P L D 1994 Supreme Court 172 (PLP)

SALEEM AKHTAR, J: ‑‑The petitioner seeks leave to appeal against the order passed by the learned Judge in Chanibers of the High Court whereby his bail application was rejected.

2. The petitioner alongwith other accused was accused of attacking the complainant, Nawaz and Mst. Wilayat Bibi, who were duly armed with dang hatchet, carbine and guns. The petitioner is stated to be armed with hatchet. During this incident Basyara who was injured, died in the hospital afterwards Liaqat Ali petitioner is alleged to have caused injury to the deceased. The police during investigation was of the opinion that petitioner was not involves in the act or commission of the offence. However, this contention was not accepted by the learned Additional Sessions Judge who refused to grant bail. The learned Judge in Chambers of the High Court also did not consider it a ground for grant of bail.

3. The learned counsel contended that the two police officers who were investigating the case have found the petitioner innocent. Such finding seems to have been based on oral testimony of certain defence witnesses. On the other hand in the F.I.R. specific role has been assigned to the petitioner and it is supported by the testimony 'of two injured. eye‑witnesses. In these circumstances the learned Judge in Chambers was justified in not relying upon the opinion of the police officers during investigation. The question arises whether the finding of the investigating officer that the accused is innocent or the difference in the investigation of the various agencies about the guilt or innocence of the accused can be made a basis for granting bail. It is well settled that the opinion of the investigating officer is not binding on Court. Such opinion cannot be termed as legal evidence which can be used at any stage of the trial. .However, .considering the. facts and circumstances‑ of the case due weight is given. to such opinion after proper assessment and scrutiny and also examining the basis, the evidence and record upon which such opinion is based.. There are large number of cases of this Court dealing with this aspect and there seems to be consensus that the Court may not accept such opinion or may grant bail on that basis or treat it as a case of two versions for the purpose of granting bail, but where the opinion is based on cogent reliable evidence and the facts and circumstances of the case. permit, bail can . be granted.. In Rehmatullah alias Rehman v. The State and, another (1970 SCMR 299), Rehmatullah and .his co‑accused Karam Elahi were prosecuted for causing death of one Mst. Fatima. The two accused were stated to have ascended to their roof armed with guns from where Karam Elahi fired a shot aiming at Bakhsha, but it hit Mst. Fitima. Rehmatullah was granted bail by the learned Sessions Judge on the ground that his vicarious liability for causing the death of Mst.Fatima was not clear. The High Court taking note of the fact that three successive investigating officers had opined Rehmatullah to be innocent, but as their opinion was not legal evidence and as he was prosecuted under section 301, P.P.C., bail was cancelled because it could not be allowed except in exceptional and special circumstances. In appeal this Court restored the order granting bail holding that the opinions of the investigating officers certainly do not constitute legal evidence, but being adverse to the prosecution they put on an inquiry as to the veracity of the prosecution case. In this case the question of vicarious liability of the appellant in regard to the commonness of his intention with his co‑accused and its further extension to the result that followed, namely, death of Mst. Fatima had to be determined at the trial to see if his guilt under section 301/34, P.P.C. is established as alleged by the prosecution. In Amir Khan v. The State (1970 SCMR 789) out of three police investigating officers, only one maintained the view that the case did not deserve to be challaned. However; the Prosecuting, Inspector of the Crime Branch held a contrary view and wanted the petitioners to be charge‑sheeted and tried. It was held that on these facts subsection (2) of section 497, Cr.P.C. could not be invoked. In Muhammad Ashraf v. The State (1971 SCMR 183) it was observed that the police challan is nothing but the opinion. of the investigating agency and is entirely irrelevant consideration for releasing on bail the three convicts who alongwith the fellow convicts including the appellants had been convicted and sentenced to transportation for life. In Manzoor and 4 others v. The State PLD 1972 SC 81 the High Court had refused bail on the main ground that the police investigation had held them to be guilty. This Court in appeal observed as follows:‑‑‑ "It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an. accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non‑bailable cases is a matter within the discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence:' In Hakim Ali and 3 others v. The State (1979 SCMR 114) bail was sought inter alia on the ground that the investigating officer had shown the petitioners as innocent, but it was subsequently that the D.S.P. ordered them to be treated as accused and therefore it was a case of two versions and it fell within the scope of further inquiry. This plea was 'repelled as misconceived and it was held that merely because the D.S.P. took a different view in the investigation and decided to challan the petitioners, it cannot be said that this is a case is which there are two versions by the prosecution. In Allah Ditta v. Umar Din etc. 1980 SCMR 190 the High Court granted bail as the investigating officers had stated that 11 out of 15 accused were falsely involved. The accused, according to the F.LR., were empty‑handed, but were alleged to have dragged the deceased and given them blows with brickbats. In the medical report there were no signs of dragging or injuries by brickbats. One of the respondents allegedly armed with Khanjar pleaded alibi and four Advocates swore affidavits in his favour in the High Court. The petition for cancellation of bail was dismissed taking into consideration all the facts and circumstances of the case and not merely on the opinion of the investigating officer. In Manzoor alias Bhola and another v. The State 1981 SCMR 530 the petitioners were granted bail by the Additional Sessions Judge, but it was cancelled by the High Court. The deceased had made a statement which was treated to be a dying declaration, but the investigating officer was seemingly of the opinion that they were falsely implicated. While dismissing the petition it was observed that any opinion formed by the investigating officer in this behalf could not be used as an argument for saying that the dying statement was false as against the petitioners. In Saeed Ahmad v. The State (1981 SCMR 565) it was observed that the opinion of the investigating officers cannot be treated as legal evidence and reliance was placed on Rehmatullah and Karam Elahi referred to above. In Ghulam Rasool v. The State and 4 others (1982 SCMR 440) taking into consideration the facts of the case due weight was given to the fact. that Muhammad Ramzan accused had been shown in column No.2 by the investigating officer and petition for cancellation of his bail was dismissed. The same view seems to have been taken in Amir Ali and others v: The State 1984 SCMR 521 in which A.S.P. who carried out the investigation, was of the opinion that the petitioners were not present at the scene of occurrence and further that co‑accused were granted bail. It was held that benefit of doubt arising from the A.S.P's. report must be given to the petitioner even at bail stage. Similar view was also taken in Fazal Haque,v. The State 1984 SCMR 1378. The relevancy of opinion of the investigating agencies came under consideration in Muhammad Afzal v. Nazir Ahmad and others 1984 SCMR 429, in which it was observed that the relevancy to the question of bail of the opinion of the investigating agency in regard to the complicity of an accused person will depend on the soundness of the material upon which it is based. If the investigation brings to light facts which may furnish prima facie a reasonable ground for believing that an accused though named in the F.LR., is not guilty, the opinion of the investigating officer based on such facts will be relevant. Reliance was placed on Rehmatullah, referred to above, Karam Din v. Muhammad Sharif 1975 SCMR 230 and Muhammad Rafiq v. Abul Rehman 1979 SCMR

