' This is an application for grant of bail filed by three persons, namely, Bati Khan, Manzoor Ahmad and Muhammad Riaz, in a case registered against them and others, vide F.I.R. No, 168/89, dated 5- 3-1989, for offences under section 302/307/148/149 of the P.P.C. At Police Station Malikwal, District Gujrat.
2. According to the F.I.R., the petitioners, alongwith four others, attacked and killed Nadir and caused injuries to Moonda, P.W. The petitioners were said to be armed with .12 bore guns. Riaz petitioner was said to have raised a `Lalkara' that Nadir and Moonda would be killed. He fired a shot with his gun hitting Nadir on the back of his head. Second shot was fired by Manzoor petitioner which hit Nadir on the thumb and finger of right hand. Bati petitioner fired and injured Moonda on the front of his chest. Nadir died at the spot.
3. I have heard the learned counsel for the petitioners as well as the learned counsel for the State and the complainant.
4. Bail is primarily claimed on the ground that all the petitioners were found to be innocent by the police during the investigation and their names placed in column No,2 of the challan. The investigation was conducted by Syed Bashir Hussain Shah, S.H.O., Police Station Malikwal and the finding of innocence given by him qua the petitioners was confirmed by the D.S.P. Concerned. It was further urged that neither any crime empty nor crime weapon was recovered from the petitioners. The learned counsel for the petitioners placed reliance on Rehmat Ullah alias Rehman v. The State and another 1970 SCMR 299, Ghulam Rasul v. The State and 4 others 1982 SCMR 440, Ibrahim v. Niaz Muhammad 1985 SCMR 82 and Muhammad Sadiq v. Sadiq etc. PLD 1985 SC 182.
The learned State counsel opposed the grant of bail. He was supported by the learned counsel for the complainant, who urged that the F.I.R. Was promptly lodged within 80 minutes of the occurrence and there was no occasion for false implication of any accused. He further urged that there was clear ocular evidence to show that the petitioners had played an active role in the commission of the offence and that the opinion of innocence given by the police in their favour was not based on sound material. In this connection, he pointed out that there was direct allegation against Riaz that he caused the fatal injury to Nadir deceased and that Manzoor had fired at Nadir and injured him. Similarly, Bati fired at and injured Moonda on the chest who narrowly escaped death. The learned counsel for the complainant pointed out that the police had, without sufficient, basis believed the alibi of the petitioners. He placed reliance on Iqbalur Rehman v. The State p L D 1974 SC 83, Muhammad Afzal v. Nazeer Ahmad etc. 1984 SCMR 429 and Muhammad Khan and others v. The State and others 1988 SCMR382.
5. Admittedly, the occurrence had taken place at 5-30 a.m. And the F.I.R. Was recorded at 6-50 a.m.
On the statement of Akbar son of Bahawal at Police Station Malikwal situated at a distance of 13 Kms. From the spot. Thus, the F.I.R. Was promptly lodged and there was no time for conferring and consultation for false implication of the accused persons. Moreover, Moonda, the injured witness, was examined by the doctor in the hospital at 7-30 a.m. And was examined by the police on the same day. He clearly stated in his statement under section 161 of the Cr.P.C. That Riaz petitioner fired with his .12 bore gun hitting Nadir deceased on backside of the head. The second shot was fired by Manzoor petitioner resulting in injuries to Nadir deceased on the thumb and finger of right hand. About Bati petitioner he stated that the said accused fired at him hitting on front side of his chest. The prosecution case is also supported by the two other eyewitnesses, namely, Manzoor son of Mutalli and Shafqat son of Nadir. In this view of the matter, there appears to be considerable force in the submission made by the learned counsel for the complainant that the opinion of the police regarding the innocence of the petitioners was not sufficient for grant of bail to them. The opinion of the police is not legal evidence and not binding on the Court. The judgments relied upon by the learned counsel for the petitioners do lend support to the proposition that where the police comes to a definite conclusion on consideration of the entire material that an accused person is innocent and that there are no reasonable grounds for believing that he has committed a non- bailable offence, then the, accused is entitled to grant of bail as a matter of right under section 497(2) of the Cr.P.C. However, no hard and fast rule can be laid down in this connection because grant or refusal of bail depends upon the quality of the material available for basing opinion of innocence thereon and the reasonableness of the police opinion in each case. In Muhammad Khan and others v. The State and others 1988 SCMR 382, the opinion of innocence given by the Investigating Agency was not accepted by the Ilaqa Magistrate and his order refusing bail was upheld by the High Court and the Supreme Court. In this case, the police had even recommended cancellation of the case against the accused but cancellation was refused by the Ilaqa Magistrate with an observation that the police had abused certain evidence, while making the report. In Muhammad Afzal v. Nazir Ahmad and others 1984 SCMR 429, the opinion of innocence given by the police was based on the statements of respectable persons like the Imam of the local mosque and the Vice-Chairman of the Union Council. Hence, bail was allowed to the accused by the High Court and the order was maintained but the Supreme Court was pleased to observe as under:- "The relevancy to the question of bail of the opinion of the investigating agency in regard to the complicity of an accused person will depend on the soundness of the material upon which it is based. If the investigation brings to light facts which may furnish prima facie a reasonable ground for believing that an accused though named in the F.I.R. Is not guilty, the opinion of the Investigating Officer based on such facts will be relevant."
' In Iqbalur Rehman v. The State PLD 1974 SC 83 the petitioner had claimed bail in the High Court on the ground that his plea of alibi was supported by over 100 persons of the locality who had appeared before the Police Officer during the investigation of the case and that he was found innocent during the investigation. Bail was refused by the High Court and the order maintained by the Honourable Supreme Court with the following observation:- "We find that the first information report clearly asserts that Iqbalur Rehman was present as a member of the unlawful assembly, that he fired with his gun at Yaqub alias Lelia who was hit and died instantaneously. It was stated on behalf of the complainant as well as the State that these allegations in the F.I.R. Which was made as a dying statement by the deceased Muhammad have been supported by the prosecution witnesses. In the presence of these allegations and the supporting evidence, the High Court was right in observing that the opinion of the Investigating Officer regarding the innocence of Iqbalur Rehman or his absence from the place of occurrence at the relevant time could not justify the grant of bail at this stage. The plea of alibi put forward by him, and supported by several residents of the locality, would have to be examined at the proper time by the trial Court. It could not, therefore, be said that there were no reasonable grounds for believing that Iqbalur Rehman was guilty of an offence punishable with death or transportation for life. The High Court was therefore, right in refusing bail."
6. In the present case, the police recorded statements of some witnesses in support of the plea of alibi raised by them. Bati accused was said to be present in the house of his mother at a distance of only three Kilometers at the time of the occurrence. Similarly, Riaz accused was shown to be present in his own house in the same viltage at a distance of 5/6 Acres. Manzoor accused was said to be present in Chak Fateh Shah and his plea of alibi was supported by a resident of Qadirabad.
The material relied upon by the Investigating Agency was not of such a quality as may negative the petitioners' complicity in the crime at this stage. The kind of the statements recorded by the police in the present case can always be procured from the supporters/relatives of the accused persons in every case. The opinion of the Investigating Officer regarding the innocence of the petitioners does not appear to be based on sound material. The worth and value of the evidence in support of the plea of alibi of the petitioners can appropriately be determined by the trial Court after recording evidence of the parties. Suffice it to say at this stage that there is sufficient material available on the record to show that the petitioners, armed with deadly weapons, formed an unlawful assembly, caused death of Nadir deceased and injuries to Moonda P.W. In the peculiar circumstances of this case, the plea of alibi is not sufficient to negative the existence of reasonable grounds for believing that the petitioners are guilty of the offences alleged against them.
7. For the foregoing reasons, I find no merit in this application and dismisse the same.