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Criminal Miscellaneous No.3155-B of 1986, decided on 7th December, 1986.

---S. 497--Penal Code (XLV of 18605, S. 302/34--Bail, grant of--Accused found innocent by Police--Opinion of Investigating Officer based on affidavits of many people including shopkeepers near place of occurrence--Investigation verified and found correct by Deputy Superintendent of Police--Opinion of Investigation Officer based on sound material and as such no reasonable ground existed to believe that accused had committed non-bailable offence--Bail granted in circumstances.

Ch. Muhammad Yamin for Petitioners.

Zafar Pasha Chaudhry for the Complainant.

Bashir Mirza for the State.

This is a petition for bail on behalf of Zahoor Ahmad and Abdul Wahid who are charged with the murder of Muhammad Hussain at 12-30 p.m. on 9-8-1986 near Chowk Barafkhana in Sharaqpur Town.

2. The prosecution case in brief is that at the time of occurrence Mahmood Ahmad complainant, his father Muhammad Hussain, Nazir Ahmad and Muhammad Arshad P.Ws. came to Sharaqpur to purchase cement. They left the tractor near the shop of Hafiz Majeed and proceeded to Bazar on foot. When they reached near Chowk Barafkhana, Nazir. Zahoor Ahmad, Abdul Wahid and Jameel accused armed with guns came there. Nazir Ahmad challenged and fired hitting on the chest of Muhammad Hussain. Jameel fired two shots on the left knee and right flank of Muhammad Hussain who fell down. Thereafter, Abdul Wahid and Zahoor Ahmad fired at Muhammad Hussain. The accused then left the spot with their weapons. The motive was stated to be the previous murder enmities between the parties.

3. This petition is pressed only on the ground that Zahoor Ahmad and Abdul Wahid accused were found innocent during investigation and placed in column No.2. This petition has been opposed by the learned counsel for the complainant and the State.

4. I have perused the police diary in this case. The Investigating Officer recorded Zimni No.3 on 11-8-1986 and obtained affidavits of Khairat Ali, Sardar Ali, Muhammad Yousaf, Mushtaq Ahmad whose shops were close to the place of occurrence. He also obtained affidavits of Hafiz Shujaat Hussain, Malik Muhammad Arif, Dr. Muhammad Hanif, Ch. Barkat, Mian Javed, Sh. Maqsood Ahmad, Malik Safdar Ali Councillors and Malik Ahmad Saeed Chairman Town Committee in support of the innocence of the two petitioners. Ch. Nazir Ahmad Virk, Advocate also filed affidavit to assert that Hafiz Nazir Ahmad accused named in F.I.R. was present in his chamber at 11 a.m. on the day of occurrence at Sheikhupura. He was supported by Bashir Ahmad Malik. Advocate in this behalf. Bashir Ahmad, Muhammad Younas and Barkat Ali filed affidavits to prove the alibi of the two petitioners. After receiving the affidavits of the above-mentioned persons and after recording statements of a large number of persons, the Investigating Officer opined that the two petitioners and Hafiz Nazir Ahmad accused were innocent. This investigation eras verified by the D . S. P. on 4-9-1986 who while recording Zimni No. 19 agreed with the Investigating Officer and declared the two petitioners and Nazir accused, innocent. He directed that they be placed in column No.2 of the challan.

The learned counsel for the complainant argued firstly that the two petitioners have been attributed specific injuries to the deceased Muhammad Hussain; secondly, that it was not possible for one accused namely Jamil alone to cause all the injuries on the person of the deceased and thirdly, that the challan has already been filed in Court and as such the petitioners be not allowed bail.

I have considered the respective contentions on behalf of the parties. A perusal of the police diary clearly indicates that the two petitioners were found innocent by the police on sound material. Apart from many persons, some shopkeepers who owned their shops near the place of occurrence have also stated in their affidavits that only one accused had fired at Muhammad Hussain deceased and that no other accused was present at that time. I have also seen the post-mortem report which indicates that Muhammad Hussain deceased in all received 14 injuries on his person. Injuries 13 and 14 were abrasions on the left and right knee joints, and the remaining injuries have been caused by fire-arm. Out of these injuries only 7 wounds are inlet wounds while the remaining injuries are exit wounds. As the challan has already been filed in Court I need not express any opinion on merits nor such expression is necessary because this petition is being pressed only on the basis of the finding of innocence by the police. It is correct that the petitioners have been attributed specific injuries to the deceased but as held in Ibrahim v. Hayat Gul 1985 S C M R 382 that fact could not be considered as bar to grant of bail to the petitioner. It was held by their Lordships that "this provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that there are no reasonable grounds for believing that the accused has committed a non-bailable offence". In my view the opinion of the Investigating Officer as verified by the D.S.P. is based on sound material and as such there appears no reasonable grounds for believing at this stage that the two petitioners have committed a non-bailable offence. I, therefore, admit Zahoor Ahmad and Abdul Wahid petitioners to bail on their furnishing of bail bonds in the sum of Rs.20,000 with two sureties) each in the like amount to the satisfaction of A . C . /Duty Magistrate, Ferozewala District Sheikhupura.

S. A. Bail allowed.

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