1989 P Cr (PLP)

That the applicants accused moved an application for bail before the learned Sessions Judge, which was rejected by him vide order, dated 10‑4‑1989. I have heard Mr. A.Q. Halepota, learned counsel of the appellants and Mr. Abdul Ghafoor Mangi, learned AA.‑G. for the State, who have taken me through the police papers. Investigating Officer Muhammad Afsar and Deputy Superintendent of Police Mr. Ghulam Muhammad Bhutto were also present in Court called by the learned AA.‑G. It is contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants that the applicants were not present at the Wardat at the time of incident and that they have been falsely implicated. It was further contended that the applicant Mansoor Ahmed was admitted in Rural Health Centre at Daulatpur District Nawabshah where he remained as indoor patient for two days from 28‑1‑1989 to 1‑2‑1989 and on 1‑2‑1989 he left for Hyderabad and got himself examined by Professor Abdul Karim Abbasi, Heart Specialist. It is further contended that the applicants Iqbal and Naimatullah alias Kundhal were present at Daulatpur in a Faisla at the time of incident which fact has been proved through number of respectable persons as witnesses. It is further contended that the plea of Ali Bi was taken at the initial stage of the investigation and is supported by occular as well as documentary evidence. It is further contended that even the Investigating Officer and Deputy Superintendent of Police had found the applicants innocent during the investigation and had given such report to the Superintendent of Police, Nawabshah. It is argued by Mr. A.Q. Halepota that the absence of applicants is further supported by the circumstances such as absence of any injury on the person of the applicants and absence of applicants' name in the counter direct complaint filed by co‑accused (Jawed), and the P.Ws. have failed to explain the injuries on the person of Jawed and Aftab. Jawed has sustained as many as 11 injuries and Aftab has three injuries caused to him. Suppression of this fact goes to show that complainant party has no respect for truth. Finally it was argued that complainant party resided outside Nawabshah and were clearly the aggressors as is evident from direct complaint. In support of his contentions, the learned counsel has relied upon the following decisions:‑ (1) 1974 P Cr. L J 450; (2) 1984 S C M R 521; (3) 1984 S C M R 429; (4) 1970 S C M R 299; (5) 1981 S C M R 860; (6) 1978 S C M R 357 and (7) 1986 P Cr. L J 460 On the other hand, Mr. Abdul Ghafoor Mangi, learned A.A: G. appearing for the State has stated that admittedly there are two versions of the occurrence and co‑accused Jawed has sustained number of injuries in the fight. That the applicants had taken the plea of alibi during the investigation before the Investigating Officer and Investigating Officer and Deputy Superintendent of Police had opined that these applicants had not participated in the incident. The two officers were present in the Court and after consulting the case diaries they admitted that they had given the opinion that these applicants did not participate in the fight, however, in view of the fact that there are four casualties in the incident he submitted that it was for the Court to exercise the discretion. I have given my serious thought to the contentions raised by the learned counsel for the applicants. Admittedly there are two versions of the incident and counter‑complaint filed by co‑accused Jawed has been brought on record, process has been issued under sections 307, 325, 148 and 149, P.P.C. No doubt complaint has been filed on i1‑2‑1989 but the fact remains that when co‑accused Jawed and Aftab were arrested they had injuries on their person and such Mashirnama was prepared by Investigating Officer which is on record and both the co‑accused were referred to Civil Hospital, Nawabshah and the medical certificates were issued which are also available on record which show that Jawed had eleven injuries while co‑accused Aftab was having three injuries on his person. In the case of Khalil‑ur‑Rehman v. The State 1979 S C M R 168; where direct complaint filed by the accused came up before the Court about a month after the incident the explanation given for‑the delay was that police had refused to register the case, however, medical report showed that the petitioner and his father were examined at the night of incident who had received grievous injuries from fire arm, therefore, it was observed by their Lordships of the Supreme Court; it was not a counter‑version put forth for obtaining bail but there was some foundation for allegation made by him and, therefore, the Additional Sessions Judge wag right in granting bail to the petitioners on the ground of counter‑version and there was need for holding further inquiry in the circumstances hence the order of Single Judge cancelling bail of petitioners was set aside and petitioners were allowed bail. Adverting to the plea of alibi taken by the applicants, the photo copies oil admission card at Rural Health Centre Daulatpur and prescription slip issued by Professor Abdul Karim Abbasi, Heart Specialist shows that applicant ManSOOr Ahmed was admitted as indoor patient at Daulatpur on 28‑1‑1989 and was discharged on 1‑2‑1989 when he appeared before Professor Abdul Karim Abbas. Doctor on 1‑2‑1989 who had examined him and given prescription. As far as applicants lqbal and Naimatullah alias Kundhal were concerned number of respectable persons were examined by the Investigating Officer who have supported the plea that they were present in Faisala at Daulatpur at the time of incident. The reports dated 10‑2‑1989 by S.H.O. and 13‑2‑1989 by S.D.P.O. Saddar Nawabshah clearly show that these applicants did not participate in the incident nor they were present at the place of Wardat. Even the S.H.O. and Deputy Superintendent of Police who were present in Court and after consulting diaries in the Court stated before me that applicants were innocent. In the case of Muhammad Yousif v. Muhaminad Anwar 1984 P Cr. L J 2325 the petitioner am accused of murder was admitted to bail on plea of alibi supported by medical officer and staff of Rural Health Centre. In the case of Muhammad Afzal v. Nazir Ahmed and others 1984 S C M R 429; the respondents were granted bail by the High Court as they were found innocent by S.H.O., A.S.P. again by Deputy Superintendent of Police observing that although the opinion of police was not binding upon the Court but nevertheless, it was very much relevant m bail matters and makes out a case for further inquiry. In that case complainant filed petition before the Honourable Supreme Court for cancellation of bail but it was dismissed with an observation that: ‑ "The relevancy to the question of bail the opinion of investigating agency in regard to the complicity of an accused person would depend upon the soundness of the material upon which it is based. If the investigation brings to light facts which may furnish prima facie a reasonable ground for believing that accused though named in the F.I.R. is not guilty, the opinion of the Investigating Officer based on such facts will be relevant." and complainant's petition was dismissed. In the above‑reported case the cases of Rehmatullah v. The State 1970 S C M R 299; Karamdin v. Muhammad Sharif 1975 S C M R 230 and Muhammad Rafiq v. Abdul Rehman 1979 S C M R 377 were considered. In another case on the findings of Investigating officer that accused were not present at the scene of occurrence found by their Lordships based on sufficient material, the applicant was given benefit of doubt and granted bail in the case of Amir Ali and others 1984 S C M R

521. From the above discussion in the facts and circumstances of the case I am clear in my mind that the case of 'applicants requires further inquiry wits regard to their participation in the offence and therefore, I feel pursuaded to use the discretion in favour of the applicants consequently I direct that the applicants D may be released on bail if they furnish solvent surety in the sum of Rs. 1,00,000 (Rupees one lac) each and P.R. Bond in the like amount to the satisfaction of the trial Court or the Nazir of this Court. I would like to make it clear that the observations made in this order are tentative in nature and the learned trial Judge shall decide the case uninfluenced by whatever is observed by me in the above order. However, if any tangible evidence is brought on record, during the trial against the applicants, the trial Judge shall be at liberty to cancel their bail. Criminal Bail Application No. 351 of 1989 is granted. N.H.Q./I‑84/K Bail granted.