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Criminal Miscellaneous No. 2779-B of 1983, decided on 5th December, 1983.

-- S. 498-Penal Code (XLV of 1860), S. 302/34-Bail-Opinion of Investigating Officer not binding on Court yet being adverse to prosecution, held, would be a relevant consideration for deter mination of application for grant of bail.

Muhammad Yameen v. The State 1977 P Cr. L J 387 rel.

-- S. 498-Penal Code (XLV of 1860), S. 302/34-Bail-Investi gating Officer of opinion that accused was not present at place of occurrence and question of their guilt requiring further inquiry Accused an educated person holding Class I post in Government Facts of case demanding grant of pre-arrest bail-Interim bail confirmed.

Ch. Muhammad Anwar Bhinder for Petitioner.

Muhammad Siddiq Chughtai for the Complainant.

Nasim Iqbal for the State.

Date of hearing : 5th December, 1983.

This is an application for grant of pre-arrest bail, by the petitioner who alongwith three others has been hauled up in a case registered under section 302/34, P. P. C. for the murder of two persons namely Muhammad Sharif and Hashmat.

2. In the F. I. R., the role attributed to the petitioner is that while armed. with a *12 bore gun he fired at Muhammad Sharif who. was fatally hit on his chest and neck. The petitioner's application for bail before arrest was disallowed by the learned Additional Sessions Judge, Sialkot, on the ground that he is principal accused and a specific role has been attributed to him.

3. The case in the first instance was investigated by some Sub- Inspector. Police who found the petitioner as guilty. The investigation was then conducted by the D. S. P. Daska in whose opinion, the petitioner is innocent. On the complainant's move, the investigation was then transferred to A. S. P. Sialkot. The latter also came to the conclusion that the petitioner is not the assailant and that at the time of occurrence he was in the house of one Muhammad Iqbal.

4. I have heard the learned counsel for the petitioner, the complai nant and also for the State. Bail is solicited on the plea that as a result of two investigations conducted by senior Police Officers, the petitioner has been declared innocent ; he is employed as Class-I Officer and has been falsely roped in alongwith other members of his family, to deprive the latter of the effective defence of their case at the hands of the petitioner. According to the learned counsel the petitioner had no motive to commit the offence and that this is a case for further inquiry into his guilt. He has also cited some case-law in support of his submissions.

5. In opposition to the bail, the learned counsel for the complainant adopted the reasoning which influenced the decision of the learned Addi tional Sessions Judge. He submitted that the petitioner is closely related to Habib Ullah who was candidate in the election. The motive to commit the offence was there. In his submission, the petitioner is not only named in the F. I. R. but he is the principal accused who caused the death of Muhammad Sharif. He also endeavour to cast suspicion on the peti tioner's plea of alibi by pointing out that the stand took by him before the A. S. P., did not march with the recital made in Criminal Miscellaneous No. 2612-8183. It was further urged that grant of pre-arrest bail would frustrate the recovery. Reference was also made to Muhammad Yameen v. The State (1977 P Cr. L J 387) and unreported decision dated 12th November, 1983 rendered by a learned Single Judge of this Court in Criminal Miscellaneous No. 2688-11/83, to contend that there is no justification for allowing pre- arrest bail in a case involving punishable with death or transportation for life.

6. It is not disputed that both the D. S. P. Daska and A. S. P. Sialkot found the petitioner as innocent. As laid down in Rehmat Ullah v. The State (1970 S C M R 299) and Sardar Khan. v. The State (1943 P Cr. L J 2226), the opinion of the investigating Officer is not binding on the Court yet it being adverse to the prosecution, would be a relevant consideration for determination of the application for grant of bail. The opinion of the D. S. P. and the A. S. P., lends support to the petitioner's submission that there are sufficient grounds for further inquiry into his guilt.

7. The case being at the bail stage, the evaluation of the petitioner's plea of alibi is to be avoided and it would suffice to observe that in the opinion of the two Investigating Officers, the petitioner was not present at the place of occurrence. Since the prosecution itself considers the petitioner to be an innocent person, the question of making any recovery from him would hardly arise. The two precedents relied upon by the learned counsel for the complainant have no bearing on the facts of the case.

8. The petitioner is an educated person and holds Class-I post under the Provincial Government. His plea is that he has been roped in with an ulterior motive. Upon the facts of the case, I consider it a fit case for f pre-arrest bail. Accordingly the interim bail granted to the petitioner on 12th November, 1983 is confirmed.

Interim bail confirmed.

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