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Criminal Miscellaneous No.837-B of 1983, decided on 23rd July 1983.

---S.497/498--Penal Code (XLV of 1860), Ss.148,302,307/149--Bail--Accused causing no injury to deceased and having no direct motive to attack him--Investigating Officer/A.S.P. finding accused innocent and his case requiring further inquiry--Bail granted.

---S.497/498--Penal Code (XLV of 1860), Ss. 148,302,307/149--Bail- Opinion of Investigating Officer as to innocence or otherwise of an accused although not admissible in evidence yet such opinion, held, can be given sufficient weight at bail stage.

Moeen-ud-Din Chaudhri for Petitioner.

Syed Zawar Shah for Complainant.

Shahid Latif for State.

This bail petition has been moved on behalf of Bashir Ahmad, who was reported against alongwith Harif, Sajjid and Rashid by Muhammad Aslam complainant at Police Station Arifwala on 15th September, 1982 alleging that Ejaz Rasul injured P.W. and Muhammad Sharif deceased in the company of Shamshad, Rashid and Muhammad Aslam complainant were going to their Chak No.19/EB in a Tonga driven by Suleman, which was stopped by the petitioner and his co-accused, who were armed with Churris. All of them in furtherance of their common intention fell on Muhammad Sharif and Ejaz Rasul. Hanif gave Churee blow in the abdomen of Muhammad Sharif, who died instantaneously at the spot, Hanif, Sajjid, Rashid and the petitioner (Bashir) dealt Churri blows to Ejaz Rasul P.W. while two unknown persons dealt him stick blows. Ejaz Rasul was removed to the hospital in an injured condition, where he was admitted for treatment. The doctor observed 12 injuries on his person. Of them one abdominal injury was found grievous. All the assailants including the petitioner have been named in the F.I.R. and were arrested under sections 148, 302, 307 read with section 149, P.P.C. The case was investigated besides the local police by Additional Superintendent of Police, Pakpattan. 2. The prosecution case has been largely supported by the complainant, the tonga driver Suleman, Ejaz Rasul injured P.W. Shamshad, Muhammad Aslam and Rashid eye-witnesses named in the F.I.R. Ejaz Rasul injured P.W was examined by a Magistrate and recorded his dying statement though he ultimately survived. In this statement Bashir Ahmad petitioner is stated to be armed with a hatchet at the time of occurrence. A.S.P. Pakpattan as a result of his investigation declared Bashir Ahmad petitioner as innocent.

3. The petitioner moved Sessions Court for the grant of bail but his prayer was declined vide order, dated 6th June, 1983, hence this petition.

4. I have heard the learned counsel for the complainant as well as for the State and also perused the record.

5. As for the participation of the petitioner in the occurrence, the A.S.P. Pakpattan held that he was not present at the relevant time and thus declared him innocent. Ejaz Rasul P.W in his dying statement averred that the petitioner was armed with a hatchet at the time of occurrence as against the version of the complainant who alleged that the petitioner had a Churri with him at the relevant time. Admittedly the petitioner did not cause any injury to Sharif deceased. Again the petitioner does not have any direct motive to attack the deceased or Ejaz Rasul P.W. No doubt that the opinion of the Investigating Officer as to the innocence or p otherwise of an accused is not admissible in evidence, yet such opinions, at bail stage are often given sufficient weight. In view of the finding of A.S.P. I feel hesitant in accepting the ipse dixit of the prosecution and find that the case of the petitioner in the circumstances mentioned above is covered by subsection (2) ;of section 497, Cr.P.C. as it requires further inquiry into the guilt or otherwise of the petitioner. Consequently I allow this petition. The petitioner is directed to be released on bail subject to his furnishing bond in the sum of Rs.20,000 (Rupees twenty thousand only) with one surety in the like amount to the satisfaction of the Assistant Commissioner/ Duty Magistrate, Sahiwal.

M. Y. H . Bail granted.

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