1989 PLP 4368 (MLD)

Nazir Ahmad Mirza for State. Khan Zaman Khan petitioner has applied for bail after arrest under sections 302/307/34 P.P.C. arising out of F.I.R No.190 dated 12‑9‑1988 registered at Police Station Moehh.

2. According to the F.I.R. it is alleged that on 13‑9‑1988 at about 8.30 A.M the complainant and his companion Khalas Khan deceased and Gul Khan were ploughing in their land. The petitioner, armed with .12 bore gun, his brother Gul Khan armed with rifle and his father Saadullah Khan armed with .12 bore gun came there. They raised Lalkara to the effect that they would teach lesson to the complainant party. The petitioner is alleged to have fired a shot, which hit on the chest of the deceased Khalas Khan, his co‑accused Gul Khan and Saadullah Khan also fired shots ineffectively on the complainant party.

3. Learned counsel for the petitioner submitted that in three different investigations the `petitioner although named in the F.I.R. was found innocent as according to the investigating officers it was Saadullah Khan whose shot caused death of the deceased whereas the petitioner only fired ineffective shot hence he was challaned under section 307, P.P.C. and not section 302, P.P.C. and is entitled to the grant of bail as a matter of right.

4. Learned counsel for the State has adopted similar arguments which were addressed before the learned Sessions Judge that the F.I.R. was lodged promptly and the petitioner had a direct motive to cause death of the deceased and that the conclusion arrived at by the police in three different investigations is not based on valid and cogent reasons.

5. I have myself examined the police file carefully and have taken into consideration the respective submissions of the learned counsel for the parties and find that the police officers without any solid evidence came to the conclusion, that the petitioner although named in the F.I.R. yet he is not the actual culprit, but it was Saadullah Khan who caused the death of the deceased.

6. A perusal of the police file reveals that the eye‑witnesses mentioned in the F.I.R. have fully supported the prosecution version as contained in the F.I.R. None of the eye‑witnesses has exonerated the petitioner from the charge of j` murder.

7. The opinion of the police (Investigating Officers) is not binding on this Court, it cannot be taken into consideration while accepting or rejecting the bail. In the present case, I find that three Investigating Officers, without any tenable evidence held that the petitioner is not guilty of the offence under section 302 P.P.C, instead he is liable under section 307 P.P.C. for ineffective firing. It is apparent from the police file that the complainant party sticks to their version as contained in the F.I.R. but the police on the verbal assertions of some persons (other than the eye‑witnesses) erroneously exonerated the petitioner from the charge of murder. In such circumstances it cannot be said that the case of the petitioner falls within the ambit of section 497(2), Cr.P.C. The petitioner is involved in a murder case, the specific part has been attributed to him which is supported by the eye witnesses. The case against the petitioner falls within the prohibitory clause. He is not entitled to bail. His bail application is dismissed accordingly S.A./K‑206/L Bail refused.