1999 PLP 445 (MLD)

S. 497/498

Bail

Police Officer's opinion

Evidentiary value and legal effect

Opinion of a Police Officer, no matter how high he may be in his own Department, is not binding upon any Court, whereas judgments and orders of all Courts are binding upon all Police Officers. (c) Criminal Procedure Code (V of 1898)

S. 497

Penal Code (XLV of 1860), S.302/392/34

Bail, grant of

Various Investigating Agencies had repeatedly doubted the veracity of the prosecution case and declared the accused innocent

Benefit of such doubt must have been resolved in favour of accused even at bail stage, because the grant or refusal of bail was a judicial exercise

Bail was allowed to accused in circumstances. Tariq Bashir v. The State PLD 1995 SC 34 ref Ch. Pervaiz Aftab for Petitioners. Mazhar Jameel Qureshi, A.A.-G. assisted by Ata Ullah Khan for the State Tariq Zulfiqar Ahmad Chaudhry for the Complainant. Mushtaq Ahmad, Nazar Hussain and Atta Muhammad petitioners were arrested in pursuance of a case registered against them vide F. I. R. No. 173 of 1997, dated the 2nd of July, 1997, under section 392/302/34, P.P.C., at Police Station Shah Jamal, District Muzafffargarh, regarding an occurrence which allegedly took place on the night between the 1st and 2nd of July, 1997 at about 2-00. a.m. in the house-cum-shop of Ghulam Sarwar deceased who died on the 2nd of July, 1997, at about 5-00. a.m. The first information report was lodged on the 2nd of July, 1997 at 6-10.a.m. by Ghulam Abbas the unfortunate son of Ghulam Sarwar deceased. According to the first information report Mushtaq Ahmad Petitioner fired at the left upper leg of Ghulam Sarwar deceased after the accused persons had forcibly taken Rs.80,000 from him. What was the necessity of firing at him after the deed had been done is a question which will only be answered at the trial after recording evidence. Be that as it may, the first investigation of this case was conducted by Sub-Inspector Faiz Muhammad, Station House Officer of the local Police Station who declared all the petitioners to be "innocent'. On the request of the complainant a second investigation was conducted. by a Deputy Superintendent of Police, namely, Muhammad Iqbal who was at that point of time the Sub-Divisional Police Officer of Ali Pur and he came to the conclusion that this was a "blind murder' and that all the accused persons were "innocent". Yet another investigation was being carried out by Habib Ahmad Khan, a Deputy Superintendent of Police of C.I.A. and while this investigation was in midstream it was entrusted to Sh. Muhammad Arshad Iqbal, Deputy Superintendent of Police who was the Sub-Divisional Police Officer of Kot Addu at that time and he too declared all the accused persons as "innocent". Yet another investigation was conducted by another Deputy Superintendent of Police, namely, Rao Akbar'Ali who was the Circle Officer of Police Station Jatoi of District Muzaffargarh and he too came to the same conclusion.

2. Where the Investigating Agencies themselves repeatedly doubt the veracity of the prosecution case, it cannot but create a general doubt regarding its truthfulness in the mind of any reasonable man. The words "reasonable grounds" used in subsection (1) of section 497, Cr.P.C. are words of a higher import than mere suspicion. Reasonable grounds must appeal to a reasonable man as being true and if reasonable grounds do not, prima facie, seem to exist then there may be grounds for further enquiry as envisaged in subsection (2) of section 497, Cr.P.C. There is a dichotomy in section 497, Cr.P.C. where reasonable grounds to believe that a person is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, prima facie, exists, bail should not be granted because it is prohibited by subsection (1) of section 497, Cr.P.C. Where reasonable grounds, prima facie, do not seem to exist but there are grounds for further enquiry, bail has to be granted as laid down in subsection (2) of section 497, Cr.P.C. This is the pith and substance of the entire case law on the subject which need not be repeated here. The latest view having been expressed in the case of Tariq Bashir v. The State (PLD 1995 SC 34).

3. It is settled law that the opinion of a Police Officer, no matter how high he may be in his own Department, is not binding upon any Court. In fact, the correct legal position is to the contrary. The orders and judgments of all Courts are binding upon all Police Officers. There is no cavil with this legal proposition. In a case like the present one where repeatedly doubts are being mentioned about the culpability of the petitioners, the benefit of this doubt must be resolved in their favour even at the stage of grant of bail because the grant or refusal of bail is a judicial exercise.

4. Resultantly, the petitioners are granted bail provided they furnish bail bonds in the sum of ks.50,000 each with two sureties each in the like amount to the satisfaction of the trial Court. N.H. Q/M-711/I????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed