1. Respondents alongwith Sultan Khan, Hafiz Ullah and Hayat Ullah sons of Muhammad Khan were named as assailants, in the first information report, registered at Police Station (City), Mianwali on 11-5-1983 at 11.20 a.m. For an occurrence which had taken place on the same day at 11.a.m. Within the premises of Niazi Hotel, situated near the District Council, Mianwali. All of them, according to the first information report, were armed with guns. In the occurrence Musih-ur-Rehrnan and Shah Nawaz had died on the spot, while Muhammad Khan son of Sher Khan had died in the hospital at Mianwali on 16-5-1983. P.Ws. Fazal-ur-Rehman and Haji Muhammad Khan son of Haji Muhammad Gul Khan had received injuries. Fazal-ur-Rehman P.W. Had received some injuries in the spinal cord as a result of which he is stated to be incapacitated and bed-ridden. The occurrence, in addition to the injured P.Ws. Was also witnessed by Muhammad Iqbal and Muhammad Hayat Khan complainant.
2. ' Motive for the occurrence was the enmity between the parties which had a history of 20-25 years, resulting in the murders of members of each party. Some of the cases inter se the parties were pending during the days of occurrence.
3. ' The investigation, initially was conducted by S.H.O. Police Station (City), Mianwali and was verified by Ali Khan and Nazir Khan, Deputy Superintendents of Police. All the three officers had recommended that the eight persons named in the first information report should be challaned.
4. Thereafter the investigation was taken up by Fazal-ur-Rehman Tarin, Deputy Superintendent of Police, Kala Bagh who opined that Zarif Khan one of the assailants named in the first information report, was innocent.
5. On an application having been submitted by the accused party, the Deputy Inspector-General of Police, Sargodha Range transferred the investigation to Mukhtar Ahmad, Inspector, C.I.A. The Inspector, C.I.A. After investigation declared all the five respondents to be innocent and also opined that Sher Zaman, Muhammad Hanif son of Ramzan and Hayat Khan son of Ghulam Qadir had also participated in the occurrence alongwith the rest of the three accused, named in the first information report, namely Sultan Khan, Hafiz Ullah and Hayat Khan.
6. ' Before the investigation was taken up by Mukhtar Ahmad, Inspector, C.I.A. Muhammad Asghar Cheema, Deputy Superintendent of Police, Shahpur had also been entrusted with the investigation but he could not investigate for the reason that one of the parties did not appear before him.
7. The accused party not feeling satisfied with the investigation of Mukhtar Ahmad, Inspector, C.I.A.
8. Approached the Inspector-General of Police, Punjab who deputed Ghulam Dastgir Khan, D.S.P.
9. Crime Branch for investigation of the case. Ghulam Dastgir Khan, D.S.P. Also expressed opinion that the five respondents had not participated in the occurrence and sent the file with the recommendations to the Inspector-General of Police, Punjab. The Inspector-General of Police, Punjab, however, after going through the file directed that all the persons named in the first information report, be challaned and the present position is that all the accused named in the first information report including the respondents stand challaned for offences under section 302/307/148/149, P.P.C.
10. ' The petitioner who is the complainant in this case, has moved for cancellation of bail of the respondents granted by Mr. Inayat Ullah Cheema, Additional Sessions Judge, Mianwali vide order, dated 8-7-1984.
11. Learned counsel for the petitioner argued that all the respondents not only have been named in the first information report, but also have been assigned specific role of having fired with their respective tr guns, alongwith their other three companions, which had resulted in the death of three persons and injuries to two persons. Learned counsel while arguing about the results of the opinions expressed by different Police Officers, submitted that Fazal-ur-Rehman Tarin, D.S.P.
12. Mianwali who was the first officer to have expressed opinion regarding innocence of Zarif Khan, had in the case diary, dated 25-7-1984, noted that the defence produced by Zarif Khan was artificial and fake and that one Deputy Superintendent of Police who had earlier investigated the case had put questions in this regard and he had not given convincing replies. Learned counsel contended that the same D.S.P. Without recording extra evidence declared Zarif Khan innocent.
13. ' With regard to the investigation conducted by Mukhtar Ahmad, Inspector, C.I.A. Learned counsel for the petitioner contended that his opinion should not have been given much weight, keeping in view the fact that three senior officers i,e, Deputy Superintendents of Police, had earlier investigated the case in addition to the S.H.O. And except Fazal-ur-Rehman Tarin, D.S.P. Who had opined about the innocence of Zarif Khan, the rest had found all the five respondents to be responsible for having participated in the occurrence and that Fazal-ur-Rehman Tarin, D.S.P. Had also, barring Zarif Khan, recommended the challan of other four respondents. About the opinion expressed by Ghulam Dastgir Khan, D.S.P. Crime Branch, learned counsel submitted that the Crime Branch is headed by the Inspector-General of Police, Punjab himself and all recommendations by the Investigating Officers of the Crime Branch are forwarded to the Inspector-General of Police, Punjab for perusal and directions, and that since the Inspector-General of Police after having perused the file had directed that all the accused named in the F.I.R. Including the respondents, be challaned, much weight should not have been given by learned Additional Sessions Judge to the opinion expressed by the D.S.P. Crime Branch.
14. Learned counsel for the respondents contended that the parties admittedly were inimical towards each other and thus possibility of false implication could not have been ruled out and that it was in the light of this fact that Mukhtar Ahmad, Inspector, C.I.A. Had, after thoroughly investigating the case, came to the conclusion that all the five respondents had not participated in the occurrence.
