KHIZAR HAYAT, J.- Abdul Ghafoor alias Ghafoori stands arrested in case F.I.R. No. 173/89 dated 3.10.89 registered under sections 302/307/148 read with sections 109 and 149 PPC, at P.S. City Depalpur, District Okara. His bail plea was declined by the lower court, hence this bail application.
2. According to the prosecution, Muhammad Akbar deceased with his son Nawaz was going to his fields at the fateful time when Ghafoor petitioner and his father Tufail armed with pistol way-laid and fired at them due to previous enmity. Muhammad Tufail's shot hit Akbar as a result of which he fell dead. Ghafoor petitioner fired at Nawaz P.W. Which hit him in the chest which resulted in grievous injury found to be dangerous to life. According to the prosecution. Ibrahim and 5 other persons armed with deadly weapons had been raising lalkaras during the occurrence. All the accused were arrested and during the investigation it was found by the local police vide Zimni recorded by Faqir Mohammad SI on 23.10.89. That the petitioner did not participate in the occurrence and that it was Tufail alone who fired at Akbar deceased as well as at Mohammad Nawaz, injured witness. Mushtaq Hussain DSP Depalpur also investigated the case and agreed with these findings vide his Zimni dated 24.10.89, and recommended discharge of the petitioner and the other five accused, however, the learned court allowed bail to five co-accused of the petitioner but declined the same relief to him, hence this application.
3. I have heard the learned counsel appearing for the petitioner as well as the State, and the complainant. Learned State counsel submitted that no doubt the petitioner's name has been placed in column No. 2 of the challan on the basis of the finding of innocence, yet he does not deserve to be released on bail because the police findings are not based on good and sound material inasmuch as that the defence witnesses had not seen the occurrence and their evidence is in lire nature of hearsay. Learned counsel appearing on behalf of the petitioner disputed the assertion and stated that in view of the findings of the police that the petitioner had not participated in the occurrence, he has earned a right to be released on bail in view of Sadiq's case reported as P.L.D. 1985 SC 182.
4. I have considered the contentions of the learned counsel for the parties in the light of Sadiq's case (supra) and also perused the record. The Police Officer who produced the record has read the statements of the defence witnesses in open Court. They claim to be eye-witnesses and stated that Tufail alone had fired at Akbar deceased and Mohammad Nawaz, the injured witness. In these circumstances, therefore, it cannot be said that the findings of innocence recorded by the police are not based on consideration of entire material on record. Since the veracity of the defence witnesses has to be ultimately adjudged by the learned trial court, therefore, I refrain from making any comments in this regard lest it should prejudice the case of any party. However, in view of the fact that the petitioner has been held to be innocent and his name has been placed in column No. 2, in view of the material on record, therefore, his case squarely falls under sub-section (2) of section 497 Cr.P.C, and the principle laid down by the Supreme Court in Sadiq's case (P.L.D. 1985 S.C.
182) is fully attracted. In these circumstances, I feel disposed to allow this petition and direct that the petitioner be released subject to his furnishing bail in the sum of Rs. 30,000/- with two sureties each in the like amount to the satisfaction of trial Court.