SAJJAD HUSSAIN alias AKHON Versus State

ORDER

ALI BAIG, J .---Through the instant petition filed under section 497, Cr.P.C., the petitioner/accused namely Sajjad Hussain son of Yousuf Ali seeks post arrest bail in case FIR No.199/2011 dated 22-11-2011, registered under sections 324, 302/34, P.P.C. and 6/7 ATA, 1997, at Police Station Cantt. Gilgit.

2. Succinctly prosecution story as disclosed in the FIR is that on the fateful day, i.e., 22-11-2011, the deceased namely Mohammad Tahir and his cousin namely Hafiz Mohammad Riaz were proceeding towards Satellite Town Jutial from City Gilgit on a motor bike bearing registration No.E21616. At about 4:30 p.m., when they reached near Akbar Market Khomer, in the meanwhile some unknown terrorist/ terrorists opened fires on the deceased with fire arms which hit the deceased and his above named cousin. Resultantly, the deceased above named expired on the spot whereas his cousin namely Hafiz Mohammad Riaz sustained grievous injuries. Accordingly, the aforesaid FIR was registered against unknown culprit/culprits at Police Station Cantt. Gilgit.

3. It is pertinent to mention here that earlier the petitioner/accused had filed bail petition in the trial court which was dismissed by the learned judge Anti-Terrorism Court vide bail order dated 04-03-2020, hence this petition.

4. The learned counsel for the petitioner/accused has contended that the petitioner is not nominated in the FIR. The learned counsel for the petitioner/ accused has further contended that co-accused of the present petitioner namely Mohammad Qasim and Shoukat Ali alias Major have been discharged by the police under section 169, Cr.P.C.; hence, rule of consistency applies to the case of the petitioner. The learned counsel for the petitioner/accused has further argued that the instant case was registered on 22.11.2011 and present petitioner was arrested on 06-09-2019 and even he was not declared absconder in this case, hence case of the petitioner requires further inquiry. Concluding his arguments, the learned counsel for the petitioner has argued that there is no piece of evidence on the record of the case against the petitioner except his confessional statement recorded under section 21-H of ATA, 1997, thus petitioner is entitled for concession of bail.

5. Conversely, the learned Deputy Advocate General has vehemently opposed this petition by contending that co-accused of the petitioner have not been discharged under section 169, Cr.P.C. The learned Deputy Advocate General has further argued that weapon of offence has been recovered on the pointation of the petitioner/ accused which corroborates the confessional statement of the petitioner/ accused recorded under section 21-H, ATA, 1997; hence, the petitioner is not entitled for concession of bail.

6. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record as well as bail order passed by the learned trial court.

7. From perusal of bail order dated 04-03-2020 passed by the learned trial court, it appears that the bail petition of the petitioner was dismissed on the sole ground that case is fixed for prosecution evidence and trial court will determine the actual guilt or innocence of accused. In this connection, it is observed that where trial of the case is commenced or in progress and if accused is found entitled for grant of bail, the Court cannot decline such concession on the pretext that case of the petitioner is in progress. The petitioner/accused is not directly charged in the FIR nor any reliable evidence is available on record to establish a prima facie case against the petitioner except statement of the petitioner recorded under section 21-H, ATA, 1997. The instant case was registered on 22-11-2011 but the petitioner was arrested on 06-09-2019, after lapse of mare than 7-1/2 years of the registration of the FIR and even the petitioner was not declared absconder in this case; thus, case of petitioner requires further inquiry under section 497(2), Cr.P.C.

8. Moreover, two co-accused of the petitioner were arrested in the instant case with similar allegations have already been released/discharged by the police under section 169, Cr.P.C, hence, rule of consistency apply to the case of the petitioner.

9. From tentative assessment of material collected by the prosecution during investigation, I am of the considered view that the petitioner has made out a case for grant of bail.

10. For the foregoing reasons and discussion, this petition is allowed. Consequently, the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.500,000/- with two sureties each in the like amount to the satisfaction of the learned trial court. File.

SA/40/GB Bail granted.