1998 PLP 284 (SCMR)

MUNAWAR AHMAD MIRZA, J.

This petition seeks release of petitioner Muhammad Siddique on bail in case arising from F.I.R. No.266/1996 lodged on the basis of statement given by Muhammad Abbas with Police Station Choochak District Okara under section 302/148/149, P.P.C. Muhammad Akram brother of complainant was murdered near a plot located in Mauza Kohla, Police Station, Choochak. The motive assigned by the prosecution is a dispute between the parties regarding possession of plot. Initially, learned Additional, Sessions Judge, Okara granted pre-arrest bail to the petitioner which was recalled. However, after his arrest; an application was submitted before learned Additional Sessions Judge, Okara praying for release of the petitioner on bail in aforementioned crime. After considering the record of investigation which included supplementary statement of complainant, report of post-mortem and opinions of Investigating Officers, bail was granted to the petitioner by the trial Court vide order dated 12th August, 1996 by making following observations:- , "Noon Muhammad S.I. concluded the investigation and opined that the present petitioner was empty handed at the time of occurrence. According to petitioner's counsel the presence of petitioner near the place of occurrence was natural as he was resident of the place. Thereafter Mdhammad Anwar SI/SHO concluded that although present petitioner was' at the spot but he was empty handed. Thereafter DSP Sadder Circle investigated the case and gave his opinion that the try , petitioner was empty handed and no weapon was in his possession and be did not injure any one and rather he had been raising alarm to save the possession of his property and had been making efforts for avoiding a fight. Petitioner's counsel argued that finding of I.Os are although not binding on court but still weight can be attached to them particularly in view of supplementary statement of the complainant and post-mortem report. Learned counsel for the complainant referring to a case argued that the Court should not be impressed by the fact that the petitioner was an Advocate. Had this been so then the petitioner could have been given relief at pre-arrest bail stage. Right of bail cannot be withheld as of punishment. I am clear in my mind that there are sufficient grounds for further inquiry into the guilt of the petitioner. Petitioner was sent to the judicial lock up as no recovery was deemed necessary from him. Under these circumstances, the petitioner is admitted to bail in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of this Court".

2. Aggrieved from the abovesaid order, complainant Muhammad Abbas filed Crl. Misc. Petition No.3947-B/C/1997 before Lahore High Court praying for cancellation of bail granted to the petitioner. Learned Single Judge in Chambers of said Court considering the arguments advanced on behalf of parties, accepted the petition and directed cancellation of bail granted to the petitioner vide order dated 25th June, 1997 which has been assailed through present petition for leave to appeal.

3. Mr. Abid Hassan Minto, learned counsel appearing for the petitioner challenging validity of impugned order raised following contentions and stressed for release of petitioner by restoration of order passed by Addl. Sessions Judge, Okara: (i) That discretion for granting bail was properly exercised by learned Additional Sessions Judge, Okara, therefore, same could not have been disturbed on the principle enunciated in case Shujaat Hussain v. The State-PLD 1995 SC. 1269 (para 20); (ii) The complainant had given supplementary statement making changes in the averments of complaint, which is suggestive of anxiety to implicate person from the family whom they find influential; (iii) The petitioner is an Advocate being above 60 years of age having 35 years Standing at Bar and law abiding citizen, but has been unjustifiably roped in as reflected from the repeated opinions of the Investigating Officers. Ch. Asghar Ali, ASC opposing the petition argued that petitioner Muhammad Siddique has been duly nominated and particular role ascribed to him. He; therefore, mentioned that High Court was justified in cancelling the bail. It was submitted that principle in the aforequoted judgment could not be attracted because original order of trial Court granting bail to petitioner was defective. Syed Nadeem Saqlain, learned counsel appearing for the State also vehemently opposed the petition on the above grounds.

3. We have carefully considered all aspects of the case. Surprisingly, both the forums below have discussed in detail merits of the case, which is obviously contrary to established norms while deciding question of bail. It is settled principle that the Court seized of the jurisdiction for examining question of bail should make only tentative assessment of the facts without making detailed reference to the merits. On thorough scrutiny of available record, we feel that case of petitioner Muhammad Siddique is clearly distinguishable from that of other co-accused persons who are nominated in the F.I.R. and are attributed direct role. We are conscious of the fact that normally reliance cannot be placed on the opinion of Investigating Officer at bail stage specially when challan has been submitted against accused person. However, its relevancy keeping in view circumstances of each case cannot be completely excluded. Therefore, we are inclined to observe that Trial Court only with regard to case of petitioner had a exercised discretion on reasonable basis. As such, on the dictum laid down in the case of Shujaat Hussain v. The State-PLD 1995 SC. 1269, interference was not called for. We accordingly convert petition into appeal and set aside order of High Court dated 25th June, 1997 by upholding order of Trial Court dated 12th August, 1996. It may be clarified that the observations of the Courts below as regards bail granted to petitioner Muhammad Siddique and even any expression in this order; shall not in any manner affect the merits of the case. Additionally, it will be open for the prosecution to apply for cancellation of bail granted to petitioner if substantial material is brought on record during trial of the case. A.A./M-49/S Bail granted