EJAZ HUSSAIN Versus State
ORDER
MALIK HAQ NAWAZ, J.--- The petitioner was booked in the offences under sections 302/380/457/34/75, P.P.C. vide FIR No.48/2018 of Police Station Danyore.
2. The petitioner was not nominated in the FIR and was arrested during investigation of the case. After completion of investigation, he was committed to judicial custody to stand trial.
3. The petitioner applied for post arrest bail, which was declined vide judgment/order passed by the learned trial Court vide judgment/ order dated 04.03.2019.
4. The learned counsel for the petitioner submitted that the petitioner was involved in the offences due to mala fidies of the local police without any substantive evidence. The co-accused Fazal Abbas is a habitual criminal and his statement recorded under section 164, Cr.P.C., under law cannot be used against the petitioner. The petitioner was not present in Gilgit during the days of occurrence. The recovery effected from the petitioner is also planted and the same has been effected in violation of section 103, Cr.P.C. The learned counsel relied on 2012 PCr.LJ 1293, 1995 PCr.LJ 1938 and 2000 PCr.LJ 1734.
5. The learned Dy. Advocate General and the counsel for complainant opposed the bail and submitted that although the petitioner is not nominated in the FIR, but there is sufficient incriminating evidence available against the petitioner. During investigation an iron bar was recovered from the petitioner on his pointation and co-accused made an inculpatory statement under section 164, Cr.P.C., fully implicating the petitioner as an active participant in the occurrence. The petitioner took life of an innocent person. The offence entails the punishment of death/life and he is not entitled for concession of bail. They relied on 2005 PCr.LJ 244, 2002 PCr.LJ 1259, 2010 PCr.LJ 1868, 2000 SCMR 1634, 1999 PCr.LJ 9 and 2009 PCr.LJ 1250.
6. Heard in detail and record of the case perused.
7. The petitioner is not nominated in the FIR and he was arrested during investigation of the case. One iron bar was recovered from his possession in presence of independent witnesses, which was allegedly used for commission of the offence. The co-accused Fazal Abbas during investigation confessed his guilt and got recorded an inculpatory statement before a Judicial Magistrate under section 164, Cr.P.C. in which he fully implicated the accused. The plea of alibi was not raised during investigation of the case and the same cannot be considered by this Court at bail stage, without any cogent and reliable proof of the absence of the petitioner on the day of occurrence. The statement of co-accused facing the same trial in the case could be used against the accused as a circumstantial evidence under Article 43 of Qanun-e-Shahadat, 1984. There is sufficient incriminating evidence available against the accused/petitioner, which disentitles him for concession of bail.
8. In the wake of above discussions, the petition in hand is declined accordingly.
9. Bail refused.
SA/46/GB Bail refused.