P L D 1988 Lahore 247 (PLP)

This is a second petition by Khizar Hayat and Suba petitioners for grant of bail in a case registered against them under section 302/34, P.P.C. vide F.I.R.No.53 dated 28 1987 with Police Station Bhowana, District Jhang at the instance of Mst. Bakhan, the complainant. The allegations against the petitioners are that they alongwith their co accused Zawar Hussain waylaid the deceased Mst. Manzooran when both of them were armed with .12 bore guns whilst the co accused was armed with a carbine. It has been further alleged that petitioner No.2 raised a Lalkara on which a fire was shot by Zawar co accused which instantaneously killed Mst. Manzooran aforementioned. After the incident all the accused on the alarm raised by the complainant and other womenfolk and the approach of residents of the village fled away while firing. The only fresh ground taken in this petition as canvassed by the learned counsel for the petitioners is that during the course of investigation the petitioners produced witnesses before the Investigating Officer who deposed that the petitioners were not present A at the place of occurrence at the relevant time and that the Investigating Officer has in his Zimni dated 24-3- 1987 observed that the defence evidence is forceful. The learned counsel in the context of the above position submitted that the case of the petitioners is one of further inquiry and, therefore, they are entitled to bail. The learned counsel for the petitioners when asked how the copy of the Zimni from which he read about the observations of the Investigating Officer had come to his hands replied that it was provided to the learned counsel by Sorab Khan son of Bhatti Khan resident of Chak No.184, Tehsil Chinlot, District Jhang, who is brother of petitioner No.

2. I am afraid. the contention resistance force. The defence 'version set up during the course of investigation and the report of the Investigating Officer in this regard are of no consequence while deciding whether the petitioners are to be allowed bail or not. b The bail has already been refused to the petitioners after due consideration and there appears no basis for reconsidering the matter. It may also be observed that in the same Zimni the Investigation Officer has also stated that the version of defence being set up before him is one which can only be decided at the trial, by the trial Court. The learned Sessions Judge, Jhang was asked to inform as to when the case is likely to be fixed. The report of the learned Sessions Judge dated 14 1987 has since been received and it has been stated therein that the case is likely to be fixed after about four months. The question of bail can, therefore be considered appropriately only after some evidence has been recorded. It may further be observed that the remarks of the Investigating Officer in the Zimni otherwise also do not appear to be credenceworthy when seen in the light of the position that a copy of the Zimni is 'available with the petitioner's brother to which Zimni by virtue of provisions of section 172, Cr.P.C. the accused cannot even have access The above factor, therefore, prima facie establishes the liaison of the petitioners party with the police investigating agency and a legitimate inference can, therefore, be drawn from the attendant circumstance that the contents of the Zimni may not be true. In view of the foregoing discussion I find no merit in this petition which is accordingly dismissed. Before parting with the case, I may observe that as provided by section 172(2), Cr.P.C. neither the accused nor his agents are entitled to see the Zimni. They are also not entitled to call for such ,diaries. Despite the above position it is frequently noticed that copies of the Zimni are available with the accused or their agents which, as already observed above, not only prima facie tend to show that, the contents of the Zimni are procured ones out also indicate collusion between the accused, the investigating Officer and/or other agencies in whose custody the case file remains. It is highly desirable that this malpractice of keeping the Zimnis so loose as to be available to the accused party should be discouraged. I would, therefore, direct the Superintendent of Police, Jhang to hold an inquiry into the matter as to how the Zimni aforementioned reached the hands of the brother of one of the accused. The report of the inquiry shall be submitted by him to the Registrar of this Court within one month. M . B . A . / K -7 1/ L Order accordingly.