' Vide F.I.R. 222 P.S. Batagram District Mansehra, dated 4-12-1984 Badi-uz-Zaman and his two brothers the petitioners were charged for the murder of one Momin Khan under section 302/34, P.P.C. It was claimed that the occurrence allegedly took place at 16-30 hours the same day as witnessed by the complainant and one Jamshed Khan brother of the deceased.
2. The accused-petitioners were admitted to pre-arrest bail which was also later on confirmed by the learned Sessions Judge by a detailed order, dated 20-1-1985. Complainant approached this Court for the cancellation of bail when accepting the petition this Court observed that there was to be drawn a line of distinction between a pre-arrest bail and after arrest bail and that in view of a direct charge of murder allegedly occurred in broad daylight duly witnessed as claimed the Court of Sessions was not to favour the accused petitioners with a pre-arrest bail on the strength of alibi plea. It was, nontheless, remarked that observations made therein shall have no bearing on the investigation and trial and also on the after arrest bail application to be disposed of on pure merits.
3. After their arrest and detailed investigation into the overall case including plea of alibi agitated by the accused petitioners and the confessional statement of one Ghulam Nabi, the Investigation Agency found the accused petitioners innocent and accordingly placed them in column No,2 of the challan and instead challaned Ghulam Nabi accused to face the trial. Petitioners approached the Court of Sessions afresh for after arrest bail on the strength of the authorities published in 1984 P Cr. L J 1049, 1982 P Cr. L J 529 and 1975 P Cr. L J 451 vide the Courts held that where the police investigation exonerates an accused and accordingly places him in column No, 2 of the challan his case falls under subsection (2) of section 497, Cr.P.C. Necessitating further enquiry into his guilt and as such he is entitled to be released on bail.
4. However, without adverting to the merits of the case, the learned Sessions Judge observed that since most of the points had been earlier dealt with by the High Court at the time of pre-arrest bail application, as such those could not be made the basis of a fresh order in view of an authority published in PLD 1976 Lah.
21. He further observed that mere placement of the accused petitioners in column No, 2 of the challan form not in the beginning of the investigation but after the completion of the investigation would by itself be not sufficient to hold the petitioners innocent at this stage and release them on bail. He dismissed the after arrest bail application without adverting to the rule laid down in the case-law earlier cited before him which he had also referred to in his order without discussion.
5. In the first instance I will deal with the authority published in PLD 1976 Lah. 21 relied upon by the learned Sessions Judge as a basis for the dismissal of the after arrest bail application of the accused-petitioners. As already stated this Court in its order, dated 27-4-1985 purposely did not dilate upon the merits of the case with observations that lest the prosecution or accused may be prejudiced and while cancelling the pre-arrest bail of the accused-petitioners it was pointed out to the learned Sessions Judge that he was to draw a line of distinction between a pre-arrest bail and after arrest bail and that due to the apparent lack of mala fides and the unlikely irreparable loss to be caused to the accused-petitioners by the intending arrest in the presence of a direct charge of murder in a broad daylight also claimed to be eye-witnessed, it was not a fit case for the grant of pre-arrest bail. It was also stated in unequivocal language that observations made therein shall have no bearing on the investigation or trial and also on the after arrest bail application to be disposed of on pure merits. The learned Sessions Judge, a Court subordinate to this Court, was thusA duty bound to care the observations and directions of this Court and to dispose of the after arrest bail application on its own merits. The 1976 Lahore authority was not to weigh with the learned Sessions Judge to the extent to ignore the observations and directions of his own High Court particularly made in the case. Again even the said authority had laid down that once the High Court has exhausted its power by passing an order in case of bail before arrest considering the facts of the case, the Sessions Court will not be well-advised in granting bail without there being any change in the circumstances of the case. Now this Court had not disposed of the cancellation application of the pre-arrest bail on the consideration of the facts of the case. Besides after the order of this Court there had developed a significant change in the circumstances of the case that on completion of the investigation the accused petitioners were exonerated of the charge of murder and accordingly placed in column No,2 meant for accused persons not sent up for trial while Ghulam Nabi accused confessing the charge of murder of the deceased in a different manner and at a different time has been arraigned as a regular accused in column No,3 of the challan to face the trial. Investigating Agency has further cited witnesses in column No,6 of the challan in persons different from the eye-witnesses of the F.I.R. Thus, even on the basis of the said authority the learned Sessions Judge could not withhold the disposal of after arrest bail application on merits. Instead of credit a discredit was given to the placement of the accused-petitioners in column No,2 of the challan having not been made in the beginning of the investigation but after the completion of the investigation. I regret to point out to the learned Sessions Judge that a final challan is always put in after the completion of the investigation and not at the beginning of the investigation. If in the instant case the investigation agency has put in the final challan after the completion of the investigation and has exonerated th accused petitioners of the charge of murder finding it a case of substitution for the true culprit and accordingly placed them in column No, 2 and challaned the alleged real culprit as a regular accused in column No, 3, the same must have been considered as change in the circumstances of the case within the meaning of the authority relied upon by him. Moreover it stands recognized that pre-arrest bail and after arrest bail proceed on entirely different principles and the rejection of an application for pre-arrest bail shall not have any bearing on the application for after arrest bail. In Muhammad Hussain v. The State 1982 SCMR 227 the accused was earlier refused a bail before arrest by the Court of Sessions as well as the High Court when after his arrest he approached the Court of Sessions for bail afresh and the Court of Sessions granted him a bail as only a Lalkara has been attributed to him. The High Court has cancelled his bail on the ground that the accused had not brought it to the notice of the learned Sessions Judge that pre-arrest bail had been earlier declined to him both by the High Court and the Sessions Court. In the facts of the case the Supreme Court observed that pre-arrest bail and after arrest bail are based on entirely different principles and the rejection of the application for the former does not have any bearing on the latter. Without going into the merits of the case the Supreme Court favoured the accused with a bail after arrest.
