2005 PLP 683 (YLR)

Abdul Majid Chishti for the State. Learned counsel for the petitioner in support of this petition submits that the petitioner is a law abiding citizen; that he has falsely been implicated in this case due to enmity; that he was also injured by Bashir Ahmad complainant and that he has placed on record Annexure‑C (in the connected Crl. Revision No.722 of 2004) that in order to blackmail the petitioner, this case has been registered against him; that if the petitioner had to take revenge then the shots should have been fired at Bashir Ahmad (complainant) and not at the deceased; that no recovery was effected from the petitioner; that he is a milk seller at Islamabad; that he was arrested from Islamabad; that he remained present at Islamabad but the police, with mala fide intention, has declared him absconder; that a lot of evidence, in support of plea of alibi, has come on record; that during the investigation conducted by Inspector, petitioner was found innocent which was verified by the D.S.P. who also came to the conclusion that the petitioner was not present at the spot and his plea of alibi was accepted. Learned counsel for the petitioner further submits that the petitioner has been placed in Column No.2 of the challan. Following judgments have been relied in support of the above submissions:‑‑ (i) 1993 SCMR 2288; (ii) 1985 SCMR 195; (iii) PLD 1989 SC 585 (e); (iv) 1996 SCMR 931(b); (v) 1992 SCMR 1857; (vi) 1984 SCMR 429; (vii) 1984 SCMR 521; (viii) 1999 SCMR 1271 (f); (ix) 1981 SCMR 795.

2. On the other hand, learned counsel for the complainant submits that the petitioner is named in the F.I.R.; that a specific role is attributed to him; that he is the main accused; that the F.I.R. was lodged promptly; that it is a broad‑day‑light occurrence (i.e. took place at 5‑00 p.m. and report was lodged at 6‑40 p.m. on the same day); that the challan has been submitted and that the offence alleged falls within the prohibitory clause of section 497 (1), Cr.P.C. and that in the afore‑referred circumstances petitioner is not entitled to the concession of bail.

3. Ch. Muhammad Hanif Khatana, the learned Additional Advocate General, having gone through the police file and the statements of witnesses of both sides, submits that he is of the opinion that the case of the petitioner is one of further inquiry.

4. I have heard learned counsel for the parties at length. In the instant case allegation against the petitioner is that he allegedly fired a shot on the person of the deceased. A lot of persons appeared during the course of investigation in support of plea of alibi of the present petitioner to prove his innocence. Initially, case was investigated by the Inspector who reached to the conclusion that the petitioner was not present at the place of occurrence. Thereafter, the investigation was verified by the D.S.P. who also came to the same conclusion. Police prepared discharge report, submitted the same before the learned Magistrate but he did not agree with it. Challan was submitted before the learned Additional Sessions Judge having placed the petitioner in Column No.2 in which he has been summoned. Petitioner filed Crl. Revision No.722 of 2004 against the summoning order dated 9‑7‑2004 passed by the learned Additional Sessions Judge, Jaranwala which was fixed before me today, the same has been allowed, the order of summoning the petitioner has been set aside with a direction to the learned Additional Sessions Judge to pass a detailed order giving reasoning for summoning the petitioner and the material on which he had relied on.

5. It is well known that two types of accused persons are placed in Column No.2 of the challan i.e. (i) who are not challaned and were found to be innocent and (ii) the Proclaimed Offenders are shown by the S. H. O. with "red ink". Petitioner, according to the report submitted under section 173, Cr.P.C. has been placed in Column No.2. Judgment of the apex Court reported in Muhammad Sadiq v. Sadiq and others PLD 1985 Supreme Court 182 shows that the accused‑petitioner placed in column No.2 of the challan, as far as discretionary relief of bail is concerned, that should be granted. It was held by the august Supreme Court that if the Investigating Officer came to the conclusion that the case of the accused was of further inquiry, he shall be granted bail as a matter of right.

6. Even the learned Additional Advocate General has submitted that the case of the petitioner is of further inquiry falling under subsection (2) of section 497, Cr.P.C. I have also come to the conclusion that there is sufficient material in the shape of evidence of alibi on the police file due to which police came to the conclusion that the petitioner was not present at the spot even during investigation conducted by Inspector, petitioner was found innocent which was verified by the D.S.P. who also came to the conclusion that the petitioner was not present at the spot and his plea of alibi was accepted. He has satisfactorily explained his abscondence to establish that in reality it did not amount to abscondence. He was placed in Column No. 2 of the Challan. The petitioner's case is covered by subsection (i) of section 497, Cr.P.C. which requires further probe into the guilt discussion is that this petition is allowed and the petitioner shall be released on bail provided he furnishes bail bonds in the sum of Rs.1,00,000 (rupees one lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./M‑728/L Bail granted.