2009 PLP 1952 (YLR)

ALI SAIN DINO METLO, J.--Heard Messrs Asif Ali Abdul Razak Soomro, Advocate for the applicant, Awan Rahmatullah Nadeem, Advocate for the complainant, and Muhammad Akram Shaikh, State Counsel. The latter has no objection to the grant of bail.

2. According to complainant Asadullah, on 22-3-2007, at 0930 hours, near water supply machine of Kashmore town, four persons, namely, Hazoor Bux, his sons Muhammad Ayoob and present applicant Muhammad Maroof, and nephew Daim, out of whom Hazoor Bux and Daim were armed with Kalashnikovs and Muhammad Maroof and Muhammad Ayoob, with T.T. pistols, killed his father Muhammad Siddiq and injured his brother Rahmatullah while he along with his father, brother and cousin Muhammad Ameen were going to Kashmore town. All the four persons had allegedly made fires from their respective weapons upon the deceased and the injured. The matter was reported to police on the-same day at 1100 hours.

3. On the direction of the Regional Police Officer, Sukkur, the matter was investigated by D.S.P. Irshad Ali Shahani, besides SIP Ziyad Ali Noonari. After examining a large number of independent eye-witnesses belonging to Kashmore town, both the officers came to the conclusion that the offence was committed by Muhammad Ayoob only and the complainant party had exaggerated the number of accused by falsely implicating Hazoor Bux, Daim and Muhammad Maroof.

4. At the time of filing charge-sheet on 10-4-2007, applicant Muhammad Maroof was in judicial custody. The Investigating Officer requested the Magistrate to release him, as, on investigation, he had been found innocent.

5. The Magistrate did not release him and sent the case for trial to the Court of Sessions, which issued non-bailable warrants against Hazoor Bux and Daim. They challenged the order of the trial Court in revision and this Court, by order dated 8-10-2007, which was passed with the consent of the Advocate for the complainant, modified the order of the trial Court and granted them bail subject to furnishing surety in the sum of Rs.50,000 and personal bond in the like amount to the trial Court within two weeks thereof.

6. Equally placed persons are to be treated equally. The case of Hazoor Bux, Daim and Muhammad Maroof is identical. According to the complainant party, they had participated in the commission of the crime and had caused injuries to deceased Muhammad Siddiq and injured Rahmatullah by making fires upon them from their respective weapons. However, in the investigation of both the police officers they were found innocent and with the consent of the complainant two of them, namely, Hazoor Bux and Daim were granted bail by this Court. In such circumstances, there can be no justification for opposing or refusing bail to the present applicant.

7. Relying upon the precedent of Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 learned counsel for the complainant contends that ipse dixit of police is not binding upon Court and, therefore, according to him, bail may not be granted to the accused. In this regard, it may be mentioned that the precedent cited by the learned counsel is distinguishable, as it was a case of bail before arrest and the conditions for its grant as laid down in the cases of Muhammad Safdar and others v. The State 1983 SCMR 645 and Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97 had not been fulfilled and the conduct of the Investigating Officer was not aboveboard. It is true that report of a police officer is not binding upon the Court, but at the same time it carries considerable weight and cannot be ignored lightly.

8. Unlike civil cases, criminal cases pass through the process of investigation before coming to the Court. Importance of Investigating Officer's report can be understood from the fact that under the law cognizance is taken on the basis of the report of the Investigating Officer and not on the basis of F.I.R. or statement of a witness under section 161, Cr.P.C. An Investigating Officer has the advantage and first opportunity of making spot inquiry and, therefore, his opinion and the material collected by him cannot be ignored, unless found to be arbitrary.

9. In the present case, the opinion of the two police officers cannot be termed as mere ipse dixit or arbitrary, as the same is based upon statements of a large number of independent eye-witnesses belonging to the town of Kashmore where the incident had taken place. Moreover, on the basis of same material and same opinion two of the accused Hazoor Bux and Daim have already been granted bail with the consent of the Advocate for the complainant.

10. Learned counsel for the complainant, relying upon the precedents of Mst. Irshad Begum v. Muhammad Afzal 1985 SCMR 1691 and Miandad v. The State 1992 SCMR 1418 to the effect that bail may not be cancelled when the case is ripe for trial, also argued that bail may not be granted to the applicant as the case is ripe for trial and it will be difficult to seek its cancellation. In this regard it may be observed that liberty of a person is precious and right to liberty cannot be denied even for a day.

11. In view of the above-mentioned facts and circumstances, where in the investigation of both the Investigating Officers it was found that the offence was committed only by one person, namely, Muhammad Ayoob, who is in custody, and the remaining three Hazoor Bux, Daim and Maroof were not involved in the commission of the crime and such opinion is based upon evidence of a large number of independent eye-witnesses belonging to the place where the incident had taken place and two of the three persons found innocent have already been granted bail by this Court with the consent of the Advocate for the complainant, the applicant is also entitled to the same treatment on the principle of consistency and equal treatment. Accordingly, the applicant is directed to be released on bail on giving two sureties in the sum of Rs.400,000 each and personal bond in the like amount to the trial Court. The applicant shall also deposit his passport with the trial. Court, if he has any. The conditions of furnishing two sureties and of depositing passport are imposed as learned counsel for the complainant expressed his apprehension that on his release from custody the applicant might go to Saudi Arabia. H.B.T./M-127/K Bail granted.