' The petitioner Iqbal son of Rabnawaz, caste Baloch, resident of Miran, D.I. Khan charged for the offence punishable under section 302/34, P.P.C. Has submitted this application under section 497/498, Criminal Procedure Code for his release on bail mainly on the ground that as he has been placed in Column No.2 of the Challan, therefore, there is a scope for further enquiry into his guilt.
The bail application on this ground was dismissed by the learned Sessions Judge, D.I. Khan vide order dated 10-7-1990. Faiz Muhammad (complainant) made a report of tin occurrence to the police on 19-8-1989 at 10-45 hours. The police registered the case under section 302/34, P.P.C. Vide F.I.R.No.80 dated 19-8-1989 Police Station Paroa. The report was that in the morning on that day, Faiz Muhammad alongwith his uncle Allah Bakhsh deceased had gone to plough the land owned by Dr. Khalid. Allah Bakhsh was ploughing the field while he was cutting grass that in the meanwhile accused Mushtaq, Iqbal (petitioner), Altaf and Raza duly armed came there. Raza accused called Allah Bakhsh deceased to come near to him, and then Mushtaq accused armed with .12 bore rifle fired three shots at the deceased, who was hit and fell on the ground. Iqbal, Altaf and Raza accused attacked him with axe, Danda and Vahola. Allah Bakhsh died on the spot. The accused decamped from the spot. Muhammad Khan, Ghulam Hussain, Khuda Bakhsh reached the place and had seen the occurrence. The motive shown was That a day before the occurrence, accused and the deceased had exchanged hot words and were claiming that piece of land. The matter was compromised but the accused party was not happy over it. On the same day Faiz Muhammad complainant recorded his supplementary statement involving his name-sake Faiz Muhammad son of Ghulam Sarwar in the crime saying that due to worries of murder of his uncle, he forgot to name, Faiz Muhammad as an accused in the F.I.R, although he was present on the spot and had given axe blows to the deceased after he was fired at by Mushtaq accused and that the handle of the axe was broken and was left on the spot. Mushtaq and Iqbal accused were arrested on 20-8-1989. On 21-8-1989 Mushtaq was produced before the Magistrate for recording confession, who besides confessing the crime involved his brother Altaf, Raza and Faiz Muhammad as co-accused and said nothing against Iqbal accused. Iqbal's application for bail on merits was dismissed by the lower Court. After the completion of investigation, challan was put in Court, against Mushtaq, Altaf and Iqbal. However, Iqbal's name was shown in Column No.2 of the Challan, and name of Faiz Muhammad was altogether omitted. Iqbal then applied for bail to the Sessions Court mainly on the ground that his name having been shown in Column No.2, the case was of further enquiry entitling him to the concession of bail. This prayer was disallowed by the learned Sessions Judge, D.I.Khan vide order dated 10-7-1990. He has now approached this Court for his release on bail.
3. Mr. Muhammad Karim Anjum Qasuria, Advocate counsel for the accused-petitioner argued that since the name of the accused-petitioner is shown in Column No.2 of the challan, he is entitled to bail. He referred to the supplementary statement of the complainant, wherein Faiz Muhammad was named as one of the accused but in the challan he is not shown as such. Learned counsel argued that the complainant who did not charge Faiz Muhammad in the F.I.R. And charged him in the supplementary statement and that also falsely should not be believed. In support of his contention that an accused named in Column No.2 is entitled to bail reliance was placed on the following reported authorities:--
(1) 1985 P Cr! L J 2624.
(2) 1988 SCMR 1452.
(3) PLD 1990 Peshawer 118.
4. Mr. Faizullah Khan, the learned State Counsel opposed the bail application of the petitioner. It was contended by him that accused-petitioner is not entitled to bail merely on the ground that his name is shown in Column No.2 of the challan. He, however, produced no case-law in support of his contention.
5. I have heard the learned counsel for the parties and have also perused the record and gone through the case-law cited on the subject. There have been judicial pronounceinents in criminal cases on the subject in hand viz. Whether an accused of Column No.2 is entitled to bail or not. In the reported case of Badiuzzaman 1985 P Cr. L J 2624 the bail to the accused-petitioner shown in Column No.2 was allowed because on completion of investigation he was exonerated of the charge and instead Ghulam Nabi confessing accused was sent for trial. In the changed circumstances of the case even the names of witnesses earlier mentioned were substituted by another set of witnesses. In allowing bail in Badiuzzaman's case, Abdul Karim Khan Kundi, J. Placed reliance on 1981 SCMR 565, 1982 P Cr. L J 529, 1982 P Cr. L J 1162 wherein the view taken is that accused declared innocent and placed in Column No.2 is entitled to bail as he succeeds to make out a case for further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. In so far as the reported cases 1985 P Cr. L J 1157 and 1985 P Cr. L J 799 are concerned it was observed by the learned Judge that the Lahore High Court had allowed bail on the strength of authorities reported in 1984 SCMR 429 and 1984 SCMR 521 wherein opinion of investigating officer about the innocence of the accused was based on sufficient material on record. In another reported case Shadi Khan v. Matiullah 1989 P Cr. L J 2253, Muhammad Bashir Khan Jehangiri, J., relying on 1989 S CM R 899, 1984 SC MR 429, 1985 P Cr. L J 1157 and 1989 P Cr. L J 638 cancelled the bail and deprecated the tendency of plea of innocence of accused being advanced during investigation and accused declared innocent and placed in Column No.2 of challan on the basis of Badiuzzaman's case. The proposition that "the opinion of investigation officer about the innocence of the accused has always weighed with the Courts in granting bail to the accused subject to the condition that it receives due justification from the material on record" enunciated by the august Supreme Court and referred to in Badiuzzaman's case was, however, accepted in Shadi Khan's case. Now what the Courts are required to do is to see whether the opinion of investigation officer about the innocence of the accused shown in Column No.2 of Challan is supported from the material on record and in the light of overall material on record and in view of the specific provisions of sections 497, 498, Cr.P.C. And not merely relying on the opinion of the investigating officer showing the accused in Column No.2 of the Challan that the bail petitions are to be disposed of. In the case reported in 1989 SCMR 899 on the findings of further enquiry into the guilt of the accused was cancelled, for, the Courts below granting bail said nothing about the reasonable grounds. His Lordship held that grant of bail as of right under section 497(2), Cr.P.C. Is possible only when a finding is rendered that "there are not reasonable grounds for believing that accused has committed" the particular offence and that without such finding, remark that it is a case of "further enquiry" would be least helpful. In 1989 P Cr. L J 639 bail was refused to an accused of Column No.2 as the material on record was not supporting the plea of alibi.
In the present case petitioner's plea for bail is supported from the material on record. He is charged in the F.I.R. Alongwith others but Faiz Muhammad (complainant) in his supplementary statement made addition of one more accused his namesake Faiz Muhammad, who is not shown as an accused in the challan. Mushtaq co-accused in his confessional statement excluded the petitioner's name, but has deposed against Faiz Muhammad. Thus on the basis of this material name of Iqbal petitioner has been shown in Column No.2 of the challan. I am, therefore, of the view that there are not reasonable grounds for believing that the accused-petitioner has committed the offence charged with but there are sufficient grounds for further enquiry into his guilt bringing the case within the ambit of subsection (2) of section 497, Cr.P.C. The petitioner was allowed bail vide my short order dated 20-1-1991. The above are the reasons in support of the said order.