6. The Code of Criminal Procedure 1898 prescribes a procedure for taking cognizance of offences by Magistrate amongst others upon the report in writing of such facts made by any police officer as provided under section 190(1)(b) and it is under section 173 that on completion of the investigation the Officer Incharge of the police station forwards to a Magistrate empowered to take cognizance of the offence a police report in the form prescribed by the Provincial Government setting-forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond. There has been prescribed form No, 25.56(1) by the Provincial Government for the aforesaid purpose named as charge-sheet and generally known as challan form. Column No, 2 of the said form relates to the names and addresses of the accused persons not sent up for trial whether arrested or not arrested including absconders. Columns Nos. 3 and 4 relate to the names and addresses of the accused persons sent for trial in custody or on bail. Column No, 6 relates to the names and addresses of the witnesses. It thus, comes to that as far the Investigating Agency is concerned it places an accused in column No, 2 of the challan when it finds no case against him. True, Magistrate is not bound to agree with the police report. It may take cognizance of the case against the accused shown in column No, 2 and summon him to face the trial, but till then it shall be assumed and presumed in case of the accused in column No,2 that there are not reasonable grounds for believing that he has committed a non-bailable offence and that there will be necessitated further enquiry into his guilt and that he will be entitled to be released on bail as a right pending such enquiry within the meaning of subsection (2) of section 497, Cr.P.C. In the context it is pointed out that it is only the Court of a Magistrate taking cognizance of the offence or a Court of Sessions in cases exclusively triable by it who can make up their mind to issue summons to the accused placed in column No,2 of the challan to face the trial and for that reason other Courts including this Court should be loath in evaluating the evidence on record to justify the placement of the accused in column No, 2 of the challan lest the jurisdiction of the Court of Magistrate or the trial Court is pre-empted and the accused is prejudiced thereby.
7. Opinions of the Investigating Officers about the innocence of the accused have always weighed with the Courts in granting bail to the accused subject, no doubt, if it receives due justification from material on record. The innocence of the accused is further confirmed if the Investigating Officer places him in column No, 2 of the challan meant for the names and addresses of the accused not sent up for trial. There has been cited case-law at the bar in support of the view that accused declared innocent and placed in column No,2 of challan is entitled to bail as he succeeds to make out a case for further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. Reference is made to 1984 P Cr. L J 1049, 1981 SCMR 565; 1982 P Cr. L J 529, 1982 P Cr. L J 1162 and while on the other hand case-law was cited when bail was refused to the accused of column No, 2 e.g. 1985 P Cr. L J 1157 and 1985 P Cr. L J 799 with whom, with utmost respect, I could not agree as in the Lahore case reference was made to 1984 SCMR 429 and 1984 SCMR 521 in which bail has been ' granted after finding the opinion of the Investigating Officer based on sufficient material on record. The said judgments do not report if the accused were also arraigned in column No,2 of the challan and perhaps for that reason the learned Judge of the Lahore High Court distinguished the facts of the case before him after recording that the placement of the accused in column No, 2 of the challan was not based on sound material and accordingly refused bail to the accused. In 1985 PCr.LJ 799 the bail of the accused placed in column No, 2 granted by the Additional Sessions Judge was cancelled as the accused was directly charged for effective firing at the deceased and he had also remained in abscondance for 24 days after the occurrence. A reference was made to Babo v.
The State 1981 SCMR 849 from which the relevant para. Was reproduced, which reads as follows:- "As the allegation against the petitioner is that he had joined the unlawful assembly by arming himself with a. Gun, it is immaterial whether the fatal shot is attributed to him or not. Although the Investigating Officer is said to have found him innocent, yet the name of the petitioner was not shown in column No,2, but in column No, 3 as a regular accused. No benefit can, therefore, accrue to the petitioner on the basis of the opinion formed by the Investigating Officer during the investigation."
In my humble view the Supreme Court Authority lays down a rule that if the opinion of the Investigating Officer about the innocence of the accused is not followed by placing him in column No, 2 of the challan and he is placed in column No,3 as a regular accused then there cannot be given benefit to the accused on the basis of such opinion formed by the Investigating Officer during the investigation. Conversely it lays down a rule that if the opinion of the Investigating Officer about the innocence of the accused is followed by his placement in column No, 2 of the challan then there shall accrue a benefit to the accused on the basis of such opinion to entitle him to be released on bail.
8 As far in the case in hand the Investigating Agency has not only placed the accused-petitioners in column No,2 of the challan but had sent up Ghulam' Nabi accused for trial placing him in column No, 3 of the challan and had also given the names of the witnesses in column No, 6 of the challan about the occurrence to bring home the charge of murder happened in a different manner and at different time to Ghulam Nabi accused who has also since been placed in the judicial lock-up on the charge of the murder of the deceased. The version in each case is completely different and mutually exclusive of each other.
9 In the circumstances of the case, I would release the accused petitioners on bail on furnishing bonds in the sum of Rs,50,000 with two sureties each to the satisfaction of the Ilaqa/Duty Magistrate.