ALI BAIG, C.J. The instant bail petition has been filed by the petitioner/accused under section 497, Cr.P.C. read with section 21-D of the Anti-Terrorism Act, 1997 seeking post arrest bail in case FIR No. 82/2012 registered under sections 302/34, P.P.C. and sections 6/7, ATA, 1997 at Police Station Basin Gilgit. The learned Judge, Anti-Terrorism Court No.1, Gilgit-Baltistan, vide order dated 05.05.2023 passed in Cr. Misc. No.11/2023, has dismissed the bail application of the petitioner/accused, hence this petition.
2. Succinctly, the prosecution story as narrated in the FIR is that on 23.12.2012 at about 8:30 hours, some unknown persons had committed murder of deceased namely Naiber Hussain by opening fires with fire arm at Choti Basin. The incident was shown as religious terrorism by the police. During investigation of the case, the local police arrested the present petitioner/accused as suspect and during investigation the petitioner/accused has allegedly admitted that he has committed murder of the deceased.
3. The learned counsel for the petitioner/accused argued that the FIR was registered in the year 2012 against unknown persons, whereas the local police have arrested the petitioner/accused in the year 2023 with mala fide intention. The learned counsel for the petitioner/accused further argued that the petitioner is a government employee and he has nothing to do with the commission of offence. The learned counsel for the petitioner/accused further argued that there is no eye-witness of the occurrence. The only eye-witnesses whose statement was recorded by the police under section 161, Cr.P.C. has submitted his affidavit wherein he has stated that he has not witnessed the occurrence and the police have recorded the statement under section 161, Cr.P.C. by themselves without his consent, hence, the statement of so-called eye-witness recorded under section 161, Cr.P.C. by the police cannot be relied upon, as such the petitioner is entitled for concession of bail. The learned counsel for the petitioner/accused further argued that no crime weapon has been recovered from the petitioner/accused by the police. The learned counsel for the petitioner/accused further argued that there is an inordinate delay in recording statement of the so-called eye-witness under section 161, Cr.P.C. by the police, as such the case of the prosecution is full of doubts and the petitioner/accused is entitled for concession of bail. The learned counsel for the petitioner/accused further argued that the statement of accused/petitioner under section 21-H of ATA, 1997 has been recorded during his physical remand as such the same cannot be, considered a solid piece of evidence against the petitioner/accused.
Concluding their arguments, the learned counsel for the petitioner/ accused argued that the case of prosecution against the petitioner/accused is self-made and prima facie there is no incriminating material on record to connect the petitioner/accused with the commission of offence, hence the petitioner/accused is entitled for concession of bail. In support of their arguments, the learned counsel for the petitioner/accused have relied upon judgments of superior Court reported as 2000 YLR 2017, 2012 YLR 2568, 1991 SCMR 111, 1996 MLD 108, 1988 SCMR 474, 2010 GBLR 149, 2017 MLD 1771, 2017 SCMR 279, 2019 YLR 1332, 2006 PCr.LJ 542, 2018 YLR 716, 2020 MLD 883, 2017 PCr.LJ Note 50 and Order dated 24.12.2021 passed by this Court in Cr. Misc. No.199/2021.
4. Conversely, the learned DAG and the learned counsel for the complainant controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the petitioner/accused has confessed his guilt in his confessional statement recorded under section 21-H of ATA, 1997. The learned DAG and the learned counsel for the complainant further contended that eye-witness of the occurrence whose name has been mentioned by the petitioner/accused himself in his statement recorded under section 21-H of ATA, 1997, has fully implicated the petitioner/accused with the alleged crime/occurrence. The learned DAG and the learned counsel for the complainant further contended that the site plan of the recovery of crime weapon which was thrown by the petitioner/accused in Kargah Nallah/river after commission of offence, has been prepared on the pointation of the petitioner/accused in presence of impartial private witnesses. The learned DAG and the learned counsel for the complainant further contended that offences reflected in the FIR are fully attracted to the case of petitioner/accused which are non- bailable. The learned DAG and the learned counsel for the complainant further contended that prosecution has sufficient incriminating material which fully support the version of prosecution. The learned DAG and the learned counsel for the complainant further contended that the affidavit of the eye-witness is not admissible at bail stage. The learned DAG and the learned counsel for the complainant further contended that petitioner/accused has committed murder of an innocent person in broad day light and there is no probability of false implication of the accused/petitioner in the instant case. While concluding their arguments, the learned counsel for the complainant and DAG argued that the petitioner/accused is not entitled for any concession of bail and bail petition of the petitioner/ accused is liable to be dismissed.
5. We have heard the arguments advanced by the learned counsel for the parties and with their able assistance minutely perused the available record of the case.
6. From perusal of record it transpires that although the petitioner/accused was not directly nominated in the FIR but later on the local police had arrested the petitioner/accused as suspect of murder of the deceased. During course of investigation, the accused/petitioner confessed his guilt stating that he had committed murder of the deceased in presence of PW Faizan. Accordingly, police arrested the above-named PW and recorded his statement under section 161, Cr.P.C, wherein he has categorically implicated/involved the petitioner/accused in this case. Thereafter police have discharged the above-named PW under section 169, Cr.P.C.
7. Although the petitioner/accused has obtained an affidavit from the PW namely Faizan after dismissal of his bail petition by the learned Judge, Anti-Terrorism Court Gilgit on 07.05.2023 resiling his previous statement recorded under section 161, Cr.P.C. by the police as eye-witness. In this connection it is settled principle of law that at bail stage evidence of witness recorded by police could not be kept out of consideration on the basis of affidavit filed by the PW. Hence, we are of the considered view that evidentiary value of the affidavit would be considered/evaluated at the time of trial of the accused/petitioner by the learned trial Court as deeper appreciation of evidence is not permissible at bail stage.
8. At the time of arguments on the bail petition, Court is supposed to do tentative assessment of material available on record which is different from final appraisement and evaluation of evidence which is to be recorded by the learned trial Court. Reference in this respect can be made to the reported judgments of the Hon'ble Supreme Court of Pakistan reported as PLD 1997 SC 347 and 2006 SCMR 1265.
9. From tentative assessm ent of material collected by the prosecution during investigation, it reveals that the accused/petitioner is prima facie connected with the commission of offence of murder of the deceased as confessional statement of the petitioner/accused under section 21-H of ATA 1997 has been recorded by SP Gilgit wherein he has admitted that in presence of PW Faizan, he had committed murder of the deceased and police has prepared site plan of recovery of weapon of offence on the pointation of the accused/petitioner in presence of independent marginal witnesses as allegedly the crime weapon was thrown into Kargah Nallah/river by the petitioner/accused after committing murder of the deceased.
10. For what has been discussed above, this bail petition is dismissed being bereft of merits.
11. Before parting with this order, the learned trial Court is directed to conclude trial of case of the petitioner/accused within four months of the passing of this order without affording unnecessary adjournments to the parties. If trial Court fails to conclude the trial of the accused/petitioner within the aforesaid period, the petitioner/accused would be at liberty to file fresh bail petition on the ground of delay in conclusion of trial. File