Vijay Kumar Verma - (1.) PRAYER for bail in this application under Section 439 of the Code of Criminal Procedure (in short 'the Cr. P.C.') has been made on behalf of applicant Nusarat S/o Ali Hasan, who alongwith other accused is facing trial in S.T. No. 169 of 2008, State v. Nusarat and others, arising out of Case Crime No. 129 of 2007, under Section 302, I.P.C. P.S. Dhaulana district Ghaziabad.
(2.) AN F.I.R. was lodged on 6.9.2007 at 2.30 p.m. by ANees Ahamad S/o Gulam Mohammad, at P. S. Dhaulana, district Ghaziabad, where a case under Section 302, I.P.C. was registered at Crime No. 129 of 2007 against Nusarat (applicant herein), Isha, Nagga and Inshaf Ali. The allegations made in the F.I.R. (ANnexure-1), in brief, are that on 6.9.2007 at about 1.00 p.m., the accused Nusarat, Isha, Nagga and Inshaf Ali committed the murder of Sarvar (brother of the complainant) by causing injuries by means of firearms. I have heard arguments at length of Sri S. M. Fazal, advocate appearing for the applicant and A.G.A. for the State. The first and foremost submission made by learned counsel for the applicant was that the co-accused Isha has been granted bail by lower court, vide order dated 20.1.2009, passed in bail application No. 37 of 2009 and hence, on the basis of the principle of parity, the applicant also is entitled to be released on bail, because the role of all the accused persons in the alleged incident was identical and all the accused persons are alleged to have fired on the deceased.
(3.) NEXT submission made by learned counsel was that the complainant Anees Ahamad has been examined as P.W. 1 in S.T. No. 169 of 2008 in the court of Additional Sessions Judge, Hapur (Ghaziabad), but he has not supported the case of prosecution and has turned hostile. For this submission, my attention was drawn towards the copy of statement (Annexure-4) of Anees, which has been recorded in S.T. No. 169 of 2008. It was also submitted by learned counsel that Smt. Raheesa also has been examined in trial court in aforesaid session trial, but since she had seen the incident from great distance, hence her statement does not carry any weight.;