1. ' This revision petition has been preferred against an order of District Criminal Court, Mirpur dated 19-10-2004, whereby the accused/respondent was released on bail.
2. ' The brief facts forming the background of instant revision petition are that the petitioner/complainant lodged an F.I.R. At Police Station Mirpur on 8-9-2004 at about 6-45 p.m., alleging therein that he along with Azam Sajjad his friend were proceeding towards his house situated at Sector G/1, Mirpur boarded on a motorcycle. When they reached near the shrine of Sain Jahalla, the respondent with Shahzad and Munir accused who were also riding behind them on their motorcycles, obstructed them. The accused/respondent Zulfiqar fired four successive shots. One amongst them hit upon his right leg whereas other three shots missed the target. In consequence of a shot of fire, he with Azam Sajjad fell on the ground. The place of occurrence being a busy road, so many vehicles stopped there and the people started alighting from their vehicles. On seeing them coming out of their vehicles, the accused/persons fled away from the place of occurrence. The occurrence was witnessed by Farman Ali and Azam Sajjad.
3. ' The motive behind the occurrence as stated in the F.I.R. Is that the complainant had divorced the sister of accused/respondent, therefore, he had a grudge and animus against him.
4. ' On this report a case under section 324/34, A.P.C. Was registered against accused/persons.
5. ' After necessary investigation, the investigating agency reached the conclusion that the complainant has failed to prove his version, therefore, the case should be consigned to the record, as not proved.
6. ' The accused/respondent moved an application for bail after arrest before Additional Tehsil Criminal Court, Mirpur which was allowed vide its order, dated 16-9-2004.
7. ' Feeling aggrieved and dissatisfied, the complainant filed an application for cancellation of the bail before District Criminal Court, Mirpur but his submission was declined vide order, dated 19-10- 2004. Hence, this revision petition.
8. ' Arguing on behalf of the petitioner/complainant Raja Zulfiqar Ahmad, Advocate, submitted that the accused has been nominated in the F.I.R. And a specific role of firing shots by a pistol has also been ascribed to him. He further argued that the occurrence took place in a daylight and there is no doubt about the identification of the accused/ respondent. The learned counsel pointed out that the eye-witnesses have fully supported the version of the complainant that the accused fired four shots upon the complainant with an intention to do away with his life. According to him, the medical evidence also supports the prosecution tale therefore; the Courts below committed an illegality to release the accused/respondent on bail. In support of his contention, he cited PLD 1994 SC 172 and 1996 PCr.LJ 292.
9. ' Syed Tayyab Gillani, the Assistant Advocate-General appearing on behalf of the State has fully owned and supported the arguments raised by the learned counsel for the complainant/petitioner and submitted that the Court is not bound by the report of the police.
10. ' Conversely, Ch. Ashfaq Ahmad, Advocate, the learned counsel for the accused/respondent vehemently contended that the alleged occurrence took place on the main road but no independent witness has been produced by the complainant whereas both the eye-witnesses nominated in the F.I.R. Are closely related to him. The learned counsel pointed out that the accused/respondent remained under arrest for nine days but the weapon of offence could not be recovered from him and the Investigating Agency reached the conclusion that the complainant failed to prove his version, therefore, the exercise of discretion by the Court below is neither arbitrary nor fanciful. The learned counsel further submitted that a false case has been concocted against the accused/ respondent on account of enmity. In support of the arguments, reliance was placed upon PLD 1995 SC 34.
11. ' I have given my due consideration to the arguments addressed at Bar and examined the record.The cursory perusal of the record shows that prima facie, reasonable grounds exist to connect the accused with the commission of offence. The prosecution story is, supported not only by the statement of the injured complainant but also by two eye-witnesses Azam Sajjad and Saghir Ahmad. Three empties have been stated to be recovered from the place of occurrence.
