MALIK HAQ NAWAZ, C.J.--- The instant bail petition owing to its travel history and the peculiar circumstances due to which it remained in limbo, makes it one of its kind in the judicial history of Gilgit-Baltistan. The bail petition pertaining to No.66/2019 had been presented to this Court in December 2019, but all praises to the abysmally low delaying tactics of the complainant side who managed to keep the same pending till date. I feel incumbent to ink here the brief synopsis of what actually happened and how the course of justice was not obstructed, but reduced to a none entity in the wake of certain frivolous petitions.
2. The bail petition was entrusted for the first time to Mr. Justice Ali Baig, the complainant side from the day first wanted to procrastinate the matter on one pretext or the other , when it was feared that their bag of tricks exhausted all the possible excuses of non-engagement and non-availability of counsel. The complainant side devised another sordidly devious scheme and to further dilly daily the matter , presented a transfer petition directly in the Court of Mr. Justice Ali Baig casting altogether frivolous aspersions on his persona. He owing to the lack of confidence of the complainant party in him, not only entertained a non-maintainable petition despite there being no such provision in the Code of Criminal Procedure, but also adjourned the matter so that the same could be placed before the Chief Justice Chief Court Gilgit-Baltistan. I in capacity of Chief Justice, Chief Court Gilgit-Baltistan while browsing the transfer petition came to the conclusion that the petition was out and out frivolous and contemptuous, so I, while discarding the obnoxious attempt at the part of complaint, referred the bail petition back to Mr. Justice Ali Baig with directions to dispose of the same positively .
3. Again, when the matter was fixed for arguments, the complainant counsel sought adjournment for preparation of his brief and the matter was adjourned to next day, but astonishingly the complainant counsel instead of arguing the bail matter presented in the Court a petition bearing No./2020, whereby my directions to dispose of the petition were assailed before the honourable Supreme Appellate Court on the score that petitioner/ complainant has not been heard in his transfer application. Although the Supreme Appellate Court was not operational in those days because of winter vacations, so technica lly neither the petition could be filed, nor entertained, besides there was no restraining order due to the non-availability of judges in the Supreme Appellate Court, yet taking in consideration the said petition, my brother Judge Mr. Justice All Baig adjourned the matter till the decision of Cr. PLA No .01/2020,
4. The accused being vexed and crucified at the altar of delaying tactics presented an application under section 561-A Cr .P.C . with the prayer that the complainant be heard regarding his transfer petition and the same be decided on merits. The complainant side once they came to know all their legally flawed intrigues are about to be exposed, sought stay of the proceedings in the petition under section 561-A, Cr.P.C, which was accordingly granted by the honourable Supreme Appellate Court.
5. It is an open secret that the complainant side yielded extraordinary influence on the Supreme Appellate Court and the culprits at multiple opinion gave vent to the resources put in use in this regard and the same has also been expressed by Mr. Justice Ali Baig during the course of hearing that one Syed Afzal, member of Kashmir Council and a well entrenched employee of Supreme Appellant Court exerted enormous pressure on him to decline the bail petition. The honourable Supreme Court of Pakistan in 1999 SCMR 1418 has observed in case titled 'Mir Hassan v. The State' , relevant citation is reproduced as under:-- "(f) Criminal Case--- Criminal case having a very chequered history and brought before Supreme Court for third time. Supreme Court observing that his case was also a classical example of Court delays on account of negligence or indifference approach on part of prosecution agency at behest of influential parties involved in the criminal case. (P .115)
(g) Criminal Case-- Dubious role of prosecution in criminal case. Supreme Court held that the case sufficiently bore out the dubious role of prosecution in the case from the very beginning perhaps for the reason that some influentials were involved in the case." (p. 1 19)
6. Ultimately , Mr. Justice Wazir Shakeel Ahmed, honourable Judge of Supreme Appellate Court disposed-of f the petition filed by the complainant side and entrusted it to me to decide the same within four corners of law. The Supreme Appellate Court while dealing with the matter observed that: " No purpose shall be served by going through the contents of the same, suffice it to find that a considerable period of time has elapsed, since, the presentation of bail petition bearing No.19/2020, before the learned Chief Court Gilgit-Baltistan, which seems to be filed on 21.01.2020, so it is just and expedient to dispose of the present petition, with the direction to the learned Chief Judge Gilgit-Baltistan Chief Court, to dispose of the aforesaid bail petition within four corners of law and facts and also keeping in view the attending circumstances of the matter in hand...
