ORDERKHIZAR HAYAT, J.- This is a petition for granting bail to Yameen, petitioner, who stands arrested in case FIR No. 379/93 dated 23.6.1993, under section 302/109/34 PPC, registered at Police Station Saddar Sheikhupura, at the instance of Muhammad Hussain, brother of Arshad Ali (deceased).
2. According to the FIR, Muhammad Yaqub s/o Allah Dad Jat owed Rs. 3000/- to Arshad Ali (deceased) which the former had obtained from the latter 6/7 months earlier to meet the expenses of his own as well his two sisters' marriages. The deceased demanded his money back 1 months before the occurrence which led to a quarrel between the deceased on one side and Muhammad Yaqoob and his brother Akram on the other wherein they exchanged abuses. The villagers however intervened and separated them. Muhammad Yaqub etc went away, issuing threats to Arshad Ali to teach him a lesson. On the day of occurrence i.e. 23.6.1993 at 530 p.m., Arshad Ali (deceased) was returning home from his tube-well on his mare, while Muhammad Hussain, complainant, Ghulam Muhammad, and Abdul, PWs, were following him on foot; When the deceased reached "Sem-Nala", Muhammad Yaqub and Muhammad Akram armed with Khanjars and Yameen, petitioner, armed with a knife came out of the hiding and confronted him. Yaqub raised a Lalkara that they would teach him a lesson for abusing him. Yameen, petitioner, allegedly caught hold of the reins of the mare of the deceased. Yaqub inflicted two Khanjar blows in the chest of Arshad Ali (deceased) while Muhammad Akram pulled the deceased down from the mare and caused injuries with Khanjar in his chest. Yameen, petitioner, also caused two injuries in the abdomen and nose of the deceased. More Mows were showered at the deceased by all of them and decamped. It was also stated that Allah Dad s/o Din Muhammad had abetted the crime by instigating the accused to kill the deceased. According to the Post Mortem Report the deceased suffered 18 injuries which included 11 incised injuries caused with sharp-edged weapon and the rest with blunt weapon. Of them three incised injuries were found to be fatal. The petitioner was arrested on 17.7.1993 and his co-accused Yaqub was arrested on31.7.1993 but Akram is still at large.
3. During the investigation, Muhammad Shoib, Inspector, vide his case diary dated 29.7.1993 held that the petitioner was not present at the time of the commission of the instant murder. However the petitioner has been challaned to Court under the direction of DSP City Sheikhupura. The petitioner applied for grant of bail to the Additional Sessions Judge, Sheikhupura, who declined his prayer, hence this petition.
4. Learned counsel for the petitioner submitted that the petitioner is Rajpoot having no commonity of purpose with other co-accused who are Jat; that he had no motive to kill Arshad Ali (deceased); that Muhammad Hussain, complainant, had a grouse against him for he was elected/selected as Chairman Zakat & Ushr Committee against his wishes; and that there exist sufficient and sound material on record on the basis whereof Police Inspector Shoib declared him innocent, therefore, he was entitled to grant of bail. In this connection he has referred to N.L.R. 1990 Criminal Law Judgments 427, 1974 P. Cr.LJ. 450, NLR 1990 Cr.LJ. 439 and 1984 P.Cr.LJ. 425. Contrarily learned counsel appearing on behalf of State has opposed the petition saying that the plea of alibi raised by the petitioner is belated and therefore, hardly carries any weight. According to him, the opinion of the Investigating Officer declaring the petitioner as innocent is inadmissible in evidence and that on the basis of such a fmding the petitioner cannot claim his release on bail. Learned counsel appearing on behalf of the complainant has vehemently opposed the petition saying that deeper appreciation and evaluation of evidence is not permissible at this stage and that statements of eye-witnesses recorded u/s 161 Cr.P.C., mentioned in FIR are sufficient to furnish reasonable ground for believing that the petitioner is"guilty of offence of murder, hence he is not entitled to grant of bail, particularly because he is accused of giving fatal blow in the abdomen of the deceased. He has mainly relied on 1985 P.Cr.LJ. 1157 and 1993 P.Cr.LJ. 2403.