12. According to the medical report, the petitioner/complainant received a bullet injury on mid of right leg from a distance of about 3 to 8 feet. It is also on the record that the accused fired four shots on the person of the victim but one shot only hit him directly, therefore, the intention of the accused of launching a murderous assault appears from his act and the case prima facie falls under prohibitory clause in terms of section 497, Cr.P.C.
13. ' I find no substance in this plea of the learned counsel for the accused/respondent that the prosecution witnesses are related to the complainant, therefore, their statements cannot be taken into consideration at this stage. Furthermore, the fact of non-recovery of pistol, the weapon of offence, does not entitle the accused/respondent for grant of bail especially when the accused has been prima facie, implicated by the eye-witnesses. It will be useful to mention here that the evidence of recovery is type of supporting evidence and if the ocular version is clear and convincing, coming from unimpeachable source, it can be relied upon without any corroboratory and confirmatory evidence.
14. ' It transpires from the perusal of the record that both the Courts below have not applied their judicial mind while passing the impugned order and solely depended upon the opinion of police.
15. The impugned order has been recorded in a sketchy and slipshod manner without discussing the brief facts, prosecution evidence and other incriminating material collected by the Investigating Agency, mentioned above.
16. ' It will be pertinent to note that the opinion of a Police Officer is not binding upon the Court but it has only a pervasive value rather the order and judgment of a Court is binding upon the Police Officer which can have its own opinion after examining the file and draws its conclusion. It is also celebrated principle of law that an opinion of Police Officer declaring an accused innocent cannot be made basis for the grant of bail. When the Court after examining the material on record, reaches the conclusion that the defence plea accepted by the Investigating Officer is not plausible, the Court will not agree with him and then the opinion of the Court will prevail and the accused will not be enlarged on bail. My this view finds support from a case reported as Liaquat Ali v. The State PLD 1994 SC 172, wherein it has been opined at page 178 of the report as under:-- "Considering the observation made and the rule laid down by the aforesaid judgments, it is now well-settled that the opinion of the Investigating Officer is not binding upon the Court. Every Court can have its own opinion and may after examining the opinion of the Investigating Officer, come to a different conclusion. The opinion of the Investigating Officer holding an accused innocent, cannot be made the only basis for granting bail. Although due weight is given to such opinion, but the Court is empowered to examine the material which has been made basis for forming such an opinion by the Investigating Officer. If the opinion is based on inadmissible and irrelevant evidence, it will not carry any weight at all. However, all the attending facts and circumstances of the case are to be taken into consideration while assessing whether the opinion of the Investigating Officer should be accepted or not."
17. ' After examining the record and material collected by the Investigating Agency, the accused/respondent is prima facie, connected with the commission of murderous assault and in such-like cases the bail cannot be granted in haste. The impugned order lacks convincing reasons and without being guided by principles governing grant of bail, therefore, it is not sustainable.
18. ' Before parting with the judgment, it will be pertinent to note that the Investigating Officer including other superior officials have specifically criticized the tribe of complainant and of his being from a low caste, declared him a liar, who has dared to marry a lady of superior tribe. This type of remarks during investigation are deplorable and the concerned Police Officers are directed to be careful in future while commenting in such-like manner because according to Almighty Allah amongst human beings only one is superior, near and dear to Him who is most pious. In this respect it has been ordained in Surah Al-Hujurat Verse No,13 of the Holy Book as follows:- "O people! Verily we have created you from a male and female, and have made you different branches and different tribes, so that you may recognize one another, surely the most honoured of you in the presence of Allah is he who is the most pious of you. Surely Allah is the All Knowing the All-Aware."
19. ' As far as the other authorities cited by the learned Advocates for the parties are concerned, do not render any help to them because of distinguishable facts, therefore, need not to be discussed in detail.
20. ' The upshot of the above discussion is that, I accept this revision petition, set aside the impugned order, dated 19-10-2004 and recall the concession of bail. The accused/respondent shall be taken into custody. However, the trial Court is directed to apply its judicial mind upon the final report filed by police and proceed further in accordance with law.