7. In support of his contentions, Learned counsel for the petitioners/ accused relied on case laws reported as 1980 SCMR 190, 1975 SCMR 151, PLD 1998 SC 97, PLD 1996 SC 241, 2019 YLR 511, whereas the learned Dy.
Advocate General and counsel for the complainant placed reliance on 2004 PCr.LJ 550, 2000 YLR 1869 , 2003 MLD 72 , 2002 PCr .LJ 1048, 2018 PCr .LJ 498 and Cr . Misc. No.145/2018 in support of their arguments.
8. Arguments of the learned counsel for the parties heard at length and considered in the light of law cases and attending circumstances of the case as per directives of the honourable apex Court.
9. Adverting to the merits of instant bail petition, the pros and cons of factual matrix of the controversy has been lucidly laid thread bare by both the couns el. The current scenario reveals that eight accused have been involved in the case including three real brothers of advance age and later on one of their brother namely Ghandol Shah who could not be implicated in the main FIR, was subsequently nominated by two eye-witnesses except the complainant and a very vital role of taking all the petitioners in his own car was attributed, which how skipped from the eyes of complainant is a big question mark. The accused persons namely Abdul Latif, Abad Shah and Lal Mast Khan have been booked in the FIR as allegedly they hatched a conspiracy for getting the accused done to death as has been held by this Court in 2019 YLR 511 and by the august Supreme Court in PLD 1996 SC 241, that the role of a conspirator is not at par with rest of the accused because every attribution of conspiracy has to be seen in the context of section 120-A/B of P.P.C. which contemplates an agreement between two or more persons to do an illegal act or an act which is not illegal but by illegal means, mere attribution of conspiracy by a prosecution witness, whose credibility is yet to be ascertained after he passes the acid test of cross-examination, cannot be accorded judicial sanction to curtail the liberty of accused.
10. Since there can be no reparation for the time spent in jail in case the accused gets acquittal in the long run of trial, the present case was never a case where the bail petition of conspirators could have reached the third highest tier of judiciary , but it seems as if legal cannolis governing the grant of bail to the conspirators have altogether been cut dead owing to the gigantic influence of the complainant side, which is in itself a shame for judiciary . There exists np legal or moral justification to withhold the concession of bail of these three accused persons. As far as accused Ghandal Shah is concerned, his subsequent implication in itself is a matter of further inquiry and the benefit of doubt cannot be withheld even at the bails stage. Reliance is placed upon PLD 1972 SC 277, 1995 SCMR 387, 2016 SCMR 1792 , 2016 SCMR 1558 .
11. The accused Shafayat Ullah at the very onset has taken a plea of alibi. While browsing the documents annexed with the bail petition, it appears that plea of alibi has not been taken in vacuum, rather the same seems justified being augmented by certain unimpeachable documentary evidence. One of which is a biometric verification receipt for Hajj purposes and the same has been conducted on the fateful date, which cannot be ignored due to its online system. The accused even on the following day was present in Gilgit as reflects from the register of Kashrote Inn Hotel. It cannot be believed that a person intending to go for Hajj would after being verified biometrically will get to commit someone murder and after that would go back to stay in the hotel. Keeping in view the dicta laid down in 1996 SCMR 931 and PLD 1998 SC 97, the plea of alibi is justified and the accused deserves the concession of bail.
