1987 PLP 483 (SCMR)

SAAD SAOOD JAN, J.‑‑ This is an appeal by special leave from the order of the Lahore High Court rejecting the appellant's application for bail.

2. On 28‑1‑1986 at about 7‑30 a.m. Bashir Ahmad deceased was shot dead as he together with his brother, sister and one Falak Sher was going to Okara in connection with a criminal case. The matter was reported at P.S. Saddar Renala Khurd on the same day at 8‑30 a.m. by his brother, Nazir Ahmad. In the F.I.R., Nazir Ahmad mentioned the appellants and one Liaqat Ali as the persons who had fired at the deceased. The investigation was conducted by an officer of the rank of Inspector. He came to the conclusion that only Liaqat Ali was responsible for the death of the deceased and that the appellants were innocent. His findings were confirmed by the Deputy Superintendent Police. Accordingly, the police asked the local Magistrate to discharge the appellants. The Magistrate passed on the request to the Sessions Judge, Okara. The learned Sessions Judge declined to make any order on the ground that the main case had not yet been sent to him and added that the Investigating Officer himself was competent to make an order for the release of the appellants under section 169 of the Code of Criminal Procedure. Subsequently, the appellants were released by the police.

3. Being dissatisfied with the police investigation the complainant party filed a complaint in the Court. In the complaint the appellants were once again mentioned as the assailants of the deceased. On the basis of this complaint, the learned Sessions Judge issued bailable warrants of arrest against the appellants. The appellants surrendered themselves before the Court and asked for bail. The learned Sessions Judge rejected their prayer and as a result they were re‑arrested. After their arrest the appellants once again moved the Court for bail but without any success. They then filed a bail application before the High Court which met the same fate.

4. It is admitted before us by the learned Assistant Advocate‑General that so far as the appellants are concerned. the case of the prosecution rests entirely upon ocular testimony. Now, during the course of investigation the appellants produced a large number of witnesses including two persons who according to them had seen the attack on` the deceased. It was after considering all the evidence that the two senior police officers came to the conclusion that the appellants were innocent and that only Liaqat Ali was responsible for causing the death of the deceased. Apparently, the learned Single Judge in High Court who dismissed the bail application of the appellants has not given due weight to their finding despite the fact that it strengthened the presumption of innocence which is ordinarily to be drawn in favour of an accused person at the pretrial stage.

5. The doctor who performed the post‑mortem examination found eight gun‑‑shot wounds of entry on the body of the deceased. The Investigating Officer had recovered five empty shells from the scene of occurrence. One of the circumstances upon which the High Court relied in support of its order was that the empty shells recovered from the spot had not been found to have been fired from one weapon and that the number of gun‑shot injuries found on the person of the deceased were not incommensurate with the number of the accused stated by the prosecution. The learned counsel appearing for the appellants has placed before us a copy of the opinion of the Fire‑arm Expert. According to the expert, all the empty shells had been fired from the same gun. It may be mentioned that this gun was recovered from Liaqat Ali. Thus, the High Court had no basis for assuming that more than one gun had been used or more than one person had fired at the deceased.

6. For the reasons stated above, we would accept this appeal and direct that the appellants be released on bail on their executing bonds in the sum of l1s.25,000 with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Okara S.Q./4434/S Appeal accepted