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Criminal Miscellaneous No. 5158 of 1968, decided on 7^th October 1968.

Ss. 497 & 498---‑Bail before arrest‑--Complaint under S. 302, P. P. C.‑---Two of Police Officers, during investigation pronouncing accused to 6e innocent but ultimately one of Police Officers deciding to send him up for trial‑--Police record shoving conflicting versions of incident‑---Case, held, covered by S. 497 (2)‑--Accused admitted to bail.

Ch. Abdul Malik v. The State P L D 1968 S C 349 fol.

Ch. Muhammad Iqbal for Petitioner.

Abdul Majid Lashari for the State.

This is an application for bail before arrest under sec tion 498, Cr. P. C.

2. On 21st April 1968, one Rajada lodged it report at Police Station Khangah Dogran, District Sheikhupura, against the petitioner and four others, namely, Javed, Ali, Rafi and Mahmood. The allegations in substance are that the petitioner and four others came armed. Haji Rehmat Khan fired from a gun from a short distance and the burst hit Shah Muhammad, who succumbed to the injuries at the spot, while the others also tired in the air.

3. The police officer, who is present along with the file of this case states that in the course of the investigation he was of the view that the accused‑petitioner was innocent and his view was affirmed by the Supervising Officer, Mr. Hassan Mustafa, Superintendent of Police of the district.

4. On examining the police file it transpired that the com plainant was not satisfied with the investigation of this case and made an application to the D. I. G. Lahore Range, who ordered the transfer of the investigation of this case to C. I. A. Staff, Lahore, on or about 19th May 1968. Mr. Niaz Ahmad Inspector of Police, investigated this case. This officer did not examine the witnesses, but on the basis of the evidence and the material on the record, thought it fit to place the petitioner in column I of the police report submitted under section 173, Cr. P. C.

5. From the facts placed before me it appears that the challan was put in the Court somewhere in the month of July 1968. On 17th September 1968, the Court proceeded against the petitioner under sections 87 and 88, Cr, P. C.

6. Ch. Muhammad Iqbal learned counsel for the petitioner states that oil learning that non‑bailable warrants have been issued against the petitioner, the petitioner put in an application for bail before arrest. The learned Additional Sessions Judge, Sheikhupura, admitted the petitioner to ad interim bail, but did not confirm it.

7. On the police record there are conflicting versions of the incident. According to the complainant he, along with three persons, was asleep in the Haveli when the accused came and tired at the deceased, while the other witnesses, Ali and Wali state to the contrary. According to their assertion, Rajada informant, was not present in the Haveli, and that one person at mid‑night entered the Haveli, fired and escaped.

8. I have given this matter my anxious consideration. It is true that the opinion of these police officers is not per se a legal evidence, but one thing cannot be forgotten that during this investigation, two police officers pronounced the petitioner to he innocent, though ultimately one of the police officers decided that the accused should be sent up for trial.

9. Tile petitioner is present in Court. Learned counsel has shown mfr his deformed leg, and argued that it was not possible for him to have participated in this crime. Be that as it may, it is not for this Court to determine this issue in this application.

10. From the material placed on the record it can be said that the case of the petitioner is covered by section 497 (2); Cr. P. C. Following the dictum of their Lordship of the Supreme Court in Ch. Abdul Malik v. The State (P L D 1968 S C 349) I think it is a fit case for bail. Therefore, I admit the petitioner to bail in the sum of Rs. 20,000 (twenty thousand) with two sureties in the like amount to the satisfaction of the A. D. M., Sheikhupura, pending the decision of the case against him.

Bail granted.

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