P L D 1976 Peshawar 48 (PLP)

Abdul Akbar, Ghulam Akbar sons of Muhammad Umar Khan of village Torangzai, Tehsil Charsadda were charged in a case under section 302/34, P. P. C. The report of the incident was made on 3-6-1975 at 19 hours. They were allowed bail by the Court of Magistrate Charsadda and the same questioned before the Additional Sessions Judge. Peshawar, who, by his order dated 30-8-75, declined to interfere with the discretion exercised by the learned Magistrate. This application for cancellation of bail in this Court is by Ruhullah son of Faqir Muhammad of the same village inter alia on the grounds that the Courts below erred in law in allowing bail to the respondents on the basis of alibi which is not proved (according to him); that the Investigating Officer stepped out of his legal duty to give opinion with regard to the innocence of the respondents. As such this fact being taken as an additional grounds for release of the respondents on bail is not correct in law.

2. The respondents were apprehended on 23-6-75 and as a consequence to the plea of the accused Abdul Akbar that he was at Naahia Gali from 1-6.75 to 5-6-75 in Lalazar Hotel, the Investigating Officer examined the Manager of the Said Hotel as also the register maintained by him in this regard and found that the respondent in fact stayed in that hotel for the above said period.

3. In support of his plea, Ghulam Akbar produced a chit dated 1-6-75 issued to him by Doctor Muhammad Sharif, a medical practitioner at Lyallpur alongwith X-Ray report by doctor Ch. Farooq Chima on 2-6-75 as also the result of E. C. G. by the same doctor dated 3-6-75. In addition to this, the pathology tests were shown as conducted bearing the date 9-6-75. The Investigating Officer examined the above-mentioned doctors and thereafter formed his opinion with regard to the respondents as innocent.

4. The grounds which were found sufficient by the Courts below are not exceptionable, for, they are fully covered by subsection (2) of section 497, Cr. P. C. The words:- "If it appears . . . . . at any stage of the investigation . . . . . that there are no reasonable grounds for believing; that the accused has committed . . . . . but that there are sufficient grounds for further inquiry into his guilt, the accused" shall . . . . . be released on bail ....:' are significant to note, The section does not exclude the importance of investigation on which the Investigating Officer may have formed his opinion with regard to the guilt or innocence of an accused person. Reliance is place on Muhammad Yaqub v. Iltofur Rahman and another (P L D 1974 S C 83). The following paragraph in the cited case amply shows the distinction:- "We have no intention of recording as to the truth or otherwise of the plea of alibi raised on behalf of the respondent Iltafur Rehman, as that is the function of the trial Court. All that we are called upon to examine at this stage is whether this was a case where there were, or not reasonable grounds for believing that the respondent was guilty of an offence punishable with death or transportation for life. We have already alluded to the allegations contained in the dying statement of Muhammad Khalid, according to which the respondent was not only present at the spot, but he was armed with a gun and actually killed Islamuddin by firing at him. This allegation in the F. I. R. is sought to be corroborated by the prosecution by the matching of the crime empty with the licenced gun produced by Iltafur Rehman on the very next day when be was arrested in connection with this case. There is also the further fact that the plea of alibi was not raised by Altafur Rehman at the earliest opportunity and that it was left to his brother Habibur Rehman to raise this plea nearly five months later. In these circumstances, it would need an elaborate sifting of the evidence to come to the conclusion that the prosecution allegations were not true and stood negatived by the evidence of alibi produced by or on behalf of Iltafur Rehman at a late stage during the investigation of the case. It is well settled that such a sifting is not to be under taken for the purpose of grant of bail as that is likely to pre-empt the duties and functions of the trial Court, and to prejudice the prosecution or the defence . . . . . ." In the light of the material available on the record we are of the view that the learned Judge in the High Court was clearly in error in recording a finding at this stage as to the credibility of the evidence of alibi. We also find that, in any case, the finding is not based on a consideration of the other relevant factors as pointed out by the learned counsel for the complainant. In these circumstances, there is no escape from the conclusion that this was not at all a case where it could be said that there were no grounds for believing that the respondent was guilty of an offence punishable with death or transportation for life." The view taken by the Courts below, which I endorse is fully supported in Rehmat Ullah alias Rehman v. The State (1970 S C M R 299) in the following terms:- ". . . . The opinions of the Investigating Officers certainly do not constitute legal evidence, but being adverse to the prosecution, they put one on an inquiry as to the veracity of the prosecution case. The question of the vicarious liability of the appellant in regard to the commonness of his intention with his co-accused for firing at Bakhsha and its further extension to the result that followed, namely, the death of Mst. Fatima, will have to be determined at the trial to see if his guilt under section 302/34, P. P. C. is established as alleged by the prosecution." The learned counsel for the State supports the impugned order.

5. The result is that the petition for cancellation is dismissed. S. Q. Petition dismissed.