The matter in question has already been dealt with by me in Criminal Miscellaneous No 1673/B of 1978 decided on 16-6-1978. Two of the petitioners in that Criminal Miscellaneous namely Ghafoor and Anwar were released on bail while the bail application on behalf of others including the present petitioners was dismissed. The present petitioners Mehr Din and Muhammad Latif have approached this Court again mainly on the ground that that they have been found innocent in three successive investigation reports and as such under the law they are entitled to grant of bail.
2. The occurrence in this case took place on 5th of September, 1977 at about 10.00 a. m. At Chak No. 76/5-L Tehsil Sahiwal resulting in the death of two persons namely ; Muhammad Ishaque and Mani.
F. I. R. Was lodged on the same date at about 1.00 p. m. Under section 302/307/148/ 149, P. P. C. At Police Station, Burjwala. According to the F. I. R. Ihata No. 30 was allotted to Kamal Din accused while Ghulam Rasool another accused was also residing with him. The adjacent Ihata bearing No. 29 was allotted to Ch. Mohd. Din father of the complainant Nisar Ahmad, Advocate in the year 1947.
Ch. Muhammad Din died in 1966 and thereafter Kamal Din built a new house in his own Ihata and allegedly encroached upon three marlas of land of Ihata No. 29. The record shows that Ghulam Rasool thereafter got whole of Ihata No. 29 allotted in his favour. The order passed in this behalf was challenged before the Additional Commissioner, Multan, who after accepting the appeal remanded the case to Tehsildar, Sahiwal who allotted three marlas out of Ihata No. 29 to Gh.Ulam Rasool and 14 marlas to the complainant Nisar Ahmad.
3. According to the prosecution Nisar Ahmad the complainant went to the place of occurrence on 5th of September, 1977 at the aforesaid time along with some persons who according to the petitioners numbered about 50/60 on the Tractor Trolly carrying building material for the purpose of raising, construction over the area which had been allotted to him. According to the F. I. R.
Lodged by Nisar Ahmad all the accused persons named therein were present there. Kamal Din was armed with pistol, Anwar with hatchet, Ghafoor empty handed while the remaining accused were armed with guns. They went on .The roof of the Ihata with their respective weapons, and after Lalkara was raised Kamal Din fired shot with his pistol which bit Muhammad Ishaque deceased.
Ghafoor and Anwar allegedly indulged in brickbatting on Mani deceased. Ghulam Rasool is alleged to have fired with his gun at Mani which hit him at his head. Muhammad Latif fired at Qasim and hit his shoulder. Qasim Ali, according to his own statement was also fired at by Ghulam Nabi receiving injury at his leg. Mohr Din and Ghulam Rasool boat continued firing at the complainant party for some time.
4. Learned counsel for the petitioners has raised the following contentions :
(a) Both the petitioners have been found innocent in the three successive investigation reports by the independent investigating agencies who have enquired into the mattes and have concluded that the petitioners are innocent and have been falsely involved in the case.
(b) The finding given in the three investigation reports though not legally binding, however, is a relevant factor to be taken into consideration for grant of bail.
(c) Both the petitioners on account of the aforesaid investigation reports have been placed in column No. 2 meaning thereby that further inquiry is required to be held in their case as required by law ; subsection (2) of section 479, Cr. P. C., and as such they are entitled to bail.
(d) The plea that both the petitioners were innocent and had been falsely implicated was raised at the very outset of the case before the every Investigating Officer. It has been found to be correct by the three investigation reports, while the prosecution has failed to prove otherwise during the investigation.
(e) According to the investigation reports the complainant party led by Nisar Ahmad has been found to be aggressor while Ghulam Rasool accused has been found to be in possession of the premises in question at the time of occurrence.
5. Malik Abdul Karim, Advocate, learned counsel for the complainant has vehemently opposed the application for grant of bail as their case in this behalf has already been decided vide order dated 17th of June, 1978 passed in Criminal Miscellaneous No. 1673/B of 1978. It is submitted that the mere fact that the petitioners have been placed in column No. 2 is no ground for grant of bail to them.
