1999 P Cr (PLP)

The respondents, namely, Ashiq Hussain and Nazar Hussain are facing charge of murder as accused in a case under section 302/109/34, P,P,C. registered against them through F,I.R. No.38 of 1997, dated 9-4-1997 at Police Station Kala, Dera Ghazi Khan. They have been allowed bail by the Sessions Judge, Dera Ghazi Khan vide order, dated 10-9-1997 with the observation that they having found innocent during the investigation were entitled to the concession of bail in terms of subsection (2) of section 497, Cr.P.C.

2. The petitioner being complainant of the case has moved this application under section 497(5), Cr.P.C. before this Court for cancellation of bail of respondents. The occurrence is stated to have taken place during the night of 8/9-4-1997 in the courtyard of the house of petitioner. Ashiq Hussain and Nazar Hussain accused with .12 bore guns raising Lalkaras fired at Nazar Hussain deceased; son of the complainant. The shot fired by Ashiq Hussain accused hit on the face and neck of the deceased and that of Nazar Hussain on right shoulder of the deceased. The respondents were also identified by Ghulam Sarwar and Ghulam Farid in torchlight, who while sleeping in the adjoining house reached at the spot. The reason behind the occurrence was the suspicion of accused of illicit relations of wife of Ashiq Hussain with the deceased.

3. Learned counsel for the petitioner contended that the respondents are attributed specified role of causing fire-arm injuries to the deceased and they being known to the witnesses were identified as such and, thus, the opinion of police on the basis of presumption in favour of the respondents negating the direct evidence of natural witnesses did not furnish a valid ground for grant of bail.

4. Learned counsel for the respondents without pointing out any material on record in support of their innocence forcefully argued that except witnesses, no other persons from the locality was attracted to the occurrence and that even wife of the deceased as an inmate of the house did not witness the occurrence, allegedly taken place in the house of the deceased. He argued that possibility of the occurrence as unseen being not ruled out, the opinion of Police Officer must receive full weight and that the case being of doubtful nature, the bail granting order is not interferable at this stage after the commencement of the trial.

5. Learned State Counsel has supported the cancellation with the argument that the local police formed the opinion without any material controversy to the evidence available on record in support of the allegations.

6. Having heard the learned counsel for the parties and perused the record, I regret my inability to subscribe to the view taken by the learned Additional Sessions Judge for grant of bail under section 497(2), Cr.P.C. on the basis of opinion expressed by the police as an Investigating Agency on the basis of giving artificial reasons though appreciation of evidence and raising presumption of innocence in favour of accused. It may be observed that a distinction is to be made between an opinion and judgment. The opinion is not formed through rejecting the evidence but the same must be based on some material independent to-the evaluation of prosecution evidence. The provisions of section 497(2), Cr.P.C. undoubtedly are invokable in the cases in which the reasonable grounds for believing that an accused has committed a non-bailable offence, are not available and sufficient grounds for further inquiry into his guilt exist and if apparently there are reasonable grounds for believing that he has committed such an offence, will not be entitled to the concession of bail. The Courts must not be oblivious of the fact that unless a case comes out of the purview of section 497(1), Cr.P.C., the provisions of subsection (2) cannot be pressed into service on the basis of unfounded presumptions and inferences at bail stage. The learned Judge while granting bail to the respondents failed to take into consideration that although the occurrence is of night time but the accused are specifically named with their role in the F.I.R. with the claim of identification by the witnesses, the presence of whom cannot be excluded for the purpose of extending benefit to the respondents. The learned Judge also failed to take into consideration the fact that the Investigating Officer has not collected any material in support of innocence of the respondents. The tentative assessment of evidence being permissible at bail stage, the Courts are not supposed to make a detailed appraisal to the same and undo the scheme of law on bail.

7. There is no cavil to the proposition that doubt, if any arising, should go to accused even at bail stage and opinion of Police Officer, if based on some material, will also receive weight but it is not binding to be followed. The relevant evidence for the purpose of considering the innocence or guilt of a person for the purpose of application of section 497(2), Cr.P.C. is confined to the tentative evaluation, of the evidence, namely; the allegations contained in the F. I. R., the statements of the witnesses under section 161, Cr.P.C. and such other material collected by the Investigating Officer as evidence during the investigation. The inference of the Investigating Officer that no person from the locality except the witnesses have supported the prosecution case or that the wife of the deceased has not been able to identify the assailants cannot be a valid ground to doubt the credibility of the witnesses at this early stage. A Police Officer is not supposed to assume the role of Court and proceed on the basis of his judgment through discarding the evidence of guilt. The opinion of the Investigating Officer deciding the credibility of the eye-witnesses disbelieving their claim of presence at the spot is equal to make the decision of the case through misled or misguided the judgment on the merits. The following important elements of the case tagging the respondents with commission of offence remained out of consideration by the learned Judge:-- (i) Both the respondents are named in the F.I.R. with role of causing fire-arm injuries to the deceased. (ii) They were identified by the P.Ws. as assailants of the occurrence. Therefore, the reasons found favour to the learned Judge for grant of bail being perverse and contrary to law must be said not valid reasons for grant of bail.

8. After having gone through the record of the case and investigation file made available in the Court, I find that the grant of bail to the respondent in this case of capital punishment was Violative of the principles of law governing the bail matters. The learned Judge while extending the concession of bail to the respondents only on the basis of a favourable opinion of a Police Officer did not properly exercise the jurisdiction.

9. Normally, the bail granted to a person is not interfered at the stage when the trial is already under progress, but if the discretion was not exercised in a proper manner, the case would fall under exception to the abovesaid rule and the provisions of section 497(5), Cr.P.C. can be invoked in suitable cases unhesitatingly.

10. For the foregoing reasons, the bail allowed to the respondents by learned Additional Sessions Judge vide order, dated 10-9-1997 is hereby recalled I and this application is accordingly allowed. N,H.Q./M-1018/L Bail cancelled: