1. This is a petition for bail in a murder case registered on 17-1-19 72. Three persons, namely, A.I Khan, Muhammad Hayat and Attar Khan have been accused of having caused the death of Malik Yaran Khan, by firing at him with guns. A.I Khan is stated to have fired the first shot by aiming at the deceased which allegedly hit him on- the back side of the head. The others "also fired" and the deceased having fallen on the ground expired at the spot. Ghulam Muhammad and Sikandar Khan were accused of having conspired with the above-mentioned three accused for this murder. The report was lodged by the 'son of the deceased who is a practising lawyer at Mianwali.
2. As a result of the police investigation, the names of Ghulam Muhammad and Sikandar Khan (having been declared innocent) were placed in column No. 2. The learned Sessions Judge released these two persons on bail. He refused to allow bail to the petitioner whose case, in 6o far as the finding of the police is concerned, was not different from that of Ghulam Muhammad and Sikandar Khan but in spite of having declared him innocent, his name was not placed in column No. 2. On account of this distinction the learned Judge dismissed his application.
2. The main contention raised in the High Court is that in the opinion of a D. S. P. Who himself investigated the case in depth, the petitioner was innocent but the police officer thought that it was proper that the final decision on the question of guilt or otherwise should be given by the Court.
3. I have heard the learned counsel for the petitioner and the State at also Mr. M. Anwar who appeared on behalf of the complainant, and have perused the police file.
4. The D S. Ps. Investigated this case, of course, in addition to the investigation by a Sub-Inspector who, in the first instance, gave opinion favourable to the petitioner but subsequently is said to have changed it: The First D. S. P. It appears, had serious doubts about the guilt of the petitioner but did not take the courage of giving reasons to support thereof and thought that the decision should be left to the Court. But the second D. S. P. After giving detailed reasons in support of his opinion that the petitioner was innocent, agreed with the first D. S. P. That the matter should be left for decision to Court. I appreciate the position taken up by both the. D. S. Ps. In so far as the formal challan against the petitioner is concerned. They refrained from taking the final responsibility qua the guilt or innocence of the petitioner. In such a case when the prosecution, which is led by a lawyer, continues to assert the accusation against an accused person it is not an improper course for a police officer to challan the accused despite his own opinion that he is innocent. Such a course, as discussed in my judgment in CH. Misc. No. 2420/B of 1971 is permissible under the Criminal Procedure Code and is clearly visualized in subsection (2) of section 497, Cr. P. C. After reading the Zimnis by the second D. S. P., I came to the conclusion that on account thereof the petitioner was entitled to bail.
5. Mr. M. Anwar, however, contended that the opinion should not be accepted even for the purpose of bail because firstly, it is based only on the moral conviction of the D. S. P.; secondly some other officer (not known to the learned counsel but definitely not an investigating officer) did not agree with the opinion of the D. S. P., and thirdly, in law an opinion cannot be taken note of in favour of the accused. In this behalf, he has relied on Manzoor and 4 others v. The State (PLD 1072 SC 81 I have discussed the question of the effect or the opinion of innocence by, the police on the question of bail of the accused in detail in the case cited above. The entire case-law was then considered. It all depends upon the circumstances of each case as to whether such an opinion by a police Investigating Officer should be given weight for the purpose of consideration of question of bail. In this case, the opinion of the second D. S. P. Is not just a moral law of the matter but is based on his moral conviction on a proper investigation conducted by him wherein he examined many witnesses including those who deposed that the petitioner was not involved in the attack and that he was present somewhere else. Two witnesses from near the place of occurrence also stated before the police that the attack was launched by two persons who could not, at that time, be identified. They also gave a different version of the occurrence. Ail this material, which even for the purpose of trial when properly produced before the Court would be admissible evidence, was before the D. S. P. When he expressed his final opinion. However, in addition to this, he mentioned the fact that he made further secret inquiries. I do not consider it illegal for an Investigating Officer, though it would be absolutely illegal for a court, to make secret inquiries during the investigation in order to collect evidence and reach certain conclusions with regard to the participation of an accused person in the commission of the offence. However, the secret inquiry is not deemed the sole basis of the opinion of the police officer and there being sufficient other material, on the basis of which he came to the conclusion that the petitioner was innocent, I am of the view that such an opinion can be taken note of for purpose of deciding a bail application. The circumstance that some other police officer, without himself investigating the case, disagreed with the D. S. P. Does not necess--arily mean that he disagreed with his opinion on merits of the case. Moreover, it is the opinion of the Investigating Officer which is to be counted and not other persons whose capacity would not be more than that of advisory.
6. Considering all the circumstances of the case, I am of the view that the petitioner can take due benefit of the aforesaid opinion which I have no reason at this stage to doubt as dishonest or mala fide. Accordingly, I accept this petition. The petitioner shall be released on bail if he furnishes bail bond in the sum of Rs. 25,000 with two sureties each in the like amount to the satisfaction of the learned committing Magistrate.
7. Mr. Anwar, at the close of the arguments prayed that I should observe that if the petitioner is committed to stand trial, this order shall not be a bar to the learned committing Magistrate cancelling the bail. This aspect of the matter as well was discussed by me in the case referred to earlier. I need not make any additional remarks. The law shall have its course.