' Haji Muhammad Asghar Javed petitioner and complainant of F.I.R. No,189, dated 5-11-1994 under section 302/34, P.P.C. Registered with Police Station Samanabad, Lahore against the respondent No,1 and others has moved this petition under section 497(5), Cr.P.C. For the cancellation of bail of respondent No,1 granted to him by the learned Additional Sessions Judge, Lahore vide his order, dated 27-2-1995; on the ground that respondent No,1 has been declared innocent by the police in the case in its final report under section 173, Cr.P.C. And has been' placed in Column No,2 of the challan.
2. The learned counsel for the petitioner contended that respondent No,1 did not come with clean hands before the learned trial Court as the final report has not been submitted so far and the investigation of the case is being conducted by the D.S.P. Concerned; further the order of the learned Additional Sessions Judge is erroneous as the learned Judge previously rejected the bail application on 23-1-1995 while on the same ground granted bail to the respondent on 27-2-1995.
3. The learned counsel for the respondent opposed-the petition.
4. I have heard the arguments of the learned counsel for the parties and have perused the record with their able assistance. The deceased was murdered in daylight; there is no delay in lodging the F.I.R.; the motor-cycle used in the occurrence by the respondent has been recovered and the case is still under investigation.
5. The learned Additional Sessions Judge while dismissing the bail application on 23-1-1995 observed that the verdict of the police holding the petitioner innocent is not the conclusive proof while accepting the bail application of respondent on 27-2-1995 the learned Additional Sessions Judge observed "I find that the application previously filed by the petitioner was dismissed by this Court on my findings that prima facie petitioner's role was contributory to the commission of offence but in view of the above report prima fade this is a case of further inquiry".
6. Though at that time the D.DA. Vehemently contended that the respondent's previous application on the same ground has been rejected by the Court and there is no fresh ground to allow the bail; the learned Additional Sessions Judge brushed aside his previous observation made a month before.
7. The learned Additional Sessions Judge has given much weight to the opinion of the Investigating Officer; as now, it is well-settled principle of law that mere opinion of Investigating Officer as a rule cannot be made basis for grant of bail in the absence of opinion forming material. It is the duty of Court to examine the material on record to find out whether reasonable grounds exist to connect the accused with the offence and the relevant material be assessed tentatively for the grant of bail. It has been held in case Muhammad Ashraf v. The State 1971 SCM R 183 that the police challan is nothing but the opinion of the Investigating Agency and is entirely an irrelevant consideration for C releasing on bail the accused. The same view has been held by their Lordships in case Hakim All and 3 others v. The State 1979 SCM R 114. In case reported as Saeed Ahmad v. The State 1981 SCM R 565 it was observed that the opinion of Investigating Officer cannot be treated as legal evidence.
Their Lordships of Supreme Court in case Liaqat Ali v. The State PLD 1994 SC 172 had held that opinion of the Investigating Officer is not binding upon the Courts which can have its own opinion after examining the same and come to the different conclusion and that opinion of the Investigating Officer holding an accused innocent cannot be made the only basis for grant of bail; due weight though is to be given to such opinion of the Investigating Officer but the Court can examine the material forming basis of the same and if it is based on inadmissible and irrelevant evidence it will not carry any weight at all.
8. Admittedly, the respondent has been found guilty during three investigations conducted one after the other prior to the investigation by one Rana Akhtar Ali; relied upon the learned Additional Sessions Judge; which is not final report as observed by the learned Additional Sessions Judge as the investigation is still being conducted by D.S.P. Which has been taken over from the Rana Akhtar Ali; the motor-cycle used in the commission of said offence has been recovered from the petitioner.
9. Without going into the merits of the case, keeping in view the special features of the case discussed above, the to the respondents by the learned Additional Sessions Judge vide his order, dated 27-2-1995 is hereby recalled.