5. Muhammad Shoib, Inspector, vide case diary dated 29.7.1993 found the petitioner as innocent.
DSP City Sheikhupura, vide case diary dated 6.8.1993 found the petitioner as guilty and directed that he be challaned. The question for determination, therefore, is that whether or not the petitioner, in view of conflicting findings given by police investigators, can be granted concession of bail or not? It is well settled that only tantative assessment of evidence collected by the Investigating Agency is made while considering question of grant of bail to an accused and that if a police officer or a Court at any stage of investigation, inquiry or trial come to the conclusion that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, then such accused is entitled, as of right, to bail under sub-section (2) of section 497 Cr.P.C. If any authority is needed on the subject, reference may be conveniently made to Ismail's case (PLD 1989 SC 585).
6. Now it is to be seen whether the opinion expressed by Muhammad Shoib, Inspector is based on sound and sufficient material or not? On 23.6.1993 Bashir and Ali Muhammad, PWs, told the Investigating Officer that in their presence Allah Dad instigated his sons Yaqub and Akram that it was a matter of shame for them that Arshad Ali (deceased) who had cut ear of Yaqub was roaming about freely, so they must take revenge and should better kill him. The petitioner after his arrest on 20.7.1993 pleaded innocence saying that on the relevant day, he happened to pass near the house of Allah Dad accused on his way to Dera of Muhammad Bakhsh, when Yaqub and Akram asked for a lift up to "P.I." He gave them lift on his motorcycle up to the bridge and leaving them there, he went to the Dera of Muhammad Bakhsh to ask for his tractor and on his return from there, he learnt that Arshad Ali has been killed. Muhammad Yusaf and Muhammad Aslam appeared before the Investigating Officer on 27.7.1993 and stated that they saw Yaqub and Akram accused riding motorcycle driven by the petitioner. On 29.7.1993, 30 persons appeared on behalf of the complainant and 25 in favour of the petitioner. Sabir Ali and Qasim sons of Nizam Din claiming to be eye-witnesses of the occurrence stated that they were present at Ice Factory situated close to the scene of offence. They saw the petitioner driving the motorcycle with two boys sitting behind him. He dropped both the boys at "P.I-Sem" and went away. An hour later, a person (deceased) came there on a mare who was attacked by aforesaid two boys (Yaqub and Akram accused) by pulling him down from the mare and inflicted him blows with knife and Chhurri. They told about this to the owner of the Ice Factory. On 30.7.1993 Nasim Shah and Allah Ditta son of Muhammad Bakhsh supported the said version before the I.O. One Abdul Hameed s/o Muhammad Din also gave the similar version. Muhammad Yaqub was arrested on 31.7.1993. Thereafter the matter was reinvestigated by Toqeer Hayat, DSP City Circle. On 6.8.1993, about 29 persons appeared before him on behalf of the complainant and 31 on behalf of the accused. Nasim Shah and Allah Ditta s/o Muhammad Bakhsh also appeared before him. He concluded that defence plea was weaker than complainant's case and consequently finding the petitioner guilty directed him to be challaned.
7. From the facts mentioned above, it cannot be said that finding of Muhammad Shoib, Inspector declaring the petitioner as innocent was without any basis/material. Lt is true that in second investigation DSP Toqeer Hayat found the petitioner guilty but he had neither interrogated/examined Sabir Ali and Qasim (who claimed to be eye-witnesses) nor had he commented adversely on their statements recorded by Inspector Shoib. Needless to say that their evidence absolving the petitioner, if properly produced at the trial would be admissible in evidence.
The petitioner has been challaned and his name is placed in Col.3. However, it is recorded in the final report that Muhammad Shoib, Inspector had declared the petitioner as innocent. I would say that finding of Inspector Shoib is not tainted with dishonesty or mala i.e. So the conflicting findings by two police InvestigatingOfficers of which one is in favour of the accused/petitioner puts one on guard against accepting the finding of guilt given, by DSP of the Police officer. Question as to the guilt or innocence of the petitioner would certainly therefore requires further inquiry.
8. For what has been stated above, I am of the view that the case of the petitioner is covered by sub-section (2) of section 497 Cr.P.C. Hence this petition is allowed and it is directed that the petitioner be released subject to his furnishing bail bond in the sum of Rs. 20,000/- with two sureties each in the like amount to the satisfaction of the A.C/ Duty Magistrate, Sheikhupura.