1998 P Cr (PLP)

S. 497

Penal Code (XLV of 1860), S.302/148/149

Bail

Police opinion

Police opinion may be relevant to decide the bail application but the same is not binding on the Court. Mian Muzaffar Ahmad for Petitioners Ch. Riaz Hussain for the State. M. Iqbal Bhatti for the Complainant. The petitioners are required as accused persons in case F.I.R. No.249 of 1995, dated 15-11-1995, under section 302/148/149, P.P.C., registered with Police Station Batapur, Lahore on the statement of Shafqat Ali complainant.

2. Earlier a bail application (Criminal Miscellaneous No.2434/B of 1996) was moved in this Court by five accused persons namely Niabat Ali, Rafaqat Ali, Tanvir Ahmad, Muhammad Asif and Muhammad Fayyaz. The petitioners in the present application figured at Serial Nos.2 and 4 of the previous application. Said application was heard and disposed of by my learned brother Khalid Paul Khawaja; J. (as his Lordship then was) on 19-11-1996. A detailed order was passed considering almost all the aspects of the case. It was thereafter, observed that the petitioners were not entitled to the concession of bail. Their application was, therefore, dismissed.

3. The petitioners of course can move a fresh application but the grounds already urged and considered previously cannot be reiterated. Also any ground which is available to the petitioners, if not urged would mean that the same was not pressed and no fresh application can be moved on the ground available to the petitioners on the previous occasion. Learned counsel when confronted with the situation, submitted that after disposal of the previous application, a new ground accrued to the petitioners, therefore, the present application was repeated. According to the learned counsel, fresh investigation was taken up by Major Mubashir, S.P. Cantt. Lahore and he came to the conclusion that there was A cross-firing from both the parties and as such it could not be determined as to which of the accused person was responsible for the murder. I called for the, police file and examined the same. It is true that Major Mubashir conducted the investigation and he has also appeared before my learned brother Khalid Paul Khawaja, J. (as his Lordship then was) on 3-11-1996. He undertook to definitely conclude the investigation within a week's time. The case was adjourned to 10-11-1996. On 10-11-1996 it was observed on the statement of Rehmat Ali, S.-I. that, investigation had been concluded and the petitioners therein (which include the present petitioners as well) had been found guilty. Since the Court time was over, the case was adjourned to 19-11-1996. On that date a detailed order was passed by his Lordship. In para. 4 my learned brother after discussing the facts and circumstances of the case quite elaborately, came to the conclusion that the petitioners were not entitled to concession of bail Para, 4 is reproduced:-- "All the petitioners are named in the F.I.R. They had actively participated in the occurrence and had resorted to indiscriminate firing as a result of which Babar Butt deceased lost his life. Six crime empties of .12 bore matched with the gun recovered from Rafaquat Ali accused. Five crime empties of the same bore matched with the gun recovered from Tanvir Ahmad accused. Four crime empties matched with .8 m.m. rifle recovered from Muhammad Asif while six out of 19 empties of .222 bore matched with the rifle recovered from Muhammad Fayyaz. In this way the ocular evidence also finds corroboration from independent source. The version of the accused to the effect that the complainant party was the aggressor has been disbelieved by the Investigating Agency. From the material collected during the investigation it is shown that the petitioners alongwith their accused were sitting in ambush and had launched a murderous assault on the complainant party which resulted in the death of Babar Butt deceased. Since the petitioners had actively participated in the occurrence, I am of the view that they are not entitled to the concession of bail in this murder case. Their bail application is dismissed."

4. Learned counsel for the petitioner has tried to argue that the learned Judge did not correctly perceive or appreciate the record available at the time. According to him the Investigating Officer had observed that it could not be determined conclusively as to which of the accused had committed the murder determined the observation by the learned Judge that the police did not arrive at a definite conclusion is tantamount to misconceiving the record. I am unable to uphold the contention for the reason that if the learned counsel found that the order was not proper, then he would have assailed the same before the higher forum i.e. Honourable Supreme Court. The contention raised has no force also for the reason because my learned brother had expressed an independent and definite opinion after going through the entire police record. Even if for the sake of argument it is accepted that an observation was made by the Investigating Officer that it could not be determined as to which of the accused is responsible, the same cannot hold the field because my learned brother has expressed an opinion which is not in line with the Investigating Officer. It is evident from perusal of para. 4 (supra) of the order that the observation has been made after assessing the relevant facts and circumstances. The police opinion may be relevant to decide the bail application but the same cannot be held to be binding the Court.

5. The present application moved for the reason that fresh ground by 'Way of opinion expressed by Major Mubashir has become available to the petitioners is wholly misconceived. The perusal of Zimnis Nos.35 and 36 recorded by Major Mubashir on the police file indicates that the opinion had been expressed on 7-11-1996 whereas the order dismissing the previous application was passed on 19-11-1996. It means that opinion of the Investigating Officer was available on the file and had in fact been considered. Therefore, second application (the present application) is not even maintainable. The petitioners are not entitled to concession of bail. The application is dismissed. N.H.Q./R-42/L ?????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.