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Criminal Petition for Special Leave to Appeal No. 388 of 1985 (Criminal Appeal No. 67 of 1985), decided on 16th October, 1985.

(Against the order of the Lahore High Court, Lahore, dated 17‑7‑1985, passed in Criminal Miscellaneous No. 2194‑B of 1985).

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail‑‑Accused stated to have taken active part in attack on deceased and firing a fatal shot on him with their respective arms‑‑Bail, held, rightly refused by High Court in circumstances.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail‑‑Fact that some of witnesses examined by Investigating Officer after filing incomplete challan exonerating accused, held, could not be said to be last word‑ Investigating Officer could not be a judge‑‑Innocence and guilt of accused had to be adjudged by trial Court after recording evidence of witnesses produced by parties and evaluating same.

A.K. Brohi, Advocate Supreme Court and Fazal‑i‑Hussain, Advocate‑on‑Record for Petitioners.

M.N. Abbasi, Assistant Advocate‑General, Punjab for the State.

Muhammad Aslam Chaudhry, Advocate‑on‑Record with Ijaz Hussain 'Batalvi, Advocate Supreme Court with M.A. Zafar, Advocate Supreme Court for the Complainant.

Date of hearing: 18th October, 1985.

Imtiaz, Maula‑i‑Hassan, and Hassan Khan, petitioners, have applied for leave to appeal against the order of the High Court, dated 27‑7‑1985, dismissing their bail application in a murder case.

2. Counsel for the Respondent‑ Caveator was present on the first date of hearing, we issued notice to the Advocate‑General, Punjab in response whereto the learned Assistant Advocate‑General is also present today. After hearing the learned counsel for the parties and the Assistant Advocate‑General, we convert the petition into appeal and proceed to dispose it as such.

3. The three petitioners alongwith 9 others are accused of the murder of Sultan Ahmad. Two of the accused, namely Talat Mahmood, a Superintendent of Police and his maternal‑uncle Hamid Ullah, are said to have instigated the murder.

4. The motive for the occurrence is stated to be that Bashir Ahmad, father of Talat Mahmood accused, harboured a grievance against Sultan Ahmad deceased for opposing the former in the 1961 B.D. Elections. On 19‑7‑1963, one Riaz son of Ismail, a resident of Village Ajnala, was murdered. It is alleged that his murder was engineered by Talat Mahmood, son of Bashir Ahmad, and his maternal‑uncle Hameedullah, Deputy Director, Food (both accused in the present case). But they nevertheless managed to have a case registered against the deceased and several other members of his party for Riaz's murder. Thereafter, said Talat Mahmood and Hamidullah tried to have the deceased murdered several times and ultimately succeeded on 30‑11‑1984, when the present occurrence took place.

5. The facts of the case according to the F.I.R. briefly is, that the three petitioners and six others, who were allegedly armed with shot‑guns, along with Nasrullah accused, who was armed with a rifle, attacked and murdered Sultan Ahmad deceased at about 1‑30 p.m. on 30‑11‑1984, in Chak No. 27, Shamali, Sargodha. It is alleged that during the incident in question, Maula‑i‑Hassan petitioner fired at the deceased with his shot‑gun, which hit the deceased on the right bicep, a second shot fired by Hassan Khan, petitioner, hit the deceased on the right of his abdomen. A third shot was fired by Imtiaz, petitioner, which also hit the deceased on the right side of his body. On receiving these injuries the deceased fell down. Rashid Mahmood co‑accused is then alleged to have fired at the deceased's forehead, whereafter all the accused left the scene of occurrence raising Lalkaras.

Except the three petitioners and Rashid Mahmood co‑accused, the remaining 8 co‑accused are already on bail.

6. The three petitioners at first applied for bail to the trial Court which was dismissed on 10‑6‑1985. They then approached the High Court for grant of bail, but their application was dismissed vide the impugned order.

Feeling aggrieved they filed a petition for leave to appeal which, as stated above, is being disposed of as an appeal.

7. We have heard the learned counsel for the parties as well as the learned Assistant Advocate‑General for the State and have also gone through the impugned judgment. The occurrence in this case took place on 30‑11‑1984 and the F.I.R. was lodged by the son of the deceased on the same day. Investigation commenced and after about two months an incomplete challan was submitted to the Court on 29‑1‑1985, in which the three petitioners were shown in Column No. 3. But subsequently, after further investigation, the same Investigating Officer (Zahooruddin, Inspector of Police) submitted the complete challan on 10‑6‑1985, holding the 3 petitioners to be innocent and placed their names in Column No. 2.

8. While hearing the petitioners' bail application the learned Chief Justice of the High Court noticed that the same Investigating Officer who had earlier placed the three petitioners in Column No. 3 had arrived at a totally different conclusion after sometime. He, therefore, called the said Investigating Officer and inquired about the reason for the change in his view, but not being impressed by the explanation given by the Investigating Officer he dismissed the petitioners' bail application vide the impugned judgment.

9. The learned counsel for the petitioners urged that the learned High Court has been unduly influenced by the fact that the same Investigating Officer who had placed the three petitioners in Column No. 3 in the first challan, after the lapse of about 4‑ months declared them innocent and placed them in Column No. 2.

He pointed out that the first challan was an incomplete one, which obviously meant that further inquiry or investigation into the matter was still to be made and that after recording the statements of some more witnesses, the Investigating Officer was justified in arriving at a different conclusion on the basis of fresh material brought on the record through further investigation. He urged that it was not correct to presume any mala fides on the part of the investigation.

10. The learned Assistant Advocate‑General supported the order of the High Court and opposed the grant of bail.

11. The learned counsel for the complainant urged that apart from the fact that the Investigating Officer had altered his opinion without any sound basis, his ipsi dixit is not binding on the Court and that the High Court was, therefore, empowered to refuse bail notwithstanding the fact that the police had found the accused‑petitioners to be innocent.

12. We have carefully considered the matter in the light of the arguments advanced by the learned counsel for the parties and the previous case law on the subject of which we are fully aware.

13. As mentioned earlier in the narration of facts the three petitioners have been alleged by the complainant and the eye‑witnesses to have taken active part in the attack on the deceased and fired the fatal) shots on him with their respective fire‑arms. The fact that some of the witnesses examined by the police after the filing of the incomplete challan exonerated the petitioners, cannot be said to be the last word and the learned High Court rightly observed that the Investigating Officer could not be the 'Judge' and held that the innocence or guilt of the accused would be adjudged by the trial Court after recording the evidence of the eye‑witnesses produced by the parties and evaluating) the same.

14. Considering that the accused have been attributed a positive and active role in the murder inasmuch as they are alleged to have effectively fired at the deceased causing injuries which resulted in his death, the High Court was justified, in the circumstances of this case, to have refused bail to them.

In this view of the matter we do not consider it proper for this Court to interfere in the exercise of discretionery jurisdiction by the High Court, which we respectfully feel, has been properly exercised.

The appeal is consequently dismissed.

M . Y . H . Appeal dismissed.

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