Qasim Ali who is an injures person and who has been examined as P. W. 2 in this case has stated in his statement under section 161, Cr. P. C. During the investigation that he was also fired at by petitioner No. 2, Muhammad Latif. According to him in view of the ocular; evidence of Qasim Ali P.
W. An injured person, Muhammad Latif is not entitled to bail. He has relied in this behalf upon Ali Gohar v. The State 1978 SCMR 159. He has also relied upon Nazar Muhammad v. The State PLD 1978 SC 236, Gul Ahmad v. Masam Khan and 3 others 1977 SCMR 27, Aitbar Khan and another v.
The State 1977 P Cr. L J 114, Manzoor and 4 others v. The State PLD 1972 SC 81 and Kamal Din v. The State and another 1979 P Cr. L J Note 16 at p. 11.
6. The facts of the case as reported in 1978 SCMR 159 are quite different from the facts in the present case. In that case one person had died on account of the firing of gunshots by the petitioner before the Supreme Court. He was the only person who was armed with a gun. The- investigation had not found him innocent nor had placed him in column No. 2 while in the present case the petitioners have been found to be innocent in three successive investigations and placed them in column No. 2. In the circum. Stances stated above, bail was refused by the Supreme Court on the ground that the petitioner before the Court was the only person who fired from a gun resulting in the death and further there was no other person who was armed with gun. The facts of the case as reported in PLD 1978 SC 236 are that the petitioner before the Supreme Court duly armed lay in ambush in the verandah of Manzur Hussain co-accused when the deceased along with other persons passed in front of them. Manzur Hussain raised Lalkara followed by a rifle fire by Shaukat Manzoor and by Manzoor Hussain as well hitting the complainant. The petitioner before the Supreme Court was alleged to have fired twice and injured Sadaqat Ijaz P. W. The police during the investigation found Manzoor Hussain innocent and placed him in column No. 2 of the challan.
He was allowed bail by the Sessions Judge and nobody challenged the validity of that order. The bail of Nazar Muhammad before the Supreme Court was refused by the High Court as well as the Supreme Court on the ground that while armed with a gun he sat in ambush and also fired two shots at the injured P. W. It was found that the provisions of section 34, P. P. C. Were accordingly attracted and he was prima facie guilty of an offence punishable with death or imprisonment for life. It is worth noticing that the petitioner, the main accused in that case had also sustained injuries and as such it could not be pleaded by him that he had been falsely involved. Further he had not been found to be innocent during the investigation by the police. Further Manzoor Hussain one of the accused persons in that case was found to be innocent and placed him in Column No. 2. He was allowed bail by the Sessions Judge and no observation whatsoever was made by the High Court or by the Supreme Court with regard to such order, nor any notice was issued to him for cancellation of his bail irrespecrive of the fact that he was alleged to have fired at the complainant.
The facts of tae aforesaid case are, therefore, quite different from the present case and the conclusion arrived at by the Supreme Court in the said case cannot by made applicable to the facts of this case.
7. The facts of the case as reported in 1977 SCMR 27 are that a case was registered at Badaber Police Station District Peshawar at the instance of Gul Ahmad appellant before the Supreme Court against eight accused persons. They were charged with the offence under sections 148, 302/307/436/149, P. P, C. The occurrence took place at 10.00 a. m. Resulting in double murder of Fazal Dad and Azim Khan with fire-arms. Respondents 1 to 3 were allowed bail by the Peshawar High Court in May, 1973 against which order leave to appeal was granted by the Supreme Court to consider as to whether the respondents had been released on bail on sound judicial principles. The Peshawar High Court granted bail mainly on the ground that C. I. A. Staff had found the aforesaid three accused persons after due investigation to be innocent while relying upon the dictum of law as laid down in Rehmatullah alias Rehman v. The State 1970SCMR299. The Peshawar High Court released them on bail considering that though the opinion of the Investigating Officer did not constitute legal evidence yet it was a relevant factor to be taken into consideration while deciding the bail matter. The appeal filed by the complainant was allowed by the Supreme Court on the ground that double murder had taken place in the broad daylight and besides fire-arm injuries to as many as four persons who not only implicated the accused including the three accused persons in their police statements but also deposed against them before the Inquiry Magistrate. It was held that the mere fact that the F. I A. Staff had in a subsequent investigation held the respondents (accused) as innocent would hardly constitute a valid ground for their enlargement on bail in the circumstances of the case. It was further observed that great care and caution was needed in the invocation of the authorities of the Supreme Court which by and large proceeded on the peculiar facts of each case. The case of Rehmatullah as mentioned above was distinguished by the Supreme Court in its judgment. It was held that one clear point of distinction was that in that case Rehmatullah was only charged with vicarious liability for the murder of Mst. Fatima and again he was found innocent in three successive investigations. It was held that for these reasons he was allowed bail by the Sessions Judge which was cancelled by the High Court but restored by the Supreme Court.
