RAJA SHAKEEL AHMAD, J. Petitioner/accused Rehmat Khaliq applied for bail after he failed to secure his such relief from Learned Court of Additional Sessions Judge District Diamer, involved in case FIR No.16/2018 dated 19.12.2018 under sections 324,337-F(v), .P.P.C., registered at Police Station Gabar Tangir, District Diamer.
2. Facts of the case as mentioned in the FIR are that on 19/12/2018 accused Rehmat Kahliq son of Hazart Ayaz, along with other co-accused Hazart Ayaz and Mohammad Ayaz sons of Gulab Khan resident of Bigyote Tangir came to the place of occurrence and opened indiscriminate firing upon the victim namely Abdur Rasheed son of Sangi. In result of the firing Abdul Rasheed got injured. The offence was witnessed by PWs Sabir Shah, Muhammad Amin and Abdul Aman. Motive behind the occurrence is alleged previous enmity between the parties.
3. The learned Counsel for the petitioner/accused argued that, the local police arrested the petitioner and co-accused namely Muhammad Ayaz and Hazarat Ayaz allegedly involved with similar role, were later on released by the police under section 169, Cr.P.C. The learned counsel for the petitioner/accused further argued that at the time of alleged. occurrence the petitioner was minor aged about 14 years. The learned Counsel for the petitioner/accused contended that the petitioner/accused is law-abiding citizen and the local police 'have maliciously involved the petitioner/accused in the instant case on the behest of the complainant. The learned counsel further argued that the alleged allegations are general involving all the accused for indiscriminate firing and accused is not specifically charged for effective firing on the victim. He further submitted that there is material contradiction in statement of victim, statement of eye-witnesses and site plan prepared by the I.O. soon after the occurrence which make the case of the prosecution doubtful and of further inquiry. The learned counsel submitted that the statement of victim under section 161, Cr.P.C. recorded after laps of 05 days of occurrence without any explanation the cause of such delay hence the statement of victim couldn't be relied being fabricated and concocted.
The learned counsel further submitted that the alleged recovery is fake and fabricated, as the eye- witnesses of the recovery have submitted their affidavits wherein both the witnesses have stated that they have no knowledge about the alleged recovery from the accused. The learned counsel in continuation of his arguments stated that the occurrence took place in a thickly populated area but no impartial witness included in the instant case, the petitioner/accused has no concern whatsoever with the commission of the alleged offence resultantly this is an errant display of mala fide on the part of the complainant. Lastly, the learned counsel submitted that due to the contradictions in the statements of the victim and eye-witnesses, and site plan the prosecution case is doubtful and one of further inquiry, the role of consistency also applicable in the instant case and at the time of alleged occurrence the petitioner/accused being minor is entitled to be released on bail not as matter of grace but as matter of right.
4. The learned DAG vehemently opposed the contention of the learned counsel of the accused and argued that the accused is directly nominated in the promptly lodged FIR. The accused has remained absconder for a period of 3 years. He further contended that the school leaving certificate submitted by the accused along with his bail petition is fake which is issued a day after arrest of accused/petitioner. He further argued that the accused has not claimed his minority during investigation, release of co-accused namely Hazarat Ayaz and Mohammad Ahaz under section 169, Cr.P.C. by the I.O. is unlawful and statements of eye-witnesses were recorded on the day of occurrence and the accused is fully involved in the commission of the offence the learned Additional Judge District Diamer rightly dismissed the bail petition and petition in hand is also liable to be dismissed on the same grounds.