12. Now, reverting to the case of accused Zeb Alam, it is pertinent to mention here that he himself was a student of law and was in final year when the predicament commenced. With respect to the presence of accused, three advocates Saeed Khan son of Khawaja Mir, Fazal Ellahi son of Fazal Wali, and NuPal Wall son of Rehmat Shah have sworn in their affidavits mentioning therein that the accused on that fateful day was present with them in connection with hearing of a case and he received the information while being in their company . It is pivotal to be mentioned here that all these three advocates are not only non-partisan witnesses of the accused presence with them, but are also locals of said area. None would bear the burnt in such like cases including blood feuds until and unless their conscious rings a bell to stand by the truth. In addition to the testimony of advocates exonerating some accused persons has been given due weight-age by the Courts of law. Reliance can be held on 1980 SCMR 190 and 1975 SCMR 151 .
13. Besides the aspects discussed above, there are certain other legal and factual aspects of the case, which make the grant of bail to the accused imperative as discussed above involving three grey haired persons in conspiracy and one of their brother , left out in the FIR, got subsequently implicated by the other eye-witnesses, so the phenomenon of throwing a wider net is apparent from the day first, which is in itself a circumstance always deprecated by the Courts of law. Reliance can be placed on 2016 SCMR 2046 and 1998 MLD 1957 , where the complainant, who himself involved some innocent persons in the crime, who from attending circumstances, were deemed to have been not privy to the crime, then who took part in the crime if at all, would also be entitled for concession of bail. Law does not favour a "compulsive liar" even at bail stage.
14. In addition to taking on the generalized allegations, it still cannot be ciphered out that whose blow amongst the plenty of accused persons sounded fatal besides the intention to kill, seems altogether missing in totality of circumstances wherein an accused person has been shown duly armed with pistol and the deceased throughout the occurrence did not receive any fire shot.
15. Last, but no the least, the principle laid down in 2016 SCMR 18 and 2007 PCr.LJ 1027 should be strictl y adhered to which reads that even a mistaken ad-interim relief could be repaired if the accused ultimately gets convicted, but if the relief is denied there can be no compensation for an accused who ultimately gets acquitted. In furtherance the malice at the part of complainant in the present case is apparent who instead of getting the bail petition decided on merits, resorted to delaying tactics that too by mudslinging on the honourable Judges of Higher Judiciary filing multiple frivolous petitions to achieve the desired end is yet a circumstance against the complainant which further establishes mala fide at his part, the benefit of which will invariab ly go to the accused persons.
Resultantly , all the petitioners/accused are hereby enlarged on bail against a sum of Rs.200,000/- (Two Lac Only) with two sureties against each accused to the satisfaction of trial Court/Judicial Magistrate at Chilas.
16. Before parting with the judgment, it is necessary to lay principles to curb such menacing trends from advocacy , therefore, any Magistrate, Courts of Sessions or Higher Court should be extra conscious in receiving or entertaining transfer/no confidence petition. Any such petition unless it objectively depicts pecuniary or personal interest of the Judge in the outcome of the case should never be entertained, where the allegations are vaguely sketched and loosely narrated the Courts up to the Court of Session, should immediately proceed against the applicants under section 228, P.P.C. and the Higher Courts under section 3 of Contempt of Court Ordinance 2003, besides where hearing of matter is procrastinated by filing frivolous and delaying petitions, the Court seized with the matter should not lay her hands off unless there exists a categorical restraining order from Superior Courts.
From now onwards, every bail petition whether pre-arrest or post-arrest, after the first notice, should not stretch beyond a period of one week.The Judge hearing the bail petition should let each of the party know that they are supposed to engage counsels before the fateful date, failing which the bail petition will be decided on merits even in the absence of counsels of the parties.
17. A copy of this order be sent to all the Sessions/Addl. Sessions Judges, and Judicial Magistrates for their information/ strict compliance.
18. Criminal Miscellaneous No.19 of 2020 is disposed-of f. File.