1977 P Cr (PLP)

Learned counsel for the petitioner has placed reliance on Gulzar Hassan Shah v. Ghulam Murtaza (P L D 1970 S C 335) to rule that the High Court has powers in proper cases under section 561-A, Cr. P. C. to recall, reverse an order made under section 448, Cr. B. C. In the present case, the name of the learned counsel for the petitioner appeared in the daily cause list in such a manner that the learned counsel or his clerk may have made mistake in reading the name appropriately. In the circumstances, allow the petitioner to argue the case again.

2. I have already given reasons in my order, dated 12-7-77 for dismissing the bail application of the petitioner; these reasons may be deemed as part of this order.

3. There is a background of enmity between the complainant sad the accused persons, and this unfortunate young lad was, in a very cruel and gruesome manner, made a victim without any fault of his. In causing the death of the lad, Muhammad Hayat, in manner too foul, the petitioner is; alleged to be prima donna

4. Learned counsel contends (a) that the Investigating Officer has found that in fact the murder has been committed only by Karamat accused, and the other breathers have been involved out of sheer enmity (b) that for purposes of grant of bail, the opinion of the investigating Agency is of paramount importance, and. if any Investigating Officer has found, even the principal accused person, to be innocent, a that account, he is entitled to the grant of bail.

5. Muhammad Sadiq, A. S. I. Police Station Saddar, Kasur, is present He bas stated that the Investigating Agencies namely, local police and C. I. A., have found the petitioner to be innocent, but in the challan that has been filed in the Court, the name of the petitioner has been placed in column No. 3.

6. Learned counsel for the petitioner has relied on the following judgments for the proposition that opinion of the Investigating Officer is final in matters of grant of bail to an accused person. In c, so Rahmat Ullah v. State and others (1970 S C M R 299) Rahmat Ullah, the petitioner was granted bail by the learned Sessions Judge on the ground that his vicarious liability for causing death of Mst. Fatima was not clear. The main crime had been attributed to Karam Elahi. Thereafter an application for cancellation of bail was moved before the High Court, which was accepted by the learned Single Judge. In appeal before the Supreme Court it was held that the case of Rahmat Ullah was of a nature that required further, investigation into the matter and therefore his case falls within the ambit of section 497(2), Cr. P. C. In determining the question of vicarious liability of an, accused person with regard to commonness of his intention with the real accused, the opinion of the Investigating Officer may be a factor that may set an enquiry into the veracity of the prosecution case. In my opinion the bail by the Supreme Court was granted on the merits of the case, and the reference to the opinion of the Investigating Officer was only en passer. The study of the case has not given me the impression that, merits of the case notwithstanding, and on the opinion of the investigating Officer, simpliciter, the bail was granted. The maximum extension of the ratio decide of the above case can only be with regard to an accused person being vicariously held liable for the commission of the offence.

7. In the case of Amir v. State (P L D 1972 S C 277) the petitioner was one of the accused in a murder case and there ways also a cross-case against them complainant for the murder of Yasin of the petitioner's party. The petitioner in this case, according to the witness, had fired at Jan Muhammad. After the latter had fired and killed Yasin, and therefore, the petitioner had raised plea of self-defence. The eye-witnesses had also made similar statements. Under these circumstances the Supreme Court held that right of self-defence was available to him. The case was remanded to the High Court to consider the whole data available before giving the decision on the question of bail. This case is of no. Assistance to the learned counsel. g. The facts of another case Muhammad Hayat v. State (1974 P Cr. L J 450) were that the co-accused of the petitioner (Alt Khan) fired the first shot that hit the deceased on the back of his head. Thereafter all others also fired. Therefore, the petitioner Muhammad Hayat may be one of those who also fired, but it is not on the record whether his fire hit the deceased or not. However, the police investigation found Muhammad Hayat to be Innocent. In my opinion, this case lays down the rule that if an accuses; person has not been alleged a principal role in the commission of murder, the opinion of Investigating Officer may be relevant for purposes of grant or refusal of bail.

9. In Muhammad Aslam v. State (1974 P Cr. L J Note 136 at p. 85) in the F. T. R. the allegation against the petitioner was that he fired a fatal shot at the deceased. The learned Judge found that the rifle by which the petitioner is alleged to have fired belonged to his brother, and was in the Arms shop three days before the occurrence, and it was sent straight from the shop to the Forensic Science Laboratory arid the crime empty was not found to have been fired from the rifle. It was further held that the account given in the F. I. R. was inconsistent with the finding of the Investigating Officer. The ratio of the case is based upon collective effect of the circumstances of the case, and it cannot be said that the learned Judge has bawd his decision on the opinion of the Investigating Officer simpliciter.

