1999 PLP 1742 (MLD)

Mian Abdul Qayyum Anjum for the State. A case under section 302/34/109, P.P.C. was registered against the petitioners and two others vide F. I. R. No. 106 of 1996 dated 29-6-1996 at Police Station, Qaimpur District Bahawalpur for the murder of Ghulam Sarwar, a sister's son of the complainant Ahmad Yar. Both the petitioners applied for pre-arrest bail, which was dismissed by the learned Additional Sessions Judge, Bahawalpur vide his order dated 31-7-1996. Instead of surrendering to the custody of the Court after dismissal of their bail petition they filed a petition for pre-arrest bail in this Court, which was dismissed limine vide order dated 21-8-1996. After the dismissal of their pre-arrest bail petition by this Court, the petitioners did not surrender to the trial Court whereupon they were summoned through warrants by the said Court. A revision petition was filed by the petitioners challenging the order of learned Additional Sessions Judge, Bahawalpur summoning them to face the trial. That revision petition was also dismissed by the High Court. It is thereafter, that the petitioners surrendered themselves for arrest on 24-10-1997.

2. The petitioners applied for post arrest bail, which was dismissed by a detailed order dated 8-11-1997 recorded by the learned Additional Sessions Judge, Bahawalpur on the ground that the conduct of the petitioners was to avoid the process of law. It was further held that although the petitioners have been held innocent by the police in three consecutive investigations and have been placed in column No.2 of the challan, but the opinion of the police was not binding on the Court and as such the petitioners had no case for bail.

3. I have considered the foregoing facts, and have also gone through the record. It is true that the petitioners did not surrender after the dismissal of their pre-arrest bail petition by the learned Additional Sessions Judge, Bahawalpur and also by this Court thereafter. They were summoned by the learned trial Court, but they preferred a revision petition to avoid their arrest. After dismissal of their revision petition by the High Court they voluntarily surrendered on the date mentioned above and are in continuous detention since then i.e. 24-10-1997.

4. True the petitioners availed their legal remedies to avoid their arrest and ultimately surrendered to the Court after they were unsuccessful in all those remedies. In such a situation it will be just and proper to consider their bail petition in the light of facts and the part attributed to them during the commission of the offence irrespective of their above conduct.

5. It is contended that the petitioner Muhammad Qasim was not available at the time of occurrence as he was at the Police Station Qaimpur at the relevant tinge to lodge F. I. R. No. 105 of 1996 in which he was a witness for a double murder. Apart from that a proverbial Lalkara is attributed to Sher Khan petitioner whereas Muhammad Qasim had only pointed out the place where the deceased was present at the time of occurrence. The murder was committed by Fiaz Khan and Ghulam Haider their co-accused. The perusal of F.I.R. shows that Qasim Khan petitioner had told his men to finish Ghulam Sarwar deceased, while he himself left for the house of Mst. Durran deceased. Likewise Sher Khan allegedly exhorted the principal accused namely Fiaz Khan, who fired at the deceased Ghulam Sarwar. Similarly Ghulam Haider co accused fired second shot at the deceased. It is, therefore, contended that none of the petitioners were attributed any injury to the deceased person and as such they have a case of further inquiry particularly when they have been declared innocent in three successive investigations and have been placed in column No.2 of the challan.

6. It is true that ipse dixit of the police is not binding on the Court but in the instant case keeping in view the role assigned to the petitioners in the F.I.R. coupled with the investigations conducted by the police finding them consistently innocent would make it a case of further inquiry.

7. The learned counsel for the state has also affirmed that the petitioners were declared innocent during three investigations as per police record These investigation were conducted by Muhammad Safdar, S.I./S.H.O., Zia Ahmad Bokhari D.S.P. and Muhammad Aslam Ghori, D.S.P., who were consistent to hold the petitioners innocent

8. In the light of above situation, this petition is allowed and both the petitioners are admitted to bail in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of learned trial Court. N.H.Q./M-738/L Bail allowed