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Criminal Miscellaneous No. 8381B of 1984, decided on 11th April, 1984.

---S. 497--Penal Code (XLV of 1860), S. 302--Bail, grant of--Statement of large number of persons having their shops or residences around place of occurrence recorded who testified to innocence of petitioners and stating that they were not present at time of occurrence--Fact also independently verified by D.S.P./Incharge and petitioners found innocent--Finding of innocence by Police, held, based upon sound material and case against petitioners that of further inquiry--Petitioners allowed bail, in circumstances.

1984 S C M R 429 ref.

1983 S C M R 199 distinguished.

C.M. Latif Rawn for Petitioners.

Muhammad Amjad Butt for the State.

A.W. Butt far the Complainant.

Abdul Majid complainant on 19-2-1984, lodged F.I.R. regarding the murder of his son Khalid Mahmood and injuries caused to his maternal uncle Abdus Samad. It was stated by him that he was proceeding to meet Abdus Samad from his house and when he reached Chowk C.I.A. Staff in Sargodha city, he found Abdus Samad injured and Khalid Mahmood deceased present near the house of one Muhammad Sharif. Meanwhile he saw Bashir accused alongwith Shabbir and Muhammad Hussain petitioners arriving there. Muhammad Bashir accused was armed with Chhuri while Shabbir and Muhammad Hussain had knives in their hands. They attacked Abdus Samad and Khalid Mahmood. Bashir accused gave the first Chhuri blow on the chest of Khalid Mahmood. Thereafter, Shabbir petitioner gave knife blow on the left arm of Khalid Mahmood. Bashir accused, then gave Chhuri blow on the chest and abdomen of Abdus Samad while Muhammad Hussain petitioner gave one knife blow on the right arm of Abdus Samad. They both fell down and the occurrence was witnessed by Ehsan-ul Haq and Muhammad Aslam besides the complainant. The injured were taken to the hospital where Khalid Mahmood succumbed to injuries while Abdus Samad was admitted in the Hospital. The motive was stated to be that Shabbir accused was given beating by Abdus Samad P.W. as earlier his son Bhola had been beaten by Shabbir accused. The police undertook investigation after registration of the case and arrested all the three accused named in the F.I.R. The two petitioners Shabbir and Muhammad Hussain unsuccessfully applied for bail before the learned Sessions Judge, Sargodha.' Hence this petition.

2. The only ground on which this petition is pressed is that the two petitioners were found innocent by the police during investigation and this finding of police was based on sound material and cogent reasons. In support of this contention, learned counsel has relied upon 1984 S C M R 429. Learned counsel for the State as well as the learned counsel appearing on behalf of the complainant has controverted this argument and relying on 1983 S C M R 199 have contended that it was not a case of bail simply' for the reason that the petitioners have been declared innocent by the police. It is contended on their behalf that Shabbir petitioner has been specifically attributed one injury to the deceased. It is, therefore, argued that the petitioners are not entitled to the concession of bail.

3. So far as the case law cited as 1983 S C M R 199 is concerned, I may observe that the same is not attracted to the facts of the present case. In that case, the learned Additional Sessions Judge, Gujrat had allowed bail by misreading of the record. An application for cancellation of bail was moved in the High Court which was consequently accepted. The petitioners went up for bail before the Supreme Court of Pakistan but it was declined with a finding that the order of cancellation of bail by the High Court was proper and had been passed after attending carefully and in detail every aspect of that case. In this very case, the learned Judges of the Supreme Court observed that the High Court had examined at length the material available on the record. In view of the fact that the case cited by the learned counsel for the complainant was primarily based on the finding of misreading of facts, it is not attracted to the facts of this case. The case law reported as 1984 SCMR 429 relied upon by the learned counsel for the petitioners is applicable to the facts of the present case. In this case, the accused were allowed bail by the High Court and the complainant filed a petition seeking leave to appeal against grant of bail to two of the accused of that case. The facts of the case were that during investigation, three successive Investigating Officers had found the accused of that case innocent. It was observed by the learned Judges of the Supreme Court that the relevancy to the question of bail of the opinion of Investigating Agency in regard to the complicity of an accused will depend on the soundness of the material upon which it is based.

4. I have myself gone through the entire case diary of this case. In Zimni No.7 dated 26-2-1984, Muhammad Akram Inspector recorded the statements of a large number of persons in defence of the accused. Some of these persons were shopkeepers having their shops close to and in the vicinity of the place of occurrence. They all stated before the police that only Bashir accused was involved in the present case while Shabbir and Muhammad Hussain accused were not present at the time of occurrence and that they themselves had seen the occurrence. One Haji Sher also deposed to this effect by saying that he had witnessed the entire occurrence by sitting on the roof of his house. However, Muhammad Akram Inspector did not come to a final conclusion and kept the case pending for his further satisfaction. On 7-3-1984, he held further investigation in the matter and recorded the statements of more persons who were having their shops or residences around the place of occurrence. He finally concluded that Shabbir and Muhammad Hussain petitioners were innocent. This fact was verified by the D.S.P. Incharge of the Circle on 18-3-1984. He also held independent investigation and concluded that both the petitioners were innocent and not present at the place of occurrence. Finally on 20-3-1984, it was recommended by the Inspector that the case against them be cancelled. I have gone through the entire police diary and find that the finding of innocence by the police is based upon sound material. In this view of the matter, the case against the present petitioners is that of further inquiry. Both of them are allowed bail on their furnishing bail bonds in the sum of Rs. 30,000 (thirty thousand) each with two sureties each in the like amount to the satisfaction of A . C . , Sargodha.

S.G.D. Bail granted.

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