2001 P Cr (PLP)

Zahid Zaheer Syed for Respondents Nos. 1 and

2. A.H. Masood for the State. The petitioner seeks cancellation of bail granted to Faiz Ahmad and Milhammad Hanif respondents Nos. 1 and 2 respectively by learned Additional Sessions Judge, Jhang vide order, dated 31‑3‑1998.

2. Faiz Ahmad and Muhammad Hanif respondents are related as maternal‑uncle and nephew inter se. Bail is sought to be cancelled on the ground that both the respondents have been nominated as accused persons in case F.I.R. No.258, dated 10‑10‑1997 registered with Police Station 18 Hazari, District Jhang, at the instance of Sher Muhammad. Initially the case was registered under sections 302/452/34, P.P.C. but subsequently the injured Zulfiqar succumbed to the injuries and section 302, P.P.C. was applied. The occurrence according to the prosecution was seen by two witnesses namely Ghulam Shabbir and Muhammad Ali Khan. An application for bail was moved on behalf of Faiz Ahmad, respondent but the same was dismissed vide order, dated 3‑2‑1998 as follows:‑‑ "Scanning of the record manifests that the petitioner is named in the F.I.R. Although F.I.R. was lodged with delay of four days, but that has been explained in F.I.R. on the basis of it, since the victim had been removed to Rodu Sultan Hospital, wherefrom to Civil Hospital, Jhang and then to Allied Hospital, Faisalabad and the F.I.R. was lodged before the death of the deceased. As per Medico legal Report the doctor did not give any opinion about the kind of weapon despite the fact that injury No.2 was incised wound and as per Medico‑legal Report on opening the skull, the skull injury had hole, therefore, ex facie it could not be ruled out that same was the result of fire‑arm injury and even the laceration may occur by fire shot injury. Nothing has been asserted for false implication of the petitioner, recovery has been effected and case of the petitioner falls within the prohibition contained under section 497(1), Cr.P.C. Since the offence is punishable with capital sentence, therefore, the petitioner does not deserve concession of post‑arrest bail. The bail petition is hereby dismissed." After sometime the application of Faiz Ahmad was repeated alongwith Muhammad Hanif respondent whereupon the learned Additional Sessions Judge vide his impugned order, dated 31‑3‑1998 admitted both the respondents to bail.

3. As regards Muhammad Hanif respondent it was observed qua him in para.3 that he was minor and as such his case was covered by proviso to section 497, Cr.P.C Not only the learned Additional Sessions Judge noted his age as 14 years but the same is also recorded in the police record as well. The application to his extent is, therefore, dismissed

4. As regards Faiz Ahmad respondent No. 1 he was armed with a Carbine and inflicted injury on the head of the deceased causing fracture of skull. It was observed that the D.S.P. during his investigation declared him innocent, therefore, he admitted that previously during two investigations, the said respondent was held to be guilty and the D. S. P. without any material substance held him to be innocent. It is further submitted that subsequently the investigation was taken up by Range Crime, Faisalabad wherein the respondent was again found to be guilty and challenged to face trial in the Court.

5. It is true that opinion of the Police Officer has relevance for grant or refusal of bail but any opinion by the Police Officer has not to be blindly followed. The learned Additional Sessions Judge should have also referred to the material on which the opinion was based. Mere reference to the opinion of the Investigating Officer and that too in a murder case which is supported by the eye‑witnesses, the grant of bail in such a manner merits to be deprecated. The learned Additional Sessions Judge only after but 2 months earlier had held that' the respondent was not entitled to concession of bail on merits but proceeded to extend him the concession after two months without even referring to the material holding the respondent to be innocent The order for grant of bail to Faiz Ahmad respondent in my view is totally perverse and not at all maintainable. I would, therefore, cancel and withdraw the concession extended to him. The bail of Faiz Ahmad respondent No. 1 is accordingly cancelled. He will surrender himself forthwith. The petition is disposed of accordingly. H.B.T./D-233/L Order accordingly.