' Learned counsel for the petitioner submits that petitioner was not named in the F.I.R. He was not present at the spot, there is no evidence of abetment and conspiracy against him and that the petitioner, being on leave from 22-7-2003 to 25-7-2003 was not present at the spot and was away to Murree in connection with engagement ceremony of his niece. Further submits that though challan against the petitioner has been submitted in Court but the trial will consume a lot of time because firstly proceedings under section 512, Cr.P.C. To be completed in respect of absconding accused and secondly till today no sanction has been granted for prosecution of the accused.
Learned counsel lastly submits that after investigation, the police has concluded that it was not a case under section 302, P.P,C. But one under section 322, P.P.C., being a case of Qati-bis-Sabab.
2. Mr. Muhammad Hanif Khatana, learned Additional Advocate-General submits that in the F.I.R., it has been specifically stated that occurrence had taken place due to active connivance of the Jail Authorities because without their connivance, ammunition could not have reached inside the jail and that the petitioner being Superintendent of the Jail was Incharge of the Jail. Further submits that there is evidence of 7 witnesses including a lawyer, doctor of the jail and head warder and other accused persons confined in the jail at the relevant time. Learned Law Officer after having read before us section 107, clause (iii), P.P.C. Submits this clause of the section is fully. Applicable to the facts and circumstances of the case and that opinion of the police is not binding on the Courts.
3. Learned counsel for the complainant submits that occurrence having taken place in the jail and the petitioner being Incharge is fully responsible for the occurrence. Further submits that offence falls within the prohibitory clause of section 497(1), Cr.P.C. Hence the petitioner is not entitled to the grant of bail.
4. We have heard learned counsel for the parties at a great length and have also gone through the record. The petitioner being Superintendent of the Jail was Incharge of the Jail. The occurrence had taken place on 25-7-2003 when the inspection by the learned Sessions Judge was scheduled. The visit of the learned Sessions Judge was very much in the knowledge of the petitioner because according to instructions issued by this Court, every learned Sessions Judge has to visit/inspect the jail on last Friday of every, month. In all propriety, when inspection/visit of the learned Sessions Judge was in the knowledge of the 'petitioners he should have been available in the jail and not have gone to Murree for four days only to attend the engagement ceremony of his niece. Leave from 22-7-2003 to 26-7-2003 when the occurrence had taken place on 25-7-2003 speaks volume against the petitioner. There is evidence of 7 witnesses including the jail doctor, head warder and the accused detained in the jail at the relevant time on record who have implicated the petitioner and the same fact finds mention in the impugned order of the learned Judge, Special Court. In the F.I.R. The complainant specifically alleged that the occurrence had taken place due to active connivance with the Jail Authorities because in absence thereof, ammunition could not have reached inside the jail. As far as, opinion of the police is concerned, that case against the petitioner is one under section 322, P.P.C., apart from the settled principle of law "the opinion of the police is not binding upon the Courts and every criminal case has to be decided on its own facts and the evidence brought on record". We may observe that this section of the P.P.C. Is totally not applicable in this case, in which four Judicial Officers were murdered. By no stretch of C imagination, case of the present petitioner is covered by section 322, P.P.C.
' Over and above all, the offence definitely falls under the prohibitory clause of section 497(1), Cr.P.C.
We are not inclined to exercise our discretion in favor of the petitioner. There is no merit in this petition and the same is dismissed.