arrest bail. From perusal of record, it transpires that the case of discharged accused namely Fazal Elahi is distinguishable from the case of present petitioners. Furthermore, rule of consistency is not absolute and inflexible . It can be applied only when a person is entitled to bail on merit. When a person is not entitled to bail on merits, he cannot claim it solely on the principle of consistency as in fact principle of consistency has a limited scope and while applying this principle, the facts of each case shall be the deciding factor for the grant or refusal of bail. In the instant case, the petitioners on merits is not entitled for concession of bail, therefore, they cannot be admitted to bail on the aforesaid principle.
8. In view of what has been discussed above, I do not find any IF merit in this bail petition which is hereby dismissed. File.