1990 P Cr (PLP)

S. 497

Penal Code (XLV of 1860), S.302/307/326/148/149

Bail, grant of-- Subsequent investigation made by Deputy Superintendent of Police .found accused innocent

Witnesses on whose evidence Deputy Superintendent of Police based his finding had not appeared before earlier Investigating Officers-- No weapon of offence was recovered from accused

Fixation of case should afford no ground for refusing bail, if accused is otherwise entitled to it

Accused was allowed bail in circumstances. Ghaus Muhammad Chaudhry for Petitioner Mian Ghulam Oadir Sukhaira for the State. Complainant's counsel present Muhammad Rafique, petitioner, alongwith his four sons, Muhammad Naeem, Iftikhar, Sarfraz and Farrukh Aftab, is accused of offences against sections 302, 307 etc. of the P.P.C. The incident occurred at 7-30 a.m. on 8-8-1987 and was reported to the police at 11-30 a.m. on the same day by Muhammad Ismail, injured P.W. The prosecution case is that some five or six months before the incident, Iftikhar accused had tried to commit Zina with Mst. Seema alias Baggu, dauglitcr of Muhammad Boota; Iftikhar was caught and he alongwith his father, Rafiquc and brother Muhammad Naeem, was taken to the Chak and given shoe beating. It was to avenge that insult that the accused persons, Naeem and Rafque, arnicd with guns, lftikhar with a Chhuri, Sarfraz with a revolver and Farrukh Aftah with a pistol, attacked the complainant party. Muhammad Naeem fired at the complainant hitting him on his leg. Muhammad Rafque petitioner fired hitting the deceased. Iftikhar accused gave Chhuri blows to the deceased. The other two accused persons had kept on firing but nobody was hit by their shots. The two personss, namely, Zulfiqar and Mukhtar, were injured by the fire shots.

2. It may be mentioned here that Sarfraz and Farrukh Aftab accused persons were allowed bail by my order, dated 28-3-1988.

3. It is stated that the case was investigated by the S.H.O. and then by the Ilaqa D.S.P. and on the basis of their findings that the petitioner had participated in the occurrence, the petitioner was challaned and the challan was sent to Court in September 1987. The investigation was then entrusted to the D.S.P. Headquarters. He examined a number of witnesses and came to the conclusion that the petitioner had not participated in the offence and that he was innocent of the offence. The weapon of offence was not recovered from him. Relying upon the D.S.P. 's finding, it is maintained that the petitioner is entitled to bail on the A ground that there are no reasonable grounds for believing that he is guilty of a non-cognisable offence. Learned counsel for the complainant and learned counsel appearing for the State oppose the application; according to them, in view of the findings of the earlier Investigating Officers, the finding of the D.S.P., Headquarters should carry no weight. It appears, however, that the witnesses, on whose evidence the D.S.P. Headquarters had based his finding, had not appeared g before the earlier Investigating Officers. It was then said that the next date of hearing is 15 5-1989 and the grant of bail at this stage would prejudice the prosecution case. I am unable to agree that if the petitioner is otherwise entitled to bail, the fixing of the case should afford a ground for refusing it; nor do 1 think C that any question of prejudice arises. 1, therefore, allow the petitioner to be released on bail on his furnishing bond in the sum of Rs.30,000 (Rupees thirty thousand only) with two sureties each in the like amount to the satisfaction of the trial Court. N.H.Q./M-1852/L Bail granted.