377. Again in Muhammad Rafiq v. abdul Rehman 1986 SCMR 1978 report of investigating officer was taken into consideration at bail stage though it was not binding on the Court. In Muhammad Abbas v. The State 1987 SCMR 483 the petitioners were accused of committing murder, but the police investigating officer was of the view that they were innocent and although the bail was refused by the learned Sessions Judge, they were released under section 169, Cr.P.C. The complainant filed petition in the Court and warrants for arrest were issued and their bail application was also rejected. The High Court also refused to grant bail. In appeal this Court taking into consideration the fact that the police during investigation had examined several witnesses who had seen the occurrence and also giving due weight to the post?mortem report, the report of the ballistic expert and the recoveries, granted bail. In Muhammad Mumtaz v. The State 1988 SCMR 1452 bail was refused by the High Court, but was granted by this Court taking into consideration that the learned Judge in Chambers of the High Court had commented upon the police diary and substituted his own opinion holding the petitioners not innocent which was contrary to the opinion of the investigating officer and further that the learned Judge was impressed by the fact that several persons had come forward and made statement on oath in support of the complainant although none of them was an eye‑witness of the occurrence. In these circumstances, due weight was given to the fact that the petitioners wertplaced in Column No.2 of the challan. In Inayatul Haq v. Said Muhammad Khan 1988 SCMR 1743 similar question as in this case came up for consideration. The following observation was made:‑‑‑ "Subsection (5) of section 497, Cr.P.C., for instance, provides that "a High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody". But, according to the learned Judge in the High Court, no Court, except the trial Court can act against the opinion of the investigating officer and even the High. Court must surrender its discretion in favour of that of the Investigating Authority. This is not the intendment of the law. The High Court is certainly not denuded of the authority to see and assess whether the material already on the record was sufficient for the investigating officer to come to the conclusion that no reasonable grounds existed for believing that the accused had committed a non‑bailable offence. In? view, there was no bar upon the High Court from evaluating the material on the record to see whether the investigating authority was justified in thinking that the accused was innocent, on the basis of the said material. The learned Judge in the High Court was not, therefore, right in .refusing to go into this aspect of the matter because the material could clearly be examined by it and the opinion of the police officer directing that the accused be placed in Column No.2 did not stand in the way of making such an evaluation." ??????????? Considering the observations made and the rule laid down by the afore stated judgments, it is now well‑settled that the opinion of the investigating officer is not binding upon the Court. Every Court can have its own opinion and may after examining the opinion of the investigating officer, come to a different conclusion. The opinion of the investigating officer holding an accused innocent, cannot be made the only basis for granting bail. Although due weight is given to such opinion, but the Court is empowered to examine the material which has been made basis for forming such an opinion by the investigating officer. If the opinion is based on inadmissible and irrelevant? evidence, it will not carry any weight at all. However, all the attending facts and circumstances of the case are to be taken into consideration while assessing whether the opinion of the investigating officer should be accepted or not. Considering the impugned judgment in the light of these observations and rules, we do not find any illegality or infirmity in it and therefore refuse to grant leave. N.H.Q./L‑66/S Leave refused.