2010 PLP 1121 (MLD)

ALI SAIN DINO METLO, J.

Heard Messrs Abdul Rasool Soomro,. Advocate for the applicant, Muhammad Bux Soomro, Advocate for the complainant, and Naimatullah Bhurgri, State Counsel. The latter two have opposed bail.

2. According to the prosecution, on 7-4-2009, at 2-00 a.m., five persons; namely, Muhammad Alam Nasirani, Dado Nasirani, Chinchoo Nasirani (present applicant) and two unidentified persons, all armed with sticks, entered into the house of complainant Guizar Ahmed situated in Sui Gas Mohalla, Kashmore, presumably for the purpose of committing theft or some other offence. On the awakening of the complainant and other family members of the house, namely, his brother Mevo alias Ahmad and father-in-law Shamlo, one of the intruders, namely, Muhammad Alam was caught at the spot after some scuffle in which P.W. Shamlo and accused Muhammad Alam sustained minor injuries. The matter was reported to police on the same day.

3. On investigation police found applicant Chinchoo and Dado innocent. Their opinion is based upon statements of several witnesses examined by the Investigating Officer. However, the Magistrate, taking cognizance, disagreeing with the opinion of police, joined them as accused and issued non-bailable warrants against them and the trial Court has refused bail to the applicant.

4. It is true that the Magistrate taking cognizance as well as the trial Court are not bound by the opinion of police, but at the same time opinion of the Investigating Officer, who has the opportunity of making immediate spot enquiry, carries significant weight, as it is the opinion of the Investigating Officer on the basis of which cognizance is taken and not on the basis of F.I.R. or statements recorded under section 161, Cr.P.C. To be bound by an opinion and to give weight to it are two different things. The Court cannot ignore opinion of the Investigating Officer on the ground that it is not bound by it. While joining, as accused, a person found innocent by police, it is not necessary to issue non-bailable warrant against him and also refuse him bail, unless the opinion of police is found arbitrary and there are strong grounds to believe him guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years. In Criminal Petition No. 105-K of 2002, re: Shah Murad and others v. The State, decided on 11-12-2002, the Supreme Court was pleased to convert non-bailable warrants into bailable warrants in a murder case in which the persons placed in column No.2 were joined as accused.

5. In view of the above, the case of the applicant is fit for the grant of bail and, therefore, he is directed to be released on bail on giving one surety in the sum of Rs.100,000 and personal bond in the like amount to the trial Court. H.B.T./C-19/K Bail granted.