' HASNAT AHMAD KHAN, J.---The petitioner has approached this Court for the grant of post-arrest bail in the case F.I.R. No,1204, dated 19-10-2007, registered at the Police Station, Nishatabad, Faisalabad, in respect of the offences under sections 302/148/149/109, P.P.C. After being denied the self-same relief by the learned Additional Sessions Judge, Faisalabad, vide order dated 17-6-2008.
2. Shorn of unnecessary details the prosecution story as unfurled in the F.I.R., recorded on the application of Akhtar Ali complainant, is that on 19-10-2007 his brother Asghar Ali along with Abdul Razaq, Muhammad Riaz and Abdul Sattar were on their way to attend court proceedings, while crossing Bridge Rasoolpur they were intercepted by Sajid Amin armed with a .222 rifle, Abdul Qayyum armed with a repeater, Abdul Ghaffar armed with .222 rifle and Faisal Maqsood armed with a kalashnikov, that in the meantime Imtiaz petitioner armed with a kalashnikov and Nazar Hussain armed with a .12 bore repeater, also reached the scene on a Honda Motocycle; that the accused raised a Lalkara that Asghar Ali and Abdul Razaq, would be taught a lesson for the previous litigation, whereupon Faisal Maqsood fired at Asghar Ali which hit him on the back side of the head and went through and through whereupon Asgahr Ali fell down from the motorbike. All the accused, allegedly, resorted to firing and raised lalkara that anybody, who dared to come near, would be done to death. Asghar Ali succumbed to the injuries on the spot. The accused sped away on two motocycles while leaving third motorcycle, bearing Registration No,4936-FSH on the spot.
The motive behind the occurrence was stated to be the previous litigation between the parties.
3. In support of this application learned counsel for the petitioner has contended that the sole and fatal injury received by Asghar Ali (deceased) was attributed to Faisal Maqsood, co-accused; that the only role ascribed to the petitioner is that of ineffective firing; that during the investigation no incriminating article was recovered from the petitioner; that the prosecution failed miserably to connect the motorcycle, which was allegedly driven by the petitioner during the occurrence and was subsequently recovered from the place of occurrence, with the petitioner; that during the investigation the petitioner was found to be innocent; that Nazar Hussain - co-accused - whose role is similar to that of the petitioner, was not even arrested during the investigation and that the petitioner has been in throes of incarceration since 12-11-2007 but there is no chance of early conclusion of the trial.
4. Conversely, learned Deputy Prosecutor General assisted by the complainant in person, has opposed the bail application by contending that the petitioner is a nominated accused of the said F.I.R.; that the occurrence which took place during the broad day light was reported to the police quite promptly; that four of the co-accused including the principal perpetrator of the offence of murder, have already been declared as proclaimed offenders and that the charge has already been framed, therefore, at this stage deeper appreciation of the evidence would not be admissible.
' The complainant has supplemented the arguments advanced by he learned Deputy Prosecutor General by submitting that the proclaimed offenders have been intimidating him (complainant) constantly. He, however, candidly conceded that no F.I.R. Or rapt had been lodged by him in this regard.
5. After giving an ardent hearing to both the parties and going through the documents appended with this application as well as the police file, I have gathered that the fatal injury received by Asghar Ali (deceased) is not attributed to the petitioner. I have further noticed that the complainant implicated as many as ten people including the petitioner for the offence of culpable homicide of his brother, which fact shows that possibility of throwing the net very wide, cannot be ruled out, out rightly. The contents of the. F.I.R. Further reveal that the complainant levelled the allegation of resorting to ineffective firing against all the accused including the petitioner in a generalized form. The motorcycle by which the petitioner along with Nazar Hussian/co-accused had allegedly reached the place of occurrence, was recovered from the spot but the prosecution, during the investigation, failed to connect the same with the petitioner. The said motorcycle was bearing a fake number plate. It is noteworthy that during the investigation the kalashnikov allegedly used by the petitioner, could not be recovered from him during the investigation.
Moreover, the petitioner was found innocent by the investigating officer. While returning the finding of innocence of the petitioner, the investigating officer relied upon the statements of four people, namely, Muhammad Hakeem, Jauzaf, Mushtaq, Javed and Younas, who had claimed themselves to be the eye-witnesses of the occurrence, therefore, tentatively speaking it cannot be said that the said finding is not based upon sound material. It is true that opinion of the police is neither admissible in evidence nor binding on the courts, but at the same time it is also true that at bail stage the same can be considered by the courts, rather, after having been declared innocent, the accused becomes entitled to bail as a matter of right as had been held by the Hon'ble Supreme Court in the case of Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182. Admittedly, Nazar Hussain, co-accused whose case is at part with the petitioner - has not even been arrested during the investigation. Insofar as the abscondence of the co-accused is concerned, the petitioner cannot be kept as a hostage for the arrest of the said proclaimed offenders. After all, the petitioner cannot be punished for the failure of the police to perform their duties diligently and efficiently.
6. Now coming to the objection, that after framing of charge the petitioner cannot be granted bail, suffice it to hold that after making out a case of further inquiry the petitioner has become entitled to bail as a matter of right which cannot be denied to him on the rule of propriety, which demands that ordinarily after the start of trial bail should not be granted to the accused. In this regard I am pinning my faith on the cases of Muhammad Ismaeel v. Muhammad Rafiq and another PLD 1989 SC 585, Muhammad Saleem v. The State PLD 1989 Lahore 233 and Muhammad Umar v. The State and another PLD 2004 SC 477.
7. Consequently, the application in hand is accepted and the petitioner is allowed the concession of post-arrest bail but in the peculiar circumstances of the case subject to his furnishing bail bonds in a heavier amount of Rs,2,00,000 (rupees two hundred thousand) with two sureties in the like amount to the satisfaction of the learned trial court.
8. Before parting With this order I would like to direct C.C.P.O. Faisalabad, to ensure the arrest of the, co-accused, who have been declared proclaimed offenders in this case. Office is directed to transmit a copy of this order to the said officer, immediately.