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the record of the case minutely. I also perused the police file presented in the court. The I.O. recorded the statements of eye-witnesses namely Sabir Shah, Mohammad Amin and Abdul Aman under section 161, Cr.P.C., on the following day i.e. 20/12/2018.: All the above named eye-witnesses alleged that the accused Rehmat Khaliq son of Hazarat Ayaz, Hazarat Ayaz and Mohammad Ayaz sons of Gulab residents of Bigyote Tangir armed with fire arms came to the scene of occurrence and started indiscriminate firing, due to which the victim got injured but none of them attributed the injury caused due to the fires shot of accused/petitioner. The I.O. recorded the statement of Victim Abdul Rasheed under section 161, Cr.P.C. on 24.12.2018 after un explained delay of 05 days wherein he alleged that the accused/petitioner and Hazarat Ayaz came to the scene of occurrence, and accused Rehmat Khaliq fired on him, according to the statement of victim only two accused came to the scene of occurrence. Apparently there is contradiction between the statement of PWs and the victim. The I.O. have prepared site plan on 20/12/2018 on the pointation of eye-witnesses, surprisingly the I.O. in point Nos. 2 to 4 have shown that the accused Relunat Khaliq fired on the victim from the point No. 2 accused Hazarat Ayaz fired on the victim from the point No. 3 and Accused Mohammad Ayaz fried on the victim from point No. 4 astonishingly the I.O. recovered two empties of 9MM Pistol from the point No. 3 from where the accused Hazarat Ayaz was firing according to the site plan. It is alleged in all the statements that, all the three accused were armed with weapons and started indiscriminate firing on the victim but despite arrest of all the accused the police didn't recovered any fire arm with which the accused Hazarat Ayaz and Mohammad Ayaz fired on the victim at the scene of occurrence shown in the site plan. During perusal of police file it reveal that after arrest of all the three accused the complainant of the FIR himself came to the I.O. with a submission that he mistakenly mentioned the names of Accused Mohamad Ayaz and Hazarat Ayaz in the FIR and the I.O. on the basis of the above statement release the two accused under section 169, Cr.P.C. If the statement of the complainant is assume to be true whereas the I.O. of the case already taken it as true and released the co accused, then the case of the prosecution stands nowhere, considering the supplementary statement of the complainant as truth means that the victim of the occurrence and eye-witnesses thereto are telling lie and recorded false statements before the I.O. regarding the occurrence.
6. What has been discussed above I found that the case in hand falls under the ambit of section 497(2), Cr.P.C. because there are sufficient grounds for further inquiry.
7. The accused petitioner also sought bail on the ground of his juvenility at the time of alleged occurrence. Accused was minor and was aged about 14 years at the time of alleged occurrence which fact is supported by his school living certificate, although the DAG opposed the fact with the contention that the certificate is fake being issued one day after the arrest of the accused but couldn't rebut the same through any document.
8. The rule of consistency also applies in the present case as the other co accused with the role at par with the accused have been released by the police under section 169, Cr.P.C.
9. The alleged recovery of weapon of offence, from accused become doubtful because both the marginal witnesses of recovery memo have submitted their affidavits which are part of the bail petition wherein both the witnesses namely Fazal Elahi son of Farmas Khan and Abdul Ghani son of Mansoor Khan residents of Bigyote have deposed that they have no knowledge about the alleged recovery from the accused.
10. When the Learned DAG was confronted with all above illegalities and discrepancies made during the investigation which make the case of prosecution doubtful and the case in hand become one of further inquiry, instead of giving any clarification on the above illegalities the learned DAG emphasized that the petitioner had been remained a proclaimed offender for three years, abscondence takes away some of the remedies available to the accused, in normal circumstances thus he is not entitled to the concession o bail. I am not agree with this submission because it has already settled by the Supreme Court of Pakistan that when the case against the accused calling for further inquiry into the guilt of the accused persons bail is to be allowed to him as of right and not by way of grace, and in such a case mere abscondence of the relevant accused person may not be sufficient to refuse bail to him, reference in this respect may be made to the cases, Ehsan Ullah v. The State 2012 SCMR 1137) Mohammad Sadique v. Sadiq and others (PLD 1985 SC 182) and Qamar alias Mitho v. The State (PLD 2012 SC 222).
11. Resultantly this application is accepted and the petitioner is released on bail in FIR No.16/2018 of Police Station Gabar Tangir, district Diamer in case he furnishes bail bonds in the sum of Rs.
400000/ (four Lac) with two local sureties each in like amount to the satisfaction of learned trial court, who shall ensure that the sureties are local, reliable and men of means. Bail granted.