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Criminal Miscellaneous No. 2433-B of 1978, decided on 25th July 1978.

--- S. 497(2)---Bail of petitioner accused of murder pressed on grounds (i) F.I.R. showing petitioner empty-handed; (ii) petitioner attributed only 'lalkara' and no overt act; (iii) petitioner found innocent by Investigating Officer and his opinion though not binding on Court yet an important circumstance for grant of bail-Allegations against petitioner coupled with finding of his innocence by Investigating Officer, held, call for further enquiry under section 497(2), Cr. P. C.---Bail allowed, in circumstances.

Rehmatullah v. State 1970 S C M R 299 and Gul Ahmad v. Massam Khan 1977 S C M R 27 ref.

Ch. Ghulam Murtaza Khan for Petitioners.

A. R. Niazi for the State.

This is an application for release on bail of Hayat and Siddiq who alongwith two others, namely Muhammad and Rafiq have been charged for the murder of Hidayat deceased. The case was registered at the instance of Mst. Manzooran a sister of the deceased within three hours of the incident. According to the first information report, the petitioners were empty-handed. Hayat had allegedly shouted 'lalkara' exorting Mohammad and Rafiq to kill the deceased. Siddiq is said to have held the deceased in his grip when lie was dealt injuries by the remaining two accused with hatchets in their hands. The deceased had suffered 5 injuries in all at the hands of Muhammad and Rafiq and died instantaneously. Both the petitioners were held innocent by the investigating Officer but the question of their guilt or innocence was left to the decision of the Court as eye-witnesses in the case had persisted in their allegations against the petitioners that they had accompanied the actual assailants to the site and had also participated in the occurrence as indicated in the foregoing lines. The application made by the petitioners before learned Sessions Judge, Sheikhupura was rejected by an Additional Sessions Judge on the ground that the petitioners were named in the First Information Report which was lodged without any delay and they had also been sent up Or trial.

Learned counsel for the petitioners contended that the opinion of Investigating Officer although not, binding on the Court is not merely a relevant circumstance but an important consideration for grant of bail no matter that the Investigating Officer had avoided responsibility of passing order for discharging the petitioners. The opinion of the Investigating Officer that 0e accused was charged falsely should put one on enquiry as to the veracity of the prosecution case. Case of such accused would be that of further inquiry under subsection (2) of section 497, Cr. P. C. unless some new facts or material which countered the opinion of Investigating Officer came to the notice of the Court. Such cases call for a dispassionate and cautious approach in the disposal of application for bail. The accused will suffer irreparably if he were refused bail and eventually result at the trial were also the same. The earlier part of the argument is based on the observations of their Lordships of Supreme Court in Rehmatullah v. State (1970 S C M R 299). However, it is not necessary that in each case the opinion of Investigating Officer must be preferred to the version of eye-witnesses in the case. The Court seized of the application for bail can come to a different conclusion. The dictum laid down in the above case was distinguished in a recent case of Gul Ahmad v. Massam Khan (1977 S C M R 27). It was further argued that Hayat was attributed proverbial Lalkara' which is generally not believed by the Courts unless further overt act was attributed to the accused or the accused had played some significant role in the background of the affair leading to the incident. There was nothing to prevent Hayat from joining Mohammad and Rafiq in causing injuries to the deceased if he were present at the site. Muhammad and Rafiq needed no assistance of Siddiq for causing injuries to the deceased who was unarmed and was taken unaware of by the accused. Such allega tions are levelled to throw a wide noose so as to rope in a larger number of persons. Tire question what weight be attached to the opinion of the Investigating Officer should be considered in the context of these facile allegations against the petitioners. These contentions have a persuasion in them and lead me to the view that on the allegations against the petitioner as noted above coupled with the fact that they were also declared innocent by the police, the case against them was that of further enquiry under subsection (2) of section 497 Cr. P. C. Bail allowed in the sum of Rs. 10,000 (Ten thousand) with two sureties each with personal bonds in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Sheikhupura.

Bail allowed.

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