' This order will dispose of Criminal Miscellaneous No, 2386/B of 1983 and Criminal Miscellaneous No, 2387/B of 1983. These connected matters are applications for cancellation of bail allowed to the respondents. I first take up Criminal Miscellaneous No, 2386/B of 1983. This is an application for cancellation of bail allowed to Hakam Aii alias Haq Nawaz and Shaukat Ali respondents by the Additional. Sessions Judge Okara vide his order, dated 4-7-1983. A case is registered against them alongwith others under section 302/148/149, P.P.C. At Police Station Shahbore, District Okara, on 3- 8-1982. The allegation against both of them is that they alongwith others committed the murder of Muhammad Yusuf deceased. A perusal of the F.I.R. Indicates that Hakam Ali alias Haq Nawaz respondent was empty-handed and a mere spectator during the occurrence as no overt act is ascribed to him. So far as Shaukat Ali respondent is concerned, the allegation against him is that he fired at the deceased but misfired his shot on a tree. Thus, so far as Shaukat AU respondent is concerned, he did not cause any injuries to the deceased but is alleged to have misfired. The two co-accused described in the F.I.R. To have fired at the deceased which led to his death are Taj Muhammad and Zafar Ahmad co-accused who are not respondents in this petition. I have gone through the order of the Additional Sessions Judge and I am of the view that there was justification in allowing bail to them in the circumstances of the case. The only ground which is being raised by learned counsel before me is that the Investigating Agencies which investigated the matter, found the aforesaid two respondents guilty in the course of investigation. But that by itself is not sufficient when in the F.I.R. No overt act is ascribed to Hakam Ali alias Haq Nawaz respondent and the act which is ascribed to Shaukat Ali respondent did not imply any injuries to the deceased. In the light of what has been discussed above, since I have arrived at the conclusion that the Additional Sessions Judge was justified in allowing bail to these respondents in the circumstances of the case, I do not find any substance in the application for cancellation of bail (Criminal Miscellaneous No, 2386/B of 1983) which is accordingly dismissed.
2. I now take up Criminal Miscellaneous No, 2387/B of 1983. This is directed against Taj Muhammad and Zafar Ahmad respondents who have been allowed bail by the Sessions Judge Okara vide his order, dated 18-8-1983. They are co-accused of the above-mentioned two respondents. The part ascribed to them is specific in the F.I.R. It is stated in the that Taj Muhammad respondent fired a shot through his gun which hit Muhammad Yusuf deceased in his chest. Thereafter, second shot was fired by Zafar Ahmad respondent which hit the deceased at his back. The deceased ran for a short distance and then fell down and died. Thus, in the F. I. R. Specific part has been attributed to these respondents. Their bail was refused by Mr. Justice Kemal Mustafa Bokhary on 13-11-1982 in Criminal Miscellaneous No, 2784/B of 1982. Subsequently it is stated by learned counsel for the petitioner-complainant that on the basis of the statement under section 164, Cr.P.C. Of Umar Daraz who was stated to- be an eye-witness of the occurrence in the F.I.R. They moved a fresh application for the grant of bail before the Sessions Court and managed to obtain the same.
' It is conceded by the learned counsel for the parties before me that in the first investigation of the case which was conducted by Manzoor Husain S.1., he in the course of investigation found Zafar Ahmad and Taj Muhammad respondents as innocent and placed them in column No,
2. This investigation was subsequently confirmed by Saadat All D.S.P. Thereafter, it was again confirmed by Majid Ullah D.S.P.
