Muhammad ASIF JAN, J. - Muhammad Arshad aged about 32 years petitioner alongwith his brother Muhammad Ashraf aged about 30 years petitioner were arrested on the 5th of April, 1995, and the 23rd of April, 1995, in pursuance of a case registered against them vide first information report No. 122/95 dated the 23rd of March, 1995, recorded under sections 148/149/302/324/337-F (ii) and (vi)
P.P.C, registered at Police Station Noor Shah of Sahiwal District, regarding an occurrence which took place on the 23rd of March, 1995, at about 6-00 p.m. (Maghrab Waila) in the area of chak No. 61/4- R which is about 13 miles from Police Station Noor Shah of Sahiwal District
2. The first information report was lodged on the 23rd of March, 1995, at about 9-15 p.m. By Ikhtiar Ahmad brother of Muhammad Wakeel deceased.
According to the case of the prosecution Muhammad Arshad and Muhammad Ashraf petitioners alongwith 3 others launched a murderous assault upon the complainant parly as a result of which Muhammad Wakeel deceased" died at the spot The specific allegation against Muhammad Arshad and Muhammad Ashraf petitioners is that they were armed with l2 bore guns fired at Muhammad Wakeel deceased as a result of which he died at the spot.
3. Muhammad Arshad petitioner was also injured during the same occurrence and suffered a gun shot injury on his head. Abdul Haq (not a petitioner) the father of the present petitioners was also injured during the same occurrence and suffered a gun shot injury oh bis face resulting in a fracture of the jaw. These injuries are not concealed by the prosecution but are actually mentioned in th$ first-information report, itself. Thus, from a bare reading of-the firs information report, the admitted position which emerges is that there was cross firing as a result of which injuries were suffered by both sides.
4. The counter version of the petitioners was investigated by the Senior Superintendent of Police of Sahiwal District who conducted the investigation of this case himself. The Senior Superintendent of Police of Sahiwal District was of the, opinion that the counter version of the Accused party seemed to be nearer the truth, that it was the complainant party which opened the attack with fire arms which resulted in cross firing. As a matter of fact the Senior Superintendent of Police directed that a counter challan be submitted. Learned counsel appearing on behalf of the State informs me that the challan was submitted on the 23rd of August, 1995.
5. Learned counsel for the complainant informs me that the matter was reinvestigated on the complainant's motion by the Crimes Branch at Lahore. Learned counsel for the State has stated at the bar that the supplementary challan has also been submitted on the 3rd of January, 1996.
Learned counsel for the State further informs me that while according to the investigation conducted by the Senior Superintendent of "Police of Sahiwal apart from the petitioners two co- accused were discharged including the 3rd co-accused Abdul Qaddus who alongwith the petitioners had fired at Muhammad Wakeel deceased while according to the supplementary challan the said co-accused Abdul Qaddus has also been found to be innocent but one more person, namely, Muhammad Sarwar has been challaned.
6. The nature of injuries suffered by Muhammad Arshad petitioner and his father Abdul Haq co- accused clearly indicate that they are not self suffered. At any rate they have been mentioned by the complainant in the first information report itself.
7. Thus, the opinion of the Senior Superintendent of Police is not fanciful but seems to be based upon valid and cogent reasons, while it is true that the opinion of a Police Officer no matter how senior he may be is not binding upon the Courts yet it is equally true that for the purposes of determining whether reasonable grounds to believe that a person is guilty of an offence punishable with death or imprisonment for life seem to exist or not and for further determining that if such grounds do not exist then there is sufficient material available on the record for holding a further enquiry within the meaning of sub-section (2) of section 497 Cr.P.C, exist or not, an opinion given by Police Officer has to be kept in mind while exercising discretion judiciously and not arbitrarily. In the instant case, where according to the investigation agencies themselves, there is a probability that the attack was actually opened by the complainant party, would have its own ramification on the merits of the entire case and therefore, I am refraining from making any comment lest it should prejudice the case of either parly. However, the conclusion is inescapable that if indeed it was a case where the attack was launched by the complainant party rather than the accused then reasonable grounds to believe that the accused are guilty of an offence punishable with death or imprisonment for life do not exist and the case against the accused in that scenario Would at best be a case of further enquiry within the meaning of sub-section (2) of section 497 Cr.P.C, which would entitle the petitioners to the grant of bail.
8. Resultantly, the petitioners are granted bail provided they furnish, bail bonds in the sum of Rs.
50,000/- each with one surety each in the like amount to the satisfaction of the trial Court.