1996 PLP 638 (MLD)

Date of hearing: 18th December, 1994. Petitioners through this petition filed under section 497, Cr.P.C. seek their post arrest bail in case F.I.R. No.381 of 1993, dated 4-8-1993, under section 302/34, P.P.C. registered at Police Station Tandianwala, Faisalabad, at the instance of Mirza son of Malka, for an occurrence which took place on the same day at about 8-00 a.m.

2. Brief facts of the case are that on 4-8-1993, at about 8-00 a.m. Faiz alias Banda, Hassan Ali armed with guns and Chugatta armed with revolver took their positions and when Muhammad Zaman reached near them, Chugatta raised a Lalkara and started firing with his revolver, Hassan Ali having his gun ran after and fired at him which missed. Faiz fired a shot with his gun which hit in the chest of the deceased who succumbed to injuries at the spot. The accused persons ran away, thereafter, from the place of occurrence.

3. The post arrest bail petition was moved by the petitioners in the Court of Sessions Judge Faisalabad and the same was dismissed vide order, dated 3-11-1994 passed by the learned Additional Sessions Judge Faisalabad.

4. Learned counsel for the petitioner contends that the petitioners are innocent and they have falsely been involved in the instant case. Further argues that the investigation was conducted primarily by the local police and thereafter the same was transferred at the instance of the accused persons and was entrusted to D.S.P. Sammundari Circle Faisalabad, who found the petitioners innocent. The investigation was once again got transferred by the complainant and the same was entrusted to the Range Crime wherein the previous investigation was verified. The S.H.O. of the said police was directed to place the names of the petitioners in column No.2 of the challan. Maintains that the successive investigations have revealed that the petitioners were not present at the place of occurrence. Learned counsel relied on Dr. Muhammad Aslam v. The State 1993 SCMR 2288, Nasir Ali and others v. The State 1994 PCr.LJ 1222. Mushtaq Ahmed v. The State 1994 PCr.LJ 1515 and Abdul Rehman v. The State 1994 PCr.LJ 1020.

5. Learned counsel for the State could not controvert the contentions raised by the learned counsel for the petitioners.

6. Chugatta and Hassan petitioners were arrested on 25-8-1993 and 5-1-1994 respectively. The petitioners have been found innocent during the investigation, by gazetted police officers and their names have been mentioned in column No.2 of the report prepared under section 173, Cr.P.C. A perusal of the contents of the F.I.R. reveals that all the three accused persons are involved in this case but the result of successive investigations indicate that they are innocent. Obviously there is a conflict between the statement of the P.Ws. and the finding of the Investigating Officer. To my mind this matter can only be resolved after recording the evidence by the trial Court. The case of the petitioners squarely falls under subsection (2) of section 497, Cr.P.C. and prima facie is a case of further inquiry. Without commenting upon the case so that it may net prejudice the case of either party, I am inclined to admit the petitioners to bail as no justiciable purpose shall be served by keeping them in judicial lock up. The bail cannot be with-held for the reasons that the challan has been submitted and the trial has commenced. For what has been discussed above, I allow the petitioners to bail provided they furnish bail bonds sum of Rs.50,000 with two sureties each to the satisfaction of A:C./Duty Magistrate Tandlianwala. H.B.T./C-52/L Bail granted.