' In other words, the three investigations which had been conducted previously in this case, Zafar Ahmad and Taj Muhammad respondents were found innocent in the course of the investigation and placed in column No,
2. The statement under section 164,Cr.P.C. Of Umar Daraz is to the effect that one Alamgir, servant of the deceased, was present at the spot at the time of the occurrence and that he himself was not an eye-witness of the same. He further stated that it was this Alamgir who came to him as well as Noor Din P.W. And told them that two unknown persons had killed the deceased. Thus, the statement o this witness, according to the Sessions Court, also supported the three investigations which had been conducted in the present case by different Investigating Officers and who had arrived at the conclusion that both the aforesaid respondents were found innocent in the course of investigation and placed in column No,
2. Another consideration which was taken note of by the Sessions Court is that on 31-10-1982 the complainant side moved a complaint before the Magistrate in which a different version of the occurrence was given from that what had been given in the F.I.R. I have gone through the contents of the said complaint and the version is somewhat different from the version given in the F.I.R. Since this was the position, the Sessions Court arrived at the conclusion that as two versions of the occurrence had been put forward by the prosecution itself in the challan case as well as in the complaint case, the case of the two respondents required further inquiry and that this was also an additional ground for allowing them bail. At this stage I asked learned counsel for the petitioner-complainant as to what is the position at present? In other words, was it at their instigation that fourth investigation was being conducted in the matter by Muhammad Mushtaq D.S.P. Crimes Branch? Learned counsel for the petitioner-complainant states that it was not at their instigation. I have asked Muhammad Mustaq D.S.P. Crimes Branch who is present with the record of this case as to what is the stage of his investigation. His reply is that the complainant side was not joining the investigation as they had refused in writing that they would not assist the police investigation, in the instant case, because the previous three investigations had all been conducted wrongly, due to the influence of the accused party and that they would rather prefer to pursue the complaint case. Therefore, h-is investigation was still inconclusive. At this stage learned counsel for the petitioner-complainant had vehemently argued that so far as Zafar Ahmad and Taj Muhammad respondents are concerned, the part ascribed to them in the F.I.R. Is exactly identical to the part ascribed to them in the complaint case and that in respect of these two respondents there is no inconsistency in the F.I.R. Version and in the complaint version. His reasoning is that there is nothing on the record in favour of Zafar Ahmad and Taj Muhammad respondents except that the previous investigations conducted by the police, which were three in number, had found them innocent in the course of the investigation and placed them in column No,
2. On this point learned counsel submits that this was not definitely fresh ground because it has already been considered by Mr. Justice Kamal Mustafa Bokhary who was pleased to observe in his order, dated 13-11-1982, while rejecting the bail application of the respondents, that the mere fact that the police investigation had held a different view of the investigation did not entitle the respondents to the benefit of bail when there was direct allegation of fire-arm injuries attributed to each of the respondents in the F.I.R. It was a witnessed occurrence and there still were some eye-witnesses left who appeared to support the prosecution version, although Umar Daraz did not support the same in his statement under section 164, Cr.P.C.
At this stage learned counsel for the petitioner-complainant wants time to produce some authorities in support of his argument to the effect that even if three investigating agencies had found the accused innocent in the course of investigation and placed them in column No, 2, if the allegations are clearly made out in the F.I.R. Then the police investigation should be considered merely as opinion of the police and not binding on the Court for the grant or refusal of bail. I am adjourning this matter to 9-1-1984. To come up on 9-1-1984.
' In continuation of my order, dated 3-12-1983 learned counsel for the petitioner/complainant has placed a long-list of cases on record decided by the Supreme Court in his favour as well as against him. He is relying mainly on the principle laid down in Manzoor and 4 others v. The State PLD 1972 SC 81 in which the Supreme -Court had observed that it was obviously not correct to depend upon the ipsi dixit of the police regarding guilt or innocence of an accused person even in the matter of deciding the question of bail. The reasoning of the learned counsel is that in the instant case the F.I.R. Was lodged promptly and specific parts had been ascribed to both the respondents, namely, Taj Muhammad and Zafar Ahmed in Criminal Miscellaneous No, 2387/B of 1983. It was a witnessed occurrence and three eye-witnesses, namely, Liaquat, Noor Din and Sadiq were still supporting the prosecution version to the effect that the aforesaid two respondents fired shots through their fire- arms which had hit the deceased in the chest and back. It was submitted that only one of the alleged eye-witnesses, namely, Umar Draz had resiled from his earlier statement under section 161, Cr.P.C. In his subsequent statement recorded under section 164 Cr.P.C. However, according to him the remaining three eye-witnesses are still supporting the prosecution version. He further submitted that in the complaint case which had been lodged at the instance of the petitioner/complainant the part ascribed to the aforesaid two respondents remained the same and there was no different version given of the occurrence so far as the parts ascribed to the aforesaid two respondents was concerned. He stated that in the light of these facts the three investigations held one after the other in the instant case arriving at the conclusion to the effect that the aforesaid two respondents had valid alibi and that, therefore, they were found innocent in the course of investigation and placed in column No, 2 were merely the opinion of the police and in the light of the Suprethe Court authority already cited should not ,be considered in the matter of deciding the question of bail.
2. I have carefully considered this aspect of the case. Learned counsel for the aforesaid respondents, on the other hand, has placed reliance on Khushi Muhammad and others v. State 1978 SCM R 360 as well as Karam Din v. Muhammad Ashraf and 2 others 1975 SCMR 230. In the subsequent case cited four Investigating Officers had found the accused innocent in the course of investigation and placed them in column No, 2 and that the order of the High Court in not cancelling the bail of those accused was held to be correct. The reason is that if three investigating agencies had found the aforesaid respondents innocent in the course of investigation then it was a case of further enquiry and in that view of the matter the Sessions Court was justified in allowing bail to the respondents.
' In my view in the instant case since three investigating agencies have found the aforesaid respondents innocent in the course of investigation and placed them in column No, 2 their case was of further enquiry and there was justification in allowing them bail. In that view of the matter this application for cancellation of bail is dismissed.