8. It is admitted on record as mentioned above that in the present case both the petitioners have been found to be innocent in three successive investigations. The dictum of law as laid down in Rehmatullah's case and the facts thereof are therefore, fully attracted to the present case. In Aitbar Khan and another v. The State 1977 P Cr. L J 114, it was held that findings of the Investigating Officer affirmed by Supervisory Police Officer holding the petitioners to be innocent in that case were not binding on the trial Court. Bail in that case was refused mainly on the ground that the Zimni in question which had been recorded by the Investigating Officer could not be taken at its face value as it appeared to be written on a different kind of paper than the previous pages of the file. There were also found some other writings on the numbering of the Zimnis. The learned Single Judge after having examined the relevant register containing the Zimnis made the aforesaid observations. It was held in the given circumstances that the opinion of a police officer was by no means binding on Courts in determining the liability or otherwise of the persons involved in the criminal cases. Bail was refused also on the ground that the petitioners in that case had been named in the F. I. R. As armed with pistols and having used the same to kill the deceased.
In the present case no such allegation had been levelled with regard to recording of the Zimnis by three Investigating Officers. The last Investigating Officer ; Kh. Muhammad Tufail, S. P. Crimes Branch has also found both the petitioners to be innocent and having been falsely involved in the case. He recorded the statements of certain persons belonging to the locality and after holding the inquiry in the matter came to this conclusion. All the Zimnis in question do not appear to have been tampered with in any manner. Further in that case the accused persons relied upon one report of an Investigating Officer, while in the present case three successive reports have been submitted by the different agencies holding, the petitioners to be innocent.
9. The facts of the case reported in PLD 1972 SC 81 are quite different, from the facts of the present case. In that case names of the persons mentioned in the F. I. A. Were placed by the police in column No. 2 of the challan as mere suspects while a number of other persons were charged as culprits. The complainant on the other hand maintained that the police was shielding the real culprits and that the persons charged as accused were innocent. The accused applied for bail but the High Court rejected the bail on the ground that the police investigation had held them to be guilty. It was held that it was not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused even in the matter of deciding the question of bait. An accused charged with the offence of murder is not to be released on hail if there are reasonable grounds for believing that he had committed such an offence. The onus lies with the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. In that case challan had been submitted and the complainant had charged the persons named by him in the F. I. R. Being the real accused in his statement before the committing Court and had exonerated the persons found to be culprits by the police of the murder charge. This aspect of the case weighed with the Supreme Court and the persons who had been found to be guilty of the offence of murder by the police in their investigation were admitted to bail. The facts of the case do not disclose that the case had been investigated by other independent agencies more than once. The case reported in 1979 P Cr. L J Note 16 at p. 11 is the same one which is the subject- matter of this judgment. In the aforesaid judgment only Ghafoor and Anwar were admitted to bail while the application of the present petitioners was rejected on the ground that there was nothing on record to show that they had been placed in column No. 2.
