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Criminal Miscellaneous No. 25313 of 1970, decided on 13th May 1970.

---Ss. 497(2) & 498‑‑Bail‑ Murder case‑‑Accused found innocent by two Investigating Officers initially placed in column 2 of challan form but by subsequent order of Senior Police Officer made without any further investigation, placed in column 4 of challan form‑‑‑Case,' held, covered by S. 497 (2) Accused being empty‑handed and alleged merely to have caught hold of deceased‑Case, held, fit for confirmation of bail.

Rehmat Ullah v. The State 1970 S C M R 299 ref.

Ali Ahmad Awan for Petitioner.

Raza Abbas Naqvi for the State.

S. M. Idris for the Complainant.

This is a petition under section 498; Cr. P. C. for grant of bail before arrest.

2. The facts are these. On the 18th of November 1969, at 5‑00 p.m. a case under section 307/34, P. P. C., was registered at the Instance of Ghulam Muhammad at Police Station Naushera, Tehsil Khushab, District Sargodba, against Muhammad Sher applicant, and two others, namely, Amir and Muhammad Afzal.

3. The prosecution, case; as stated in the petition, is this. That on 18th November 1909, at about 4‑00 p.m., Nazir Ahmad had gone to Bazar where Amir Ali, Muhammad Sher and Muhammad Afzal accused met him. Amir Ali and Muhammad Sher caught hold of Nazir Ahmad, while Muhammad Afzal, who was armed with a knife, gave him knife blows as a result of the injuries, Nazir Ahmad, breathed his last on 20th of November 1969, and the case was converted to one under section 302/34, P. P. C. During the investigation, the complainant in a supplementary statement added the name of Muhammad Khan also amongst the assailants. Likewise on 20th of November 1969, Nazir Ahmad in his dying declaration also named Muhammad Khan as one of his assailants. The investigating officer and Ch. Anwar Mahmood Circle Inspector, who supervised the investigation found the petitioner and Muhammad Khan were innocent. The police after the investigation sent up Muhammad Afzal and Amir Ali to face the trial while the names of the petitioner and Muhammad Khan were placed in column No. 2 in the final police report.

On the 11th of March 1970, the petitioner submitted an application for grant of bail before arrest before the Sessions Judge, Sargodha, who entrusted the same to Khan Mahmood Khan, Additional Sessions Judge. The learned Additional Sessions Judge granted interim bail to the petitioner and Muhammad Khan on the 12th of March 1970, and summoned the record for 25th March 1970. On the 25th of March 1970, the S. H. O., appeared before the learned Additional Sessions Judge, and made a statement that according to the investigation, the petitioner and Muhammad Khan were found innocent. The learned Additional Sessions Judge was nut satisfied with the statement of the investigating officer and summoned the Circle Inspector and the P. D. S. P. for‑9th of April 1970. On that date the Circle Inspector appeared before the Additional Sessions Judge and made a statement that the petitioner and Muhammad Khan had been falsely implicated in this case. After the statement of the Circle Inspector, instead of deciding tile petition, it is alleged, the' learned Additional Sessions, Judge, sent the case to the file of Sessions Judge, Sargdodha, who heard the matter and by his order dated the 17th of April 1970, refused to confirm the interim bail granted to the petitioner whereas the bail of Muhammad Khan was confirmed. Aggrieved by this order the petitioner applied for bail in this Court.

4. A have heard the learned counsel for the parties. Mr. S. M. Idris, learned counsel for the complainant, contended that the petitioner is no longer in column 2 of the police challan but the Superintendent of Police of the district has ordered him to be shown in column 4 along with others. This was not disputed by the learned counsel for the petitioner, but he stated that the order that the petitioner should be shown in column. No. 4 was made by the Superintendent of Police; without any further investigation. This is not denied by the learned counsel appearing for the complainant and the State. Therefore, it is urged by the learned counsel for the petitioner that there is finding of the two police officers on the record that the petitioner was innocent and as such, his case is covered by section 497,(2),1 Cr. P. C., and in view of the dictum of their Lordships of the Supreme Court in Rehmat Ullah v. The State (970 S C M R 299) he is entitled to bail. This argument of the learned counsel for the petitioner is not devoid of substance. In additional the petitioner was empty handed, and the only part assigned to him, is that he caught hold of the deceased it was suggested by the learned counsel for the complainant that the investigation was no honest, but no evidence has been placed on the record to substantiate this allegation.

5. Considering, all the circumstances of the case, in my opinion, it is a fit case for confirmation of bail. Therefore, bail order dated the 24th of April 1910, is hereby confirmed.

Bail confirmed.

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