1997 PLP 1530 (MLD)

(c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 497(2)‑‑‑Bail‑‑‑Further inquiry‑‑‑Police opinion‑‑‑Opinion of the police if based on sound material brings the case of the accused person within the ambit of S.497(2), Cr.P.C. 1984 SCMR 429 and 1984 SCMR 521 ref. Mazhar Ali Bhatti for Petitioner. Zafar Mahmood Anjum for the State. Muhammad Iqbal petitioner has sought bail after arrest in case F.I.R. No.256/95 dated 23‑8‑1995 under section 364/34/302, P.P.C. of P.S. Luddhan, District Vehari registered on the complaint of Akhtar Hussain against the petitioner and two others for the abduction of his brother Safdar Hussain on 21‑8‑1995 from his house situated in the area of Chah Baluchan situate at a distance of 12 miles from the P.S. It is stated in the F.I.R. that Muhammad Iqbal petitioner and Ghulam Ali co‑accused took away Safdar Hussain in car No.8341‑RIG driven by Muhammad Iqbal petitioner in the presence of Haider Hussain, Iqbal Hussain and the complainant. Safdar Hussain did not return to the house. Thereupon complainant alongwith Shabbir Shah and Lal Shah P.Ws. started search of the deceased and came to know that Muhammad Iqbal and Ghulam Ali co‑accused took Safdar Hussain to the house of Muhammad Yasin. They contacted him who did not give them satisfactory reply. According to the complainant, Safdar Hussain had friendly relations with Ghulam Ali co‑accused who was on visiting terms at his house. He cast suspicion that on account of illicit liaison of Safdar Hussain with Mst. Bashiran wife of Ghulam Ali accused, either had committed murder of Safdar Hussain or had concealed in order to murder him alongwith, his co‑accused Muhammad Iqbal and Muhammad Yasin. Initially the case was registered under section 364/34, P.P.C. and during the investigation on the recovery of dead body, offence under section 302, P.P.C. was added. Petitioner was arrested and his plea for the grant of bail was rejected by the learned Additional Sessions Judge. Hence this petition.

2. Learned Counsel for the petitioner argued that none has seen the petitioner committing the murder of Safdar Hussain deceased; that the petitioner has no motive whatsoever to commit the present occurrence; that the dead body was not recovered on the exclusive pointation of the petitioner; that the petitioner has been found innocent during the investigation; that the petitioner was a taxi driver and did not know about the intention of his co‑accused to commit a crime.

3. Learned State Counsel argued that the petitioner is named in the F.I.R. He carried the deceased from his house to the house of Muhammad Yasin co- accused and that he shared the common intention of his co‑accused and that the offences alleged against the petitioner fall within the prohibitory clause of section 497, Cr.P.C.

4. I have heard the learned counsel for the parties and have gone through the record with care.

5. Muhammad Iqbal petitioner and other accused are not related inter se. He is not connected with the motive of the occurrence in any manner. Except the last seen evidence and the pointation of place of occurrence no cogent evidence exists on the file against the petitioner. The prosecution could not collect ocular evidence to prima facie establish that petitioner as a matter of fact committed murder of Safdar Hussain. The I.O. after conducting thorough investigation opined that Muhammad Yasin and Ghulam Ali had enmity with the deceased whereas the petitioner had not such enmity with the deceased. Petitioner produced number of persons in his defence and on the basis of the statements recorded, the I.O. declared the petitioner as innocent. These facts are mentioned in report prepared under section 173, Cr.P.C. by the Inspector/S.H.O. on 24‑9‑1995. It has been held in 1984 SCMR 429 and 521 that opinion of the police though not binding upon the Court but being adverse to the prosecution creates a reasonable doubt which is to be resolved in favour of the petitioner even at the stage of bail. It was further held that the opinion of the police if C based on sound material brings the case of the petitioner within the ambit of section 497(2), Cr.P.C.

6. In this case the police has collected sufficient material to form its opinion about the innocence of the petitioner. He has been found innocent during the investigation.

7. For what has been stated above, it appears to me that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence but there are sufficient grounds for further enquiry into his guilt Resultantly the petitioner is held to be entitled to the grant of bail after arrest in terms of section 497(2), Cr.P.C. This petition is accepted and the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of Rs.one lac with two sureties each in the like amount to the satisfaction of learned Additional Sessions Judge, Mailsi. N.H.Q./M‑113/L Bail allowed.