10. It has been contended by the learned counsel for the complainant that the investigation report submitted by Kh. Muhammad Tufail, S. P. Crimes Branch, cannot be relied upon as one of the persons Abdul Ghaffar son of Din Muhammad whose statement has been referred to and relied upon by the Investigating Officer has sworn affidavit on 2nd of August, 1978 that he never gave any such statement as recorded by the Investigating Officer. The police file shows that the statement was recorded before 26th of May, 1978, the date on which the report was submitted while the affidavit was sworn on 2nd of August, 1978 after more than a month when the statement was recorded. The other person whose statement has been relied upon is Muhammad Ali son of Islam- ud-Din. Abdul Ghaffar has been placed in column No. 2 in the case registered against him as well as other members of the complainant party by the other party. The fact that the affidavit was sworn much after when the statement of Abdul Ghaffar was recorded cannot be ignored, and as such much credence cannot be given to the same. Further as mentioned above the local police as well as the other two Investigating Agencies all have found both the petitioners to be innocent.
There is no doubt as held in PLD 1972 SC and 1972 P Cr. L J 1192, that the opinion of the police is not binding upon the Court while; deciding the bail matter but the same is definitely relevant for this purpose. The opinion given by the police officials concerned in successive three investigation reports that the petitioners are quite innocent is not only a relevant factor but an important factor to be taken into consideration while deciding the bail matter.
It is also important to notice that the complainant, Nisar Ahmad being not satisfied with the first investigation report, finding both the petitioners to be innocent approached the higher police officials for further investigation of the matter. The second report was also not in his favour but in favour of the petitioners and yet another probe was demanded which was made by Kh.
Muhammad Tufail, S. P. Crimes. This report, as mentioned above, was again in favour of the petitioners. In the circumstances it cannot be said that prima facie there are not reasonable grounds in favour of the petitioners for enlarging them on bail.
11. It has been held in Salabat and 4 others v. The State 1975 P Cr. L J 451 that in the case of such accused persons involved in a murder case who have been placed in column No. 2 after having been found innocent by the Investigating Agency, there are treasonable grounds for believing that they have not committed a non-bailable offence and there are sufficient grounds for further inquiry into their guilt. The petitioners before the High Court in that case were admitted to bail after they had been found to be innocent according to the police report and placed in column No. 2.
Similar view was taken in Ghulam Muhammad and 2 others v. The State 1970 P Cr. L J 765 and Ibrahim v. The State 1969 P Cr. L J111. In Karam Din v. Muhammad Ashraf and 2 others 1975 SCMR 230 four investigating agencies made probe into the matter and came to the conclusion that the respondents before the Supreme Court were innocent. As such their names were placed in column No. 2 of the report made under section 173, Cr. P. C. An application was made before the High Court for cancellation of their bail granted to them by the Sessions Judge. The same was dismissed. The Supreme Court was approached ultimately by the complainant for cancellation of bail. This plea was rejected mainly on the ground that the respondents in that case had been found innocent in successive four investigations.
12. The view taken in Rehmat Man alias Rehman v. The State and another 1970 SCMR 299 still prevails. Rehmat Ullah, appellant before the Supreme Court as mentioned above was found to be innocent in three successive investigation reports. It was held that though the opinions of the Investigating Officers certainly did not constitute legal evidence but being adverse to the prosecution they put one on an inquiry as to veracity of the prosecution case and as such question of vicarious liability of the appellant in regard to commonness of his intention with his co-accused for firing at Bakhsha and its further extension to the result that followed, namely, the death of Mst.
Fatima would be determined at the trial to see if his guilt under section 301/34, P. P. C. Was established as alleged by the prosecution.
In the present case the petitioners have been found to be innocent in three successive investigation reports and question of their vicarious liability in regard to commonness of their intention that they are responsible for firing at one P. W. And otherwise indulging in general firing at the complainant party would be determined at the trial in order to find out their guilt.
13. Respectfully following the principle of law laid down by the Supreme Court in that case both the petitioners are entitled to grant of bail. They are, therefore, admitted to bail in the amount of Rs.
20,000 each (Rupees twenty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
14. Criminal Miscellaneous is accepted without any order as to costs.