The petitioner who is involved in a case under section 17 of Ordinance VI of 1979, arising out of F.I.R.
No.416, dated 16-11-1989 registered at Police Station Kunjah, District Gujrat, seeks to be admitted to bail.
2. The complainant, who is a salesman at Shahdaula Filling Station, Sargodha Road, Kunjah, lodged an F.I.R. Wherein he stated that on the night between 15/16-11-1989, he alongwith Masood Ahmad Cashier and Muhammad Afzal F.C. Were present there. At about 4-30 a.m. a car came there, its number plate was besmeared with mud and the first and last number could be read as 48.22. Two of the inmates of the car, who had muffled their faces asked the complainant to hand over the cash to them. They took the complainant in the cabin. One of them who was armed with .7 mm rifle fired at the drawer of the table. Meanwhile, Muhammad Afzal F.C. Fired with his rifle, but it did not hit anyone. The second culprit is alleged to have fired a burst with Klashnikov, which hit Muhammad Afzal F.C. On different parts of his body. Thereafter the culprits took Rs.5,000 from the safe and also the rifle of Muhammad Afzal F.C. It is also alleged that the aforesaid accused persons had committed dacoity at Lucky Star Petrol Pump.
3. Learned counsel for the petitioner has raised the following contentions in support of this petition:- - (1)that the petitioner is not named in the F.I.R.; (2)that no identification parade was held to verify whether the petitioner is the same person who committed the alleged dacoity at the Petrol Pump after his arrest on 23-5-1990, though his judicial remand was obtained for that purpose till 6-6-1990; (3)that the two persons, namely, Muhammad Yousuf and Rashid Ahmad, on which the prosecution relies, that they saw the petitioner alongwith his co-accused passing near them, when they were changing the punctured tyre of their car, have sworn affidavits disowning their so---called police statements; and (4)that the statement of Maqsood Ahmad, Cashier of Lucky Star Petrol Pump under section 161, Cr.P.C. Is a fabricated one as it is undated. In addition to that, that statement by itself constitutes a distinct offence, for which a separate F.I.R, should have been recorded and the Police Officer who failed, to do so is guilty of an offence under section 24 of the Police Act.
On the basis of the aforesaid contentions, learned counsel submits that the case against the petitioner is one of further inquiry and he is entitled to bail- as a matter of right.
4. Learned counsel for the State assisted by the Police Officer, submitted that the petitioner was named in the statement of Maqsood Ahmad under section 161, Cr.P.C., and two persons, namely, Yousuf and Rashid saw the petitioner alongwith his co-accused near the canal bridge. In addition to that, he submitted that rifle of Muhammad Afzal F.C. Which the accused took away at the time of commission of dacoity was recovered on 27-11-1989, when the petitioner was proclaimed offender, hence there is sufficient material available on record to connect the petitioner with the crime and he is not entitled to bail.
5. After hearing the learned counsel for the parties and perusing the police record, I find substantial force in the submissions of the learned counsel for the petitioner. At present, sufficient material is not available on the record, which could prima facie connect the petitioner with the crime, hence, the case against the petitioner is one of further inquiry. The petitioner is accordingly admitted to bail in the sum of Rs.30,000 (thirty thousand only) with one surety in the like amount to the satisfaction of the trial Court.
6. Before parting with this order, I would like to observe that I directed the Law Officer to inform the S.P., Gujrat with respect to the misconduct of the Investigating Officer, who deliberately spoiled the prosecution case by not recording a separate F.I.R. With respect to the incident which happened 4 Lucky Star Petrol Pump. Due to this negligence on the part of the Police Officer, the petitioner has to be released on bail, as no legal evidence could be collected against him. The Law Officer informed me that departmental enquiry against the said police Officer has been initiated. I expected that the competent authority would take appropriate action against the Investigating Officer. A copy of this order should be sent to the S.P. Gujrat, for compliance.