1969L3072 (PLP)

M. Anwar for Respondents Nos. 1 and

2. Masud Ahmad Khan for the State. An application has been put in on behalf of Wali Muhammad under section 497(5), Cr. P. C., wherein it has been prayed that the bail of Mian Muhammad Akbar and Mian Bakhtawar should be cancelled and they should remanded to judicial custody. Notice of this application was issued on 2nd April 1969, by my learned brother Muhammad Afzal Cheema, J. The investigating officer along with the record was sent for. In obedience to the notice respondents are present along with Mr. M. Anwar, Advocate. Mukhtar Hussain Shah, Inspector of Police is present along with the file of this case.

2. The facts are these, on 9th March 1969, a case under sections 302/307, P. P. C. was registered at Police Station Malka. Hans at the instance of Wali Muhammad, an eye‑witness of the occurrence, who named Shah Muhammad as having shot deal four persons at the instigation of the respondent. The occurrence took place at about sun‑rise time. The report was lodged at 8‑15 a.m.

3. Mr. Wasim Sajjad, learned counsel for the petitioner contends that the complainant in his supplementary statement stated that the respondents were present near the scene of crime and were raising lalkaras. On examining the record it transpires that this is so.

4. To begin with, I would say that this is an after‑thought on the part of complainant. If the respondents were present at the scene of the crime, the informant, who is an eye‑witness, would have stated so. The Inspector of Police states that this case was investigated by the D. S. P. of the Circle. As a result of the investigation he has found the respondents innocent and as such he thought it advisable not to send the respondents fur a judicial verdict. Learned counsel appearing for the Stain also does not support the application for the cancellation of bail.

5. Mr. Wasim Sajjad relying on Ahmad Bakhsh and another v. The State (1969 S C M R226) argues that this Court should not evaluate the evidence in the bail matter and that the material on the record is enough which implicates the respondents. In this judgment their Lordships took the views that the evidence adduced by the prosecution, if remains unrebutted, then there would certainty be reasonable grounds for believing the accused to be guilty and that the Courts at the stage of the bail should not evaluate the evidence. I respectfully agree with the pronouncement of the Supreme Court. In the instant case, a gazetted officer of the police, after examining the witnesses of the complainant and that of the accused, was of the opinion that the respondents are innocent. It is true that the opinion of a police is not per se legal evidence, but that can be taken notice of in granting or refusing bail. The complainant's version has been belied as the result of the investigation and ultimately, the police made up their mind that there was not sufficient evidence to connect the respondents with the alleged crime. The case of the respondents is fully covered by the judgment of their Lordships of the Supreme Court in Ch. Abdul Malik v. The State (P L D 1968 S C 349). In my judg ment the respondents have been rightly enlarged on bail by the learned Additional Sessions Judge.

6. The result is that I consider that this is not a fit case where the bail allowed to the respondents should be cancelled. In consequence the petition fails and is dismissed accordingly. Petition dismissed.