ALI BAIG, CJ. The instant bail petition under section 497 Cr.P.C has been filed by the petitioner/accused for grant of post arrest bail, in criminal case bearing FIR No. 67/2022 registered at Police Section Airport Gilgit for offences under sections 147, 324/34 and 337-D P.P.C. read with section 6/7 and 21-L of Anti-Terrorism Act, 1997.
2. Brief facts of the case as per contents of the FIR are that complainant namely Usama son of Kareemuallh lodged a complaint before the SHO Police Station Airport Gilgit stating therein that on 30-7-2022 at about 05:30 hours when he reached near Yadghar Chowk Barkey to buy some soft drinks, a procession arrived-there and the local police were also present along with the procession/mob. A motorcyclist from the procession quarreled with a chingchi driver. Some other motorcyclists from the procession also belaboured the chingchi driver. In the meanwhile the armed persons from the procession, and police officials raising anti religious slogans in order to spread fear and terror, opened fires towards Sdiddiqia Masjid from the place of occurrence/Yadyar chowk on passerby and Namzies/worshipers. Further contended that he does not know the armed persons, however, he knows the police persons by face, one is from Qazalbash Mohallah and the another is from village Barmas. Resultantly, he received a bullet injury in his chest and he fell down on the ground, while Qasir Iqbal son of Pervaiz Iqbal has also received bullet injures and the locals of the areas shifted them to hospital for treatment.
3. On receipt of the complaint the concerned SHO registered the aforesaid FIR and started the investigation and during investigation the SHO arrested the present petitioner/accused and some other co-accused of the petitioner and after completion of formal investigation to the extent of present petitioner, he has committed the accused/present petitioner to judicial custody/lock-up at Gilgit.
4. The present petitioner had filed a post arrest bail application before the learned trial Court/ATC Gilgit. The learned trial Court/ATC Gilgit, after hearing the arguments on behalf of both the parties has dismissed the bail application of the present petitioner/accused vide judgment/order dated 11-10-2023, hence, the instant petition before this Court seeking post arrest bail on the grounds detailed in the petition.
5. The learned counsel for petitioner/accused contended that the petitioner/accused is innocent and has falsely been implicated in the instant case. The learned counsel for the petitioner/accused further submitted that there is no eye-witness of the occurrence and the petitioner/accused has been arrested without any cogent reason. The learned counsel for the petitioner/accused further submitted that the petitioner/accused is not directly nominated or even suspected in the FIR and no specific role has been attributed to him in the FIR. The learned counsel for the petitioner/accused further submitted that the I.O of the case has released some nominated co- accused under section 169 Cr.P.C therefore, rule of consistency fully applied to the petitioner's case.
The learned counsel for the petitioner/accused further submitted that the prosecution story is self made and fabricated which is based on mala fide intention. The learned counsel for the Petitioner/accused further submitted that nothing incriminating has been recovered from the possession of the present petitioner/accused by the I.O during investigation of the case. The learned counsel for the petitioner/accused further submitted that investigation of the case has been completed and the petitioner/accused is no more required for further investigation, hence, the petitioner/accused is entitled for concession of bail. The learned counsel for the petitioner/accused lastly submitted that there is no direct or indirect evidence is available on record against the petitioner/accused therefore, petitioner/accused is entitled for the concession of bail, which may be allowed to meet the ends of justice.
6. On the other hand the learned Deputy Advocate General vehemently opposed the contentions raised by the learned counsel for petitioner/accused and contended that the offences reflected in the FIR are fully attracted to the petitioner's case and falls within the ambit of prohibitory clause of section 497 Cr.P.C. The learned Deputy Advocate General further contended that the occurrence had taken place due to illegal and unlawful act of the present petitioner/accused, peaceful atmosphere of the area has been disturbed and two innocent persons have lost their lives. The learned Deputy Advocate General further submitted that the offences are non bailable and capital punishment is provided for the said offences, therefore, the petitioner/accused is not entitled for concession of bail. The learned Deputy Advocate General further submitted that the prosecution has collected sufficient material/evidence to connect the accused/petitioner with the alleged crime. The learned Deputy Advocate General further submitted that the petitioner/accused is fully involved in the unpleasant incident and is not entitled for any leniency. The learned Deputy Advocate General further submitted that the petitioner/accused is directly nominated in the FIR and the police has recovered the weapon of offence from the possession of the accused/petitioner on his leading and pointation. The learned Deputy Advocate General further submitted that the petitioner/accused has confessed his guilt in his confessional statement recorded under section 21-H of ATA. The learned DAG further submitted that the petitioner/accused has specific role in the occurrence and his role is entirely different from his co-accused as such rule of consistency does not apply to the case of the petitioner/accused. The learned DAG lastly submitted that the learned trial Court/ATC has rightly refused the bail petition and the learned counsel for the petitioner/accused has failed to substantiate the grounds mentioned in the petition. The petition in hand is not maintainable and is liable to be dismissed to meet the ends of justice.
7. We have heard the arguments advanced by the learned counsel for the parties and perused the record of the case with their able assistance.
8. From perusal of record it transpires that the petitioner/accused is not directly nominated in the FIR and no specific role has been attributed to the accused/petitioner in the occurrence and investigation of the case has been completed by the prosecution. There is no ocular evidence of the occurrence. Co-accused of the present petitioner who were attributed similar role namely Wajid Hussain and Tehseen Hussain have been released on bail by the learned trial Court vide order dated 09-09-2023 and 31-10-2023 respectively. Another co-accused of the present petitioner namely Aitizaz Hussain son of Ahsan Ali resident of Mohallah Yarkote has been released on bail by this Court vide bail order dated 03-02-2023 and the case of accused/petitioner is at par with the other accused hence, the present petitioner is also entitled for grant of post arrest bail on the principle of consistency.
9. In the circumstances stated above, it is important to observe that bail is not to be withheld as punishment. There is no legal and moral compulsion to keep the people in jail merely on the allegation that they have committed offences punishable with death or life imprisonment unless, reasonable grounds exist to disclose their involvement.
10. For what has been discussed above, this petition is allowed. Consequently the present petitioner/accused is admitted to Nit arrest bail subject to his furnishing bail bonds in the sum of Rs. 500,000/- (five lac only) with two sureties each in the like amount to the satisfaction of learned trial Court. File.