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Criminal Miscellaneous No. 1470/B of 1985, decided on 30th July, 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 109/148/302/307/149‑‑Bail, grant of‑‑Accused having been challaned and implicated as accused persons‑‑Same accused after six months found innocent and placed in column No. 2 by same Investigating Officer‑‑No cogent reasons having been given for arriving at second conclusion‑‑Only reason given by Investigating‑ Officer being crime empties not matching with guns recovered from accused‑‑Investigating Officer, held, could not be a judge and there was no reason why he should have changed his opinion‑ Case not found fit for bail,.

Muhammad Sadiq v. Sadiq and others P L D 1985 S C 182; Ibrahim v. Hayat Gul and others 1985 S C M R 382; Waqar‑ul‑Haq v. The State 1985 S C M R 974 ref.

Shahzad Jahangir for Petitioners.

Farooq Bedar, A.A.‑G. assisted by Zahid Mahmood, for the State.

Ijaz Hussain Batalvi assisted by Ch. Inayat Ullah Cheema for the Complainant.

Date of hearing: 27th July, 1985.

This is an application for bail. A case is registered against the petitioners alongwith others under sections 302/307/148/149 and 109, P.P.C. on 30‑11‑1984 at Police Station Sadar Sargodha. It is stated that the three petitioners were armed with guns. Besides them their co‑accused, namely, Rashad was also armed with gun, Bashir Ahmed with gun. Nasarullah with rifle, Muhammad Ikhlaq with gun, Tanvir with gun, Sabir with gun and Sardar Ali with gun. Two other co‑accused, namely, Talat Muhammad and Ch. Hamidullah have been implicated on alleged conspiracy. The deceased in this case is Sultan Ahmad who happens to be the father of the complainant in the F.I.R., namely, Sarwat Nasim. According to the version given in the F.I.R. the occurrence took place in the following manner: Rashad co‑accused is stated to have raised Lalkara and fired. Thereafter Mauls‑i‑Hassan petitioner is stated to have fired at the deceased and the shot hit on the right tricaps. Then Masson Khan petitioner is stated to have fired the second shot which hit on the right flank of the deceased. The third shot is stated to have been fired by Imtiaz Ahmad petitioner which hit the deceased on his right flank. Thereafter it is 'stated that the deceased fell down on the ground. So far as the other co‑accused are concerned they went on raising Lalkara and firing. Their Lalkaras were to the effect that no one should come near otherwise he should be killed. According to the medical evidence the deceased had received three fire‑arm injuries and one injury caused with blunt weapon. The first injury that is caused with fire‑arm is alleged to have been the result of the shot of Rashad co‑accused, the third to Mauls‑i‑Hassan petitioner and the fourth apparently to Masson Khan and Imtiaz Ahmad petitioner.

2. Learned counsel for the petitioners attempted to argue that the part ascribed to Imtiaz Ahmad petitioner is not being supported by the medical evidence but it may be pointed out that the fire‑arm injuries are on the right flank or right side of the deceased and that, therefore, out of the fire‑arm injuries mentioned the possibility could not be excluded if another fire‑arm injury has also been caused on the right side of the deceased. Be that as it may, the main point which has been raised before me by learned counsel for the petitioners is this that in the second complete challan which was sent by Zahoor‑ud‑Din Inspector Police on 10‑6‑1985, he had placed the three petitioners in column No. 2 as they were found innocent in the course of investigation, i.e. that they might have not been present at the spot at the time of occurrence. In support of his reasoning learned counsel has placed reliance on Muhammad Sadiq v. Sadiq and others P L D 1985 S C 182 as well as Ibrahim v. Hayat Gul and others 1985 S C M R 382. In the first citation it is laid down that bail can be granted to accused as of right if Officer Incharge of Police Station or Court taking cognizance of the matter comes to a definite conclusion on consideration of entire material that there are no reasonable grounds for believing that accused has committed a non‑bailable offence and that accused cannot be released on bail on ground of "further enquiry" without such finding of said authorities. The second citation also reiterates the same principle.

3. On the other hand learned counsel for the complainant pointed out to me that in this particular case the first Challan which was stated to be incomplete was submitted by the same police officer, namely, Zahoor‑ud‑Din Inspector Police on 29‑1‑1985 and in that he had placed the present petitioners in column No. 3 arriving at the definite conclusion that they were implicated in the instant case. It was also submitted that in the case of two accused persons named in the F.I.R. alibi evidence was produced which was rejected by Zahoor‑ud‑Din Inspector of Police. The first challan was submitted on 29‑1‑1985 in which the A three petitioners had been named as implicated as accused in the present case and that thereafter in the second challan which was submitted by him on 10‑6‑1985 he had arrived at a different conclusion without giving any cogent reason. Learned counsel states that in this case so far as conspiracy allegation is concerned a police officer, namely, Talat Mahmood S.P. has been mentioned and that, therefore, there is apprehension on the part of the complainant side that may be the second challan submitted by Zahoor‑ud‑Din, Inspector of Police had been due to some pressure on the part of the higher police authorities. It is also pointed out by learned counsel for the complainant that how it could be possible that the same police officer, namely, Zahoor‑ud‑Din, Inspector of Police who had investigated the matter earlier would place the three petitioners in column No. 3 and arrived at the definite conclusion that they were accused persons but thereafter within a period of, say six months, arrived at a subsequent definite conclusion and placed them in column No. 2. I have inquired from the police officer as to what had transpired between this period for him to change his definite position one way or the other The only reply which has come forth is that the crime empties picked up from the spot did not match with the guns recovered. If this had been the reason he could not be the Judge and there was no reason why he should have changed his opinion. Be that as it may, learned counsel for the complainant has also placed before me Waqar -ul‑Haq v. The State 1985 S C M R 974 in which it was laid down that the opinion of the Investigating Officer as to accused persons' innocence, not being bona fide must not influence the mind of the Court.

4. I have carefully considered the arguments raised by learned counsel for both the parties and in my view without expressing any opinion about the evidence which has been collected in this case by the investigating agency, it is not a fit case for the grant of bail at this stage. The result is that this application is dismissed.

S.A. Petition dismissed.

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