Petitioners Nisar Ahmad alias Shari and Mushtaq alias Bhola through the instant petition have sought for post-arrest bail in case FIR No, 522 dated 09.08.2003 under Section 302 read with Section 34 PPC registered with Police Station Sadar, Kasur.
2. Briefly the prosecution case as per FIR is that on 09.08.2003 at about 08:30 a.m. Nisar Ahmad alias Shari (Petitioner No, 1), Mushtaq Ahmad alias Bhola (Petitioner No, 2), Ishaq, Tufail alias Dogar armed with lethal weapons on the lalkara of Muhammad Ishaq have committed' the Qatal-e-Amd of the complainant's brother Nazir Hussain. Nisar Ahmad alias Shari had fired with rifle hitting on his thigh above the right knee. Mushtaq Ahmad had fired with rifle hitting on his male organ. Ishaq and Muhammad Tufail remained raising lalkaras and firing indiscriminately at him when he was lying on the ground.
3. The motive behind the occurrence is previous grudge between the parties and also on account of pursuing of two criminal cases of. the complainant party.
4. It has been contended on their behalf that they have falsely been roped in; that during the four successive investigations they were declared innocent and then ultimately on the order of the DIG, Lahore the 'investigation was entrusted to the DPO, Lahore who expressed similar opinion regarding them and he directed the local police to prepare the report for their discharge in the case and it was prepared but the same was not agreed to by the learned Magistrate concerned; and that due to the finding of their innocence in the consecutive five investigations, their case has become one of further inquiry into their guilt and in this regard reliance has been placed upon the cases of Kalu etc. v State (PLJ 1999 Cr.C Lahore 200) and Sher Muhammad and two others v. The State and 4 others (1994 SCMR 459); and that they are behind the bars and previous non convicts.
5. Conversely the learned State counsel assisted by the learned counsel for the complainant has opposed the petition on the ground that they are named in the FIR; that it was a broad daylight occurrence; that the eyewitnesses have supported the prosecution version completely; that the police opinion regarding their innocence is mainly based upon the statement of two persons namely Muhammad Jamil and Niaz Ahmad and alone on the basis of the same when there was ample material on the record to link them up with the allegation against them, they could not be declared innocent and so they are not entitled to any indulgence by this Court and in this regard reference has been made to the cases of Aitbar Khan and another v. The State (1977 P.Cr. L.J.
Lahore 114) and Liaqat Ali v. The State (PLD 1994 Supreme Court 172); and that the complainant having felt himself aggrieved of the finding of their innocence recorded by the different police officers had brought private complaint in which they have been summoned and this also suggests that there exists prima facie case against them.
6. I have carefully considered the submissions made by the learned counsel for the parties with the-help of the available record.
7. There is no denying the fact that the petitioners during the 1 investigation by five different police officers have been declared innocent in the case. It has been found that in these investigations, it come to light that the deceased was murdered by some un-known persons during the dacoity.
8. It has also been found from the police record that DPO, Kasur on the conclusion of the investigation at his end has directed the SHO concerned to prepare report for their discharge from the case and it accordingly was prepared though not agreed to by the learned Magistrate concerned. There when is available the opinion of five different police officers in the investigation of their innocence in the case and ultimately the report for their discharge from the case had 'been brought forth before the Court, it appears that there is no reason to believe that they have committed a non-cognizable offence and rather there' is ground for further inquiry into their guilt, particularly when such opinion has been based upon the sound material available on the record. It was not only on the basis of statement 'of Muhammad Jamil and Niaz Ahmad but also of the other persons during the investigation. So, their case amply falls within the purview of sub-section (2) of Section 497 Cr.P.C. However, it may be mentioned here that though opinion of the police is not binding upon this Court but still it is a relevant circumstance to be taken into consideration while deciding the question of grant or otherwise of bail to them. In this regard reliance is placed upon the cases of Kalu etc. v. State (PLJ 1999 Cr.C.
Lahore 200) and Sher Muhammad and two others v. The State and 4 others (1994 SCMR 459).
9. As regards the case law referred to by the said of the prosecution, the same is' not aptly applicable to the facts and circumstances of the case. In the case of Liaqat Ali v. The State (PLD 1994 Supreme Court 172), the opinion of innocence of the accused was expressed by two investigating officers and it was merely on the oral testimoney of certain defence witnesses. In the instant case, the position is somewhat different inasmuch as that such opinion has been expressed by the five police officers of the different ranks including the one DPO and ultimately the report for their discharge from the case was prepared though it was not agreed 'to by the learned Magistrate concerned. In the case of Aitbar Khan and another v. The State (1977 P.Cr.L.J. 114 Lahore), the bail was declined to the petitioners/ accused mainly on the reason that the finding of the petitioners/accused therein was expressed by one police officer though affirmed by his supervisory officers. In the instant case, the position is different as indicated above.
10. It may also be mentioned here that precedent in a criminal case will be applicable only when it will be on fours to it.
11. In these circumstance, I find them entitled to bail. The petition, therefore, is accepted and they are admitted to bail subject to their furnishing of bail bonds in the sum of Rs, 1,00,.000/- (Rupees one lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.