15. Learned counsel submitted that although he was a junior officer, and the three Deputy Superintendents of Police who had earlier investigated the case, had given a different opinion, about the respondents, except the opinion expressed by Fazal-ur-Rehman Tarin, D.S.P. About Zarif Khan, the fact remains that Ghulam Dastigir Khan, D.S.P. Crime Branch had concurred with the opinion expressed by the Inspector, C.I.A.
16. ' Learned counsel submitted that the direction by the Inspector-General of Police, Punjab was merely a formal matter as he had not investigated the case himself and had only issued the direction after having gone through the file.
17. ' Learned counsel for the respondents also referred to the opinion expressed by Mukhtar Ahmad, Inspector, C.I.A. That three other persons, namely, Malik Sher Zaman, Muhammad Hand son of Ramzan and Hayat Khan son of Ghulam Qadir had also participated in the occurrence alongwith Sultan Khan, Hafiz Ullah and Hayat Khan son of Muhamamd Khan, and that these three persons had not only appeared before the Inspector but had also submitted affidavits to that effect, as well.
18. Learned counsel contended that this fact by itself was enough to create dents in the complainant's version.
19. ' It was next argued by learned counsel for the respondents that since after the release on bail, no allegation has-been levelled against the respondents of having taken undue advantage of the discretion exercised in their favour nor any allegation has been levelled that they had tried to tamper with the evidence. Learned counsel vehemently argued that for cancellation of bail, what requires consideration, is, has the discretion been exercised properly. In case the discretion appears to have been exercised, properly, the superior Courts generally have not considered it proper to interfere with the orders of bail passed by exercising discretion in favour of the accused.
20. Learned counsel laid stress on the point that the results of the investigation by the Inspector, C.I.A.
21. And the D.S.P. Crime, were enough to bring the case of the respondents within the provisions of section 497(2) of the Code of Criminal Procedure.
22. Learned counsel for the State supported the petition for cancellation of bail. The main submission of learned counsel was that the opinion expressed by the Inspector, C.I.A. Should not have been given much weight keeping in view the fact that more than one officers, senior to him had already, expressed a different opinion and that the opinion of the D.S.P. Crime Branch should not have been given much weight by learned Additional Sessions Judge, while granting bail, as the Inspector- General of Police, Punjab had not agreed with him and had directed that all the assailants be challaned. Learned counsel contended that in view of the directions of the Inspector-General of Police, Punjab who had examined the whole file, it cannot be stated with any amount of certainty that the case of the respondents fell within the provisions of section 497(2) of the Cr.P.C.
23. The time and the place of occurrence have not been disputed by any of the parties. The fact of existence of enmity between the parties ranging over a period of 20-25 years, the commission of murders inter se and the pendency of the cases inter se have also not been denied by any of the parties. It is also a matter of record that the three Deputy Superintendents of Police who had investigated the case, prior to the investigation conducted by Mukhtar Ahmad, Inspector, C.I.A. Had recommended the challan of the assailants except in the case of Zarif Khan about whom Fazal-ur- Rehman Tarin, D.S.P. Had opined that he was innocent. The weight of the opinion expressed by this D.S.P. Lessens to a much lower depth keeping in view the fact that he had expressed an opinion in writing before expressing the opinion of innocence of Zarif Khan, that his defence was artificial and fake. Although the Inspector, C.I.A. Is stated to have recorded statements of some persons and also having obtained their affidavits in favour of the respondents, about their presence at different places, other than the place of occurrence, but his conduct in not taking action against Sher Zaman, Muhammad Hanif son of Ramzan and Hayat Khan son of Ghulam Qadir makes his veracity doubtful. These persons, according to him had not only appeared before him but had given affidavits also. The opinion expressed by him that they being not Pathans, and that the complainant party was not prepared to given evidence against them, is of no consequence as the complainants believed and had produced evidence about the participation of the persons named in the first information report, and if the participation of some other persons had come to the knowledge of the Inspector, it was for him to have collected the evidence. If he was so convinced about the participation of the three persons he could have arrested them, after they had submitted affidavits and could have produced them before Magistrate for recording their confessional statements, and after that he could have made efforts to collect some evidence in support of their version and affidavits. In case, no evidence had come-forth then he could and should have taken steps to proceed against them under section 201, P.P.C. Of having intended to screen the murderers from legal punishment by giving such information about the occurrence of murder which they knew and believed to be false, and, for having attempted to cause disappearance of the evidence.
24. For these reasons, I do not think that the opinion of the Inspector, C.I.A. Should have been relied upon to consider that the case of the respondents fell within the provisions of section 497 (2) of the Code of Criminal Procedure.
25. ' Since the Inspector-General of Police, Punjab after having considered the material collected by the Deputy Superintendent of Police, Crime Branch, had not felt convinced about the feasibility or the correctness of the conclusions arrived at by the D.S.P. Crime Branch, I do not think the Additional Sessions Judge should have given much weight to the opinion expressed by the D.S.P.
26. Crime.
27. ' I have perused the impugned order keeping in view the contentions of learned counsel for the respondents that if it is not found that the discretion has not been exercised improperly, the bail granted by the lower Court should not be cancelled. The material noted above brings me to the conclusion that the discretion of grant of bail has not been exercised properly by the Additional Sessions Judge, rather the same has been exercised on a .Wrong consideration of the material produced before him.
28. ' The contention of learned counsel for the respondents that since there is no allegation that the respondents are tampering with the prosecution evidence and so their bail should not be cancelled, is not enough to uphold the order of grant of bail to the respondents.
29. ' For all the reasons enumerated above, this petition is accepted and the bail granted to the respondents by learned Additional Sessions Judge, vide order, dated 8-7-1984 is cancelled.