ALI BAIG, C.J. The instant application has been moved by the petitioner namely Gul Safaid under section 497, Cr.P.C. praying therein that he may be admitted to post arrest bail pending trial in the FIR No. 19/2017 dated 27-09-2017 registered under sections 302/34, P.P.C. at Police Station Gabar Tangir District Diamer.
2. Briefly stated, the facts of the case are that an FIR was lodged on 27-09-2017 at 09:30 hours by one Loot Muhammad son of Fazil Rahman, the complainant with Police Station Gabar against the present accused/ petitioner and his co-accused. It was alleged in the FIR that on the day of occurrence the present petitioner and his co-accused namely Barkat Wali Khan opened fires on the deceased namely Altaf son of Utail which hit the deceased and he succumbed to his injuries.
The above named accused decamped from the scene of occurrence. The occurrence was witnessed by the mother and son of the deceased. Motive behind the occurrence was stated to be old enmity between the parties.
3. It would not be incongruous to mention here that earlier the petitioner/ accused had filed bail petition under section 497, Cr.P.C. before the learned trial Court which was dismissed by the learned trial Court vide bail order dated 31-08-2021, hence this petition.
4. The learned counsel appearing on behalf of the petitioner contended that that the petitioner is innocent and complainant has falsely implicated the petitioner in this case. The learned counsel for the petitioner further argued that co-accused of the present petitioner namely Barkat Wali Khan has been discharged under section 169, Cr.P.C. by the Police, hence rule of consistency applies to the case of the petitioner and he is entitled for concession of bail. The learned counsel for the petitioner/ accused further argued that there are glaring contradictions in the statements of PWs recorded under section 161, Cr.P.C. by the Police, thus case of the petitioner requires further inquiry.
5. Conversely, the learned counsel for the State controverted the arguments advanced by the learned counsel for the petitioner by contending that the accused/ petitioner is directly charged in the promptly lodged FIR with specific role of effective firing upon the deceased. The learned counsel for the State further argued that immediately after the occurrence, the accused / petitioner was absconded and he has remained fugitive from law for about 04 years and he has been arrested on 27-07-2021. The learned Dy.A.G further argued that offence under section 302, P.P.C. falls under the prohibitory clause of section 497, Cr.P.C. Concluding his arguments the learned Dy.A.G maintained that eye-witnesses have witnessed the occurrence and motive behind the occurrence has been disclosed as old enmity between the parties in the FIR, therefore, the accused/ petitioner is not entitled for concession of bail.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and with their able assistance perused the available record.
7. Perusal of record reveals that the accused/ petitioner is directly nominated in the promptly lodged FIR with specific role of effective firing on the deceased. Weapon of offence i.e. five shot rifle has been recovered from the house of petitioner/accused on his pointation in presence of impartial private marginal witnesses. Offence under section 302, P.P.C. falls within the ambit of prohibitory clause of 497, Cr.P.C. and eye-witnesses who are natural witnesses have witnessed the occurrence. Motive behind the occurrence has been mentioned as old enmity between the parties in the FIR.
8: As far as rule of consistency is concerned no recovery has been effected from the co-accused of the present petitioner namely Barkat Wali Khan and some PWs in their statements recorded under section 161, Cr.P.C. by the Police have exonerated the above named co-accused, thus rule of consistency is not applicable in the case of present petitioner/ accused. Moreover, the petitioner/ accused has remained absconder for about 04 years of the occurrence and he was arrested recently, 9'. From tentative assessm ent of material collected by the prosecution during investigation, it transpires that reasonable grounds are there to believe that petitioner/ accused has prima-facie committed murder of the deceased.
10. Deeper appreciation of evidence and circumstances appearing in the case are neither desirable nor permissible at bail stage as Court would not minutely examine the merits of the case nor plea of the defense at such stage.
11. For the forgoing reasons, I am not inclined to grant bail in favour of the petitioner/accused consequently, this bail petition is dismissed. File.