1995 P Cr (PLP)

Ch. Mazhar Ali Naqvi for the Complainant. Ch. Muhammad lqbal for the State The petitioner seeks post-arrest bail in case F.I.R. No.178, dated 31-10-1993, under section 302/324/109/148/149, P.P.C. registered with Police Station Bambawala, Tehsil Daska, District Sialkot, on the statement of Munawar Hussain.

2. Brief facts of the case are that Wali Muhammad alongwith six other accused were sitting in the street near "Patwar Khana" armed with fire-arms. According to the contents of the F.I.R. shots were fired and resultantly Safeer Ahmed and Hayat Muhammad succumbed to injuries. The role attributed to the petitioner is that he had fired which hit deceased on different parts of his body. The motive is also attributed. .

3. The accused persons applied for post-arrest bail and the same was fixed before the learned Additional Sessions Judge, Daska, .who dismissed the same vide order, dated 19-5-1994, hence this petition.

4. In support of the bail petition, learned counsel for the petitioner contends that investigation, was first conducted by Local Police who found the petitioner involved in the case. The- investigation was transferred thereafter and was entrusted to D.S.P., C.I.A, Sialkot, who thoroughly investigated the matter 'and found Wali Muhammad petitioner, Aamer son of Wali Muhammad, Attaullah son of Abdullah and Muhammad Ilyas son of Muhammad Iqbal, as innocent, who according to the F.1.R. actively participated in the occurrence. He also found Iqbal alias Lai son of Muhammad Ismail, Abdur Rehman son of Jan Muhammad and Sultan Ahmed son of Mehr Din, who hatched a conspiracy against the deceased persons, not involved in the case and no incriminating evidence was collected against them. So, they all were also found innocent. He recommended for the preparation of challan against Muhammad Safdar son of Muhammad Boota, Iqbal alias Lai son of Muhammad Ismail and Muhammad Rafique son of Muhammad Iqbal. The complainant also got transferred the investigation and the same was conducted by the Police Range Crimes, Gujranwala. The petitioner was once again found not involved in the instant case. Learned counsel argues that since the petitioner has been found innocent in the successive investigations, therefore, he is entitled to the concession of bail. ,To support this contention, learned counsel relies on 1994 P Cr. L J 1020. He further vehemently argues that injury attributed to the petitioner according to the post-mortem report is injury No. l, margin of which is averted and not inverted.

5. Conversely, learned counsel for the complainant opposes the petition and submits that the opinion of the Investigation Officer has no binding force on the Court in deciding the bail petitions. Although the two Police Officers of different agencies have given their opinion different from that of local police yet the accused persons have been sent to the trial Court to face the trial. The petitioner was arrested on 9-11-1993 and the recovery of .12 bore gun was affected from him on 23-11-1993. Maintains that if the doctor has given his opinion about the injury attributed to the petitioner as an exit wound, such minute details are not required to be gone into at the bail stage. The cognizance has been taken, charge is framed, the evidence shall be recorded very soon, therefore, at this stage when the trial is likely to be concluded in ' near future, the petitioner cannot be held entitled to concession of bail. To support this view, learned counsel relied on 1980 S C M R 203, 1990 S C M R 307 and 1994 P Cr. L J 361.

6. Learned counsel appearing for the State also adopted the same contentions as raised by the learned counsel for the complainant with the addition that this Court may order for expeditious trial of the case, by refusing concession of bail to the petitioner.

7. I have heard the learned counsel for the respective parties and have given my anxious consideration to the facts of the case after going through the file, the precedents cited and provisions of law. The interesting feature of the case is that the petitioner was attributed one fire-arm injury only which hit on the neck of Safeer Ahmad deceased but in the post-mortem report, it is mentioned as injury No. 1, the margin of which is averted and not inverted. This is an exit wound. There are as many as 11, persons named in the F.I.R. and eight out of them have been declared innocent and were not found present at the place of occurrence: The opinion of two gazetted Police Officers cannot be thrown away so casually and benefit of doubt arising from the medical report and from the report of the Investigating Officers must go to the petitioner even at the bail stage as was done in 1989 A M L D 2753. The main contention of the learned counsel for the complainant is that the trial has already commenced and shall be concluded in a very short time. The question arises that as to whether concession of bail can be withheld from the petitioner if he is otherwise entitled to bail? The commencement of, the trial does not afford any ground to refuse the bail nor it will prejudice the main case. The contention that since date has been fixed for evidence by the trial Court, therefore, the bail cannot be granted, has no force at all. In this regard, reference can easily be made to P L D 1989 SC 585 (Head Note "C"). The petitioner was arrested on 9-11-1993 and since then he is in judicial lock up awaiting for his trial.

8. Without commenting upon the merits of the case, so that it may not prejudice anybody's case, prima facie it is a case of further inquiry, entitling the petitioner for the concession of bail.

9. In view of what has been discussed above, I feel inclined to allow bail to the petitioner, provided he furnishes bail bonds in the sum of Rs.1,00,000 C (one lac) with one surety in the like amount to the satisfaction of A.C./Illaqa Magistrate, Daska. This petition stands disposed accordingly. N.H.Q./W-56/L Bail allowed.