10. Ghulam Haider v. State (1970 P Cr. L J 640) is a case of an offence under section 307 read with section 34, P. P. C. What role had been assigned to the petitioner in the commission of the offence has not been described in the judgment. However the learned Judge has laid down the ratio that if the police investigation reveals innocence of an accused person, the case fell within the ambit of section 497(2), Cr. P. C. and the grant of bail in those circumstances became mandatory. Reading of the language of subsection (2) reveals that satisfaction based upon the facts of each case has not to be exclusive of the police officers alone. The Court has also to be satisfied about the innocence of the petitioner from perusal of the material placed on the record, and the Court his a right to form its own opinion especially do cases punishable under section 302 and in the case of a person who to alleged to be the principal accused in the material which is placed on the record. There is no rule of law that lays down that the opinion of investigating Officer will override the opinion of the Judge arrived at after considering all the facts and circumstances of the case. Though the police officer has been authorised to act independently On the basis of his finding, but such an opinion or action, is always subject to judicial scrutiny of Court of law. The Court may respect the opinion of the Investigating Officer, but can never be bound by it. Judicial function of determination of facts is the exclusive privilege of the Court of law, even at bail stage. Therefore, whether a case is fit for grant of bail or not, is a matter the has to be decided by the Court, and in arriving at that decision, tin Court, Inter alla, also may take into consideration the opinion of tae Investigating Officer and the facts found by him. A primary doubt mint arise in the mind of the Judge, and he must feel the need of further enquiry in the matter before it can be said that the case falls within the ambit of section 497(2), Cr. P. C.

11. In Allah Bux and another v. State (1971 P Cr. L J 1051) the petitioner had been attributed direct role of murdering the deceased. However, the investigating Officer found the petitioners to be innocent. The petitioners were granted bail on that opinion. With great respect. I do not find myself in agreement with the decision given in this case. In fact, it was a short judgment and there is no discussion as to the reasons, why the opinion of the investigating Officer must override all other considerations germane to the prima facie determination Qf guilt or innocence. The Court will look bit the material ors that an investigating officer formed his opinion, and prima facie, data it quoted.

12. The facts as narrated in the F. I. R. have already been reproduced above. The challan has been presented in the Court. The Officer present in the Court has shown me the challan, which is supported by want prosecution witnesses. Amanat Ali is the complainant. lie is father of the boy. He has supported the story in the F.

1. It. He is the complainant and is the main stay of the case. Iftikhar Ali (P. W. 2.) is a formal witness, Muhammad Shafi (P. W. 3) is also a formal witness, Khushi Muhammad (P. W. 4) is also a recovery witness, Muhammad Yaqoob (P. W. 5) is only a recovery witness; Zafar lqbal (P. W. 6) is tie doctor, Muhammad Aslam A. S. I. (P. W. 7), recorded the F.

1. R. Muhammad Ashraf Constable (P. W. 8) is a formal witness. and Mst Beda (P W. 9) the young sister of the deceased, is an eye-witness; Barkat (P. W. 10) is a formal witness Salamat Ali (P. W. 11) is a formal witness, Muhammad Nazir, S. I3. 0. (P. W. 12). Out of the witnesses mentioned in the challan, there are only two material witnesses i.e. the complainant and his minor daughter.

13. Learned counsel contends that there is background of enmity between the parties. He also contends that there has not been any recovery from the petitioner. The innocence of the petitioner is based on the statements of the following persons. Abdul Ghafoor claims to the eye-witness and said that only Karamat had committed the murder. Akbar, Din Muhammad, Allah Din, Rahmat, Imam Syed Abdul Ghafoor, stated that the complainant himself stated to them that only Karamat had committed the murder, arid that he had wrongly involved the otters. Apart from the above witnesses, a large number of persons also stated about the innocence of the petitioner. The police officer present in Court has said that those persons who exculpate the petitioner, their statements have not been recorded under, section 161, Cr. P. C. It is only in the police diary that their statements have been recorded. Notwithstanding the procedural hurdle, from the study of the police diary, I find that there has been extensive reporting of the statements of the above witnesses. The above witnesses do exculpate the petitioners. All these factors have to be taken into consideration while determining the question of grant or refusal of bail to the petitioner.

14. The above Officer has further pointed out that the C. I. A. police have arrived at the above circumstances, but the investigation of the local police is different, and the local police in their investigation have found all the four accused persons guilty. The police officer hag slat that according to the investigation by Nazir Ahmad, S. I. police station Saddar Kasur, all the accused mentioned in the F. I. R. are guilty. If, appears from the perusal of the record that the investigation has been conduct fed only by one Agency and that Agency has found the petitioner innocent, but the other police officer has given his final opinion without investigation at the time of filing of the challan.

15. Learned counsel further informs that the co-accused Noor Ahmad and Niamat have been allowed bail by the learned Sessions Judge.

16. Taking into consideration all the above circumstances of the case in my opinion. The case falls within the ambit of section 497(?), Cr. P. C. grant bail to the accused in the sum of Rs. 20,000 with two sureties, in the' like amount, to the satisfaction of A. C., Kasur. Petition allowed.