2003 PLP 2674 (YLR)

Opinion of police

Binding force of-- Opinion of police was not binding upon Court while taking cognizance and material on record was to be examined. Ali Nawaz Ghanghro for Applicants. Ali Azhar Tunio, A.A.-G. for the State. Date of hearing: 7th May, 2003. Bail has been sought by the applicants in a case registered at Police Station Naudero for an offence punishable under sections 380/409/34 and 120-B,.P.P.C. It is alleged in the F.I.R. lodged by complainant Ghulam Abbas, Manager, National Bank, Naudero Branch that on 18-2-2003 at 11-00 a.m. he checked the safe of the Bank and found that the gold ornaments of people deposited as security in the bank for the purpose of getting loans were missing. He conveyed this information to his high-ups and then on the same day at 11-00 p.m. the F.I.R. was lodged nominating Zahid Hussain, Muhammad Ibrahim, Abdul Karim, Rafique Ahmed, Abdul Wahid, Bashir Ahmed and Nisar Ahmed as the persons involved in the commission of the offence. During investigation, the entire property was secured from Abdul Wahid on 27-2-2003, 2-3-2003 and 6-3-2003. Challan was submitted in Court showing amongst others the applicants in Column No.2, as they were found to be innocent, but the learned Magistrate while taking cognizance joined them as accused persons and remanded them to custody. I have heard Mr. Ali Nawaz Ghanghro, learned counsel for applicants and Mr. Ali Azhar Tunio, learned A.A.-G. Main contention raised in support of the bail plea is that practically there is no material on record available with the police to suggest that the applicants are involved in commission of the offence in any manner. Mr. Ghanghro submitted that the entire recovery has been made from another accused and even if the learned Magistrate took cognizance right or wrongly, the guilt of applicants would require further inquiry and they are entitled to grant of bail. Mr. Ali Azhar Tunio, learned A.A.-G. conceded to grant of bail in view of the facts and circumstances of the case. It is essential to point out that the joining of some persons as accused in a criminal case within the meaning of section 190, Cr.P.C. is no bar as held in the case Safdar Ali v. Zafar Iqbal 2002 SCMR 63, there should be material on record with the prosecution to enable the Court to reach at conclusion that they are prima facie, involved in the commission of the offence. Learned A.A.-G, on the basis of police papers has not been able to point out such substantive piece of evidence at this stage. However, he does not question the joining of the accused persons in the case. At the same time, it may be observed that the opinion of the police is not binding upon the Court while taking cognizance and as such ultimately the material on record is to be examined. For the time being, it can only be observed that there is a ground for holding that the case of the applicants calls for further inquiry. The rest of the points fall within domain of trial and it is for the trial Court to decide the same. In the above-stated circumstances, the application is allowed. The applicants be released on furnishing surety in the sum of Rs.50,000 each and P.R. bond in the like amount, to the satisfaction of the trial Court. H.B.T./A-468/K Bail granted.