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Criminal Miscellaneous NQ. 1869/B of 1979, decided on 19th June, 1979

--‑‑S. 497‑Bail‑[Murder‑case]‑Opinion of Investigating Officer, although a relevant consideration for decision of application for bail yet not binding on Court and Court may on consideration of material available come to a different conclusion‑Proposition that opinion of Investigating Officer must always be given weight and preference to evidence in hands of prosecution against accused, held, not a general rule of law.

Rehmatullah alias Rehma v. The State 1970 S C M R 299 ; Muhammad Abbas alias Bassa and 9 others v. .The State 1971 P Cr. L J 9 , Khushi Muhammad etc. v. The State 1978 S C M R 361) ; Mehr Din and another v. The State P L D 1979 Lab. 505 ; Etbar Khan and another v. The State 1977 P Cr. L J 114 ; Mohammad Sajjad v. The State 1977 P Cr. L J 219; Ch. Barkat Ali v. The State P L D 1979 Lab. 518 and Gul Ahmed v: Massam Khan and 3 others 1977 S C M R 27 ref.

Wasim Sajjad for Petitioner.

Sh. Islam‑ul‑Haq for the State.

Yusuf Ali Khan, Barrister‑at‑Law for the Complainant.

Date of bearing: 16th June 1979.

This is an application for grant of bail to Muhammad Hanif accused in a case for the offences under section 302/307/34, P. P. C registered on 2nd November 1977, at Police Station, Pattoki under F. I. R. No. 253. According to the report which was lodged within about an hour of the incident, the petitioner had fired at Mst. Sharifan with a gun in his hand hitting her in the face while his co‑accused, namely, Sharif and Shaukat had fired one shot each at Muhammad Rashid a brother of Mst. Sharifan as a result of which he died instantaneously.

This is third round of proceedings for release on bail of the petitioner The first application (CrI. Misc. 887‑B‑78) was rejected on 24th June 1978. Petition for Special Leave to Appeal against the order in the said applica tion was dismissed by Supreme Court on 3rd August, 1978. Subsequently, petitioner was allowed bail by learned Sessions Judge, Kasur, by means of order dated 27th August 1978 on a technical ground of non‑submission of challan. The complainant in the case, filed application for cancella tion of bail of the petitioner (Crl. Misc. No. 3766‑B‑1978) which was accepted on 3rd February 1979. Petition for Special Leave to Appeal against the order in this application was also rejected by Supreme Court on 21st February 1979. It will be seen that the question for grant of bail to the petitioner on merits stands decided conclusively.

Application for bail to the petitioner was renewed before learned Sessions Judge on the ground that during re‑investigation of the .y by Crimes Branch Lahore, the petitioner and his father Haji Rahmatullah who was released on bail on 20th May 1978 on grounds of old age (Crl. Misc. No. 887‑B‑78) were adjudged innocent and placed in Column No. 2 of supplementary challan. The application was rejected by learned Sessions Judge on 22nd May 1979 after an elaborate discussion of the grounds on which the Investigating Officer had based his opinion declar ing the petitioner innocent.

2. Learned counsel for the petitioner contended that in view of the report of Investigating Officer, the case against the petitioner was that of further enquiry under subsection (2) of section 497, Criminal Procedure Code and he should not be denied the concession of bail, more particular ly for the reason that the petitioner had allegedly fired at Mst. Sharifan alone and was made liable vicariously for the murder of the deceased who is said to have been shot down by other two accused in the case, namely, Mohammad Sharif and Shaukat. Learned counsel for the petitioner has cited following authorities in support of his contention

(1) Rehmatullah alias Rehma v. The State 1970 S C M R 299.

(2) Mohammad Abbas alias Basaa anti 9 others v. The State 1971 PCr.LJ9.

(3) Khushi Mohammad etc. v. The State 1978 S C M R 360.

(4) Mehr Din and another v. The State P L D 1979 Lab. 505.

3. It is an established proposition of law that opinion of Investigating Officer though a relevant consideration for decision of applications for bail is not, however, binding on the Court. Court may on considera tion of material available come to a different conclusion as learned Sessions Judge bad done in this case. It is not, therefore, a general rule of law that opinion of Investigating Officer must always be given weight and preference to the evidence in the hands of prosecution against the accused. The question of weight to be attached to the opinion of Investi gating Officer should, therefore, turn on circumstances of a given case. There is no dearth of cases in which opinion of Investigating Officer declaring the accused guilty was not accepted as a valid ground for release of the accused on bail. Some of these authorities cited on behalf of the respondent (complainant) are

(1) Etbar Khan and another v. The State 1977. P Cr. L J 114.

(2) Mohammad Sajjad v. The State 1977 P Cr. L J 219.

(3) Ch. Barkat Ali v. The State P L D 1979 Lah. 518.

I am not tempted to launch upon an elaborate analysis of the reasons stated by learned Sessions Judge in rejecting the opinion of Investigating Officer nor a detailed discussion of the judgments relied on by either side for the reason that the case has been set down for trial during the last week of next month (July 1979). Reference be, however, made to the judgment of Supreme Court in Gul Ahmed v Massam Khan and 3 others(1970 S C M R 299). In that case three accused who were on subsequent investigation found to have been falsely implicated were admitted to bail by High Court Peshawar on the basis of judgment of their Lordships in Rehmatulla's case. The case of Rehmatullah was distinguished in that case, and the order of High Court releasing the accused on bail was set aside with the observation that mere fact that the C. I. A. Staff in a subsequent investigation held the respondents innocent, would hardly constitute a valid ground for their enlargement on bail in the circum stances of the case. Their Lordships also struck a note of caution against indiscriminate invocation of authorities of. Supreme Court which by and lame Proceeded on the peculiar facts of each case application rejected.

4. Learned Sessions Judge has reported that the case could also be fixed during last week of the current month. Learned Counsel for the complainant had also said that acceleration of dates of hearing will suit him as he was scheduled to leave for abroad on 9th July 1979 for medical treatment. Learned Sessions Judge is advised to fix the case on 27th June, 1979 for trial subject, of course, to availability of defence counsel in the case.

Appeal dismissed.

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