' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---This is 2nd petition on the subject on behalf of the petitioner. The earlier, one bearing Criminal Miscellaneous No,11297-B of 2012 was dismissed as withdrawn by a learned Single Bench of this Court in terms of order dated 29-8-2012 on the statement of learned counsel for the petitioner as the Investigating Officer made statement before the Court that the petitioner was found innocent during the course of investigation and he was not required by the police.
2. Apprehending his arrest at the hands of the police, through the instant petition, the petitioner seeks his pre-arrest bail in case F.I.R. No,368/2011, dated 25-9-2011, offence under sections 302, 148, 149, P.P.C., registered with Police Station, Balochni Jaranwala, District Faisalabad.
3. Allegation against the petitioner, in brief, as contained in the crime report is that in between the night of 24/25-9-2011 he along with his co-accused while armed with repeater .12 bore made fire shots hitting on left flank and left knee of Muhammad Ilyas (deceased).
4. At the very outset, learned counsel for the petitioner submits that this is 2nd petition, but it has been mentioned in the certificate that this is 1st petition on the subject on behalf of the petitioner only due to typographical mistake. Learned counsel submits that the fate of earlier petition bearing Criminal Miscellaneous No,11297-B of 2012 has been mentioned in certificate and copy of the earlier order passed in the said petition has also been appended with this petition and as such no concealment of facts has been committed.
' While arguing the case on merits, learned counsel for the petitioner submits that the petitioner is innocent and has falsely been roped in the instant case by the complainant against the actual facts and circumstances with mala fides. It is argued that after the occurrence, the petitioner along with his co-accused Muhammad Hussain and Sarfraz appeared before the police of their own and all of them were found innocent and were let off by the police. It is argued that the name of the petitioner has been placed in Column No,2 of the report under section 173, Cr.P.C. Learned counsel argued that subsequently on the application of the complainant, investigation of the instant case was transferred to RIB, Faisalabad and fate of investigation remained the same. It is contended that during the successive investigations it transpired that co-accused of the petitioner namely Muhammad Aslam is the sole proprietor of the occurrence and as such he was taken into custody and recovery of weapon of offence has also been effected from him, which has also matched with the crime empty taken into possession by the Investigating Officer from the place of occurrence as per report of Forensic Science Laboratory. It is next contended that being dissatisfied with the investigation, the complainant preferred private complaint. Learned counsel argued that the petitioner has been granted pre-arrest bail by the learned trial Court in complaint case, but he was declined relief in the Challan case. It is contended that as there are divergent findings of the learned trial Court qua the accusations against the petitioner, therefore, the petitioner is entitled to the relief prayed for by means of instant petition on this score alone.
5. Contrarily, learned Deputy Prosecutor-General assisted by learned counsel for the complainant has opposed this petition with vehemence. It is argued that though the petitioner was found innocent during successive investigations, but the same is not binding upon the courts. Learned counsel contends that the petitioner misused the concession of pre-arrest bail for more than one month. Moreover, it is a pre-arrest bail and the same can be granted sparingly.
6. Arguments advanced from both sides have been heard. Record available on file perused.
7. There is no second cavil to this preposition to the fact that the petitioner is named in the crime report with specific allegation, but the fact also remains that during two successive investigations he was found innocent and was let off by the police and his name has been placed in Column No,2 of the report under section 173, Cr.P.C. In both the investigations carried out by the local police as well as RIB, Faisalabad, Muhammad Aslam, co-accused of the petitioner was found to be sole proprietor of the occurrence and weapon of offence has also been recovered from his possession.
Moreover, there is positive report of Forensic Science Laboratory qua matching of crime empty with the weapon of offence recovered from him. As far as opinion of the police is concerned, though the' same is not binding upon the courts, but the same has got persuasive value for the purposes of deciding bail petitions. When confronted, learned Deputy Prosecutor-General as well as learned counsel for the complainant frankly conceded that the petitioner has been granted pre-arrest bail by the learned trial Court in complaint case. As far as argument of learned counsel for the complainant that the considerations for grant of pre-arrest bail are entirely different is concerned, keeping in view, the dictum of law laid down by the august Supreme Court of Pakistan in a reported case Meeran Bux v. The State and another PLD 1989 SC 347 the Court while deciding the pre-arrest bail can touch upon the merits of the case. Previous animosity between the parties and unchallenged findings of the police in two successive investigations coupled with the fact that no incriminating material is available on the record to connect the petitioner with the commission of the offence alleged against him has prompted this Court to come forward for the rescue of the petitioner. Even otherwise, the basic principle is bail and not jail. As far as mentioning of wrong note in the bail petition is concerned, apparently the same is due to typographical mistake and no adverse action can be taken, but still learned counsel for the petitioner is warned to be careful in future.
8. For the foregoing facts and circumstances, this Court is persuaded to accept this petition.
Resultantly by allowing this petition, ad-interim bail already granted to the petitioner in terms of order dated 4-10-2012 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of learned trial Court.