' The petitioner Muhammad Boota, complainant in case F.I.R. No,164, dated 23-5-1994 under section 302/324/148/149, P.P.C. Registered with Police Station Gojra, through this petition under section 49, (5), Cr.P.C. Seeks cancellation of bail after arrest granted to the respondents Nos. 2 to 5 by the learned Additional Sessions Judge, Toba Tek Singh vide his order, dated 11-1-1995 on the ground of conflicting findings by the Investigating Officers.
2. Briefly, the facts of the case are that the occurrence took place at 5-30 p.m. On 23-5-1994 and was reported to the police station on the same day within three hours whereas the distance of police station from the place of occurrence is about 18 miles. The allegations against the respondents are that Muhammad Hanif respondent being armed with .222 bore rifle pointedly fired it at Pervaiz Akhtar who died at the spot; while Ghulam Dastgir, Muhammad Shafi and Waris respondents, each possessed a shotgun of .12 bore. Muhammad Shafi fired its gun at Muhammad Riaz injured P.W. Which hit him on his right shoulder; Ghulam Dastgir fired its gun striking at the right shoulder of the aforesaid Riaz; Waris fired the gun striking the left thigh of the aforecited Riaz. The victim, namely, Riaz remained under treatment at the Combined Military Hospital, Rawalpindi till 18- 8-1994. Initially he was admitted into the General Hospital, Gojra where it was opined by the Medical Officer (Dr. Aftab Ahmed) on 26-5-1994 that the foregoing Riaz was unable to make a valid statement. Thus, the aforesaid Riaz remained hospitalised for a period of far more than 20 days.
3. The learned counsel for the petitioner contended that the respondents are involved in a case which falls within the prohibitory clause and they are responsible for the act being the members of unlawful Assembly and the learned trial Judge while granting bail to the respondents violated all the law and principles laid down by the superior Courts.
4. The learned counsel for the respondents opposed the petition while learned counsel for the State adopted the reasons given by the trial Judge.
5. I have heard the arguments of learned counsel for both the sides and have gone through the record with their able assistance.
6. It would be appropriate to reproduce para. 3 of the order of the learned trial Judge who granted bail:--
(3) The S.S.P., Toba Tek Singh, who conducted the last round of investigation, wrote that the two preceding Investigating Officers namely Shaukat All Inspector Police and Rana Maqbool Ahmad Inspector Police had dishonestly found an aggression to have been launched by the complainant party who had lodged the original F.I.R. That Pervaiz Akhtar was murdered whereas Riaz was grievously injured in result of an aggression instituted by the accused cited in the original F.I.R."
7. The S.S.P., Toba Tek Singh initiated proceedings against the aforementioned Investigating Officers/Inspectors under Rule 6(3)(1) on the charges that both of them sided with the respondents party deliberately and with mala fide intentions for the reasons that they--
(1) did not record the statement of injured Muhammad Riaz P.W. Intentionally;
(2) changed the place of occurrence of murder just to favour the respondents party.
( ) they held the complainant (petitioner) as an aggressor instead of the respondents party; and
(4) did not arrest the respondents party just to facilitate them to arrange counter-version.
8. The learned Additional Sessions Judge has given much weight to the opinion of the two Investigating Officers against whom proceedings have been initiated; based on unsound reasons and against the facts of evidence on record and ignored the version of S.S.P. Who conducted the last round of investigation merely by observing that "conflicting findings by the Investigating Officers were entered in the case"; hence renders the case open to further inquiry.
9. It is now well-settled principle of law that mere opinion of the Investigating Officer as a rule cannot be made basis for grant of bail. It is the duty of the Court to examine the material available on record to find out whether reasonable grounds exist to connect the accused with the offence and relevant material be assessed tentatively for the grant of bail. It was held in case Abdul Ghafoor v. Muhammad Ashraf and another 1994 PCr.LJ 804 that the Court has to examine the available data to find out whether reasonable grounds exist to connect the accused with the crime and the relevant material to be assessed tentatively for the grant of bail is the police report, nature and credentials of evidence proposed to be led coupled with the surrounding circumstances relevant to the case. It was observed that unless there are no reasonable grounds to believe that the accused has committed a non-bailable offence, mere need for further inquiry is no ground to grant of bail. It was observed 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 releasing on bail the accused; the same ' view was held by their Lordships in case Hakim Ali and 3 others v. The State 1979 SCM R 144. Similarly in case reported as Saeed Ahmad v.
The State 1981 SCM R 565 it was held that the opinion of the Investigating Officer cannot be treated as legal evidence. Whereas in case Liaqat Ali v. The State PLD 1994 SC 172 their Lordships held that the opinion of the Investigating Officer is not 1 binding upon the Court which can have its own opinion after examining the same and come to a different conclusion and that opinion of the Investigating Officer holding an accused innocent cannot be made the only basis for granting bail; though due weight is given to such opinion, but the Court is bound to 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.
10. True, as laid down in case Tariq Bashir and 5 others v. The State PLD 1995 SC 34; once bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation of bail as to deprive a person on post-arrest bail of the liberty is a most serious step to be taken.
11. The plea of learned counsel for the respondents that in the first two consecutive investigations, in the first round Investigating Officer found that the petitioner and his companion were the aggressor while during in reinvestigation, the Investigating Officer in the second round held that not only the complainant and his companion were the aggressors but they also murdered their own companion the deceased and injured P.W. Riaz and it is only subsequently that the S.S.P.
Observed them to be treated as aggressors; there are accordingly two versions and the respondents' case is, therefore, one of "further inquiry" and is covered under section 497(2), Cr.P.C.
And the learned Judge rightly granted bail is misconceived; merely because the S.S.P. Took a different view in the investigation and decided to challan the respondents and initiated proceedings against the Investigating Officers, in view of the dictum laid down by their Lordships of Supreme Court in case Hakim Ali and 3 others v. The State 1979 SCM R 144 it cannot be said that this is case of in which there are two versions by the prosecution.
12. It may be mentioned here that as per the final investigation conducted by the S.S.P. All the four respondents have been found guilty and show-cause notices have already been issued to the previdus Investigating Officers as aforementioned for siding with the respondents party deliberately and with mala fide intentions. Nothing exists on record or has been pointed out by the respondent's counsel which could, at least, for the present, demonstrate any motive or malice on the part of S.S.P. To falsely or maliciously implicate the respondents or to initiate proceedings against the Investigating Officers.
13. The plea of learned counsel for the respondents that already petition for cancellation of bail of the co-accused was disposed of as dismissed by this Court in Criminal Miscellaneous No,4718/B of 1994; hence propriety demands that this petition be also dismissed is devoid of merits; firstly the case of respondents is distinguishable from the aforementioned co-accused as ineffective firing was attributed to them and secondly the findings of S.S.P. In final round of investigation was not brought in the notice of Court at that time and proceedings under Rule 6(3)(1) against the aforementioned two Investigating Officers were not initiated at that time. Even otherwise, it is clear that the fire-arm injuries had been caused by the respondents and not by the co-accused already bailed out and the fact remains that the respondents have been accused of causing death of the deceased and injuries to the injured P.W. The co-accused may have been erroneously allowed bail by this Court; but keeping in view the dictum laid down in case All Gohar v. The State 1979 SCM R 116; that would not ipso facto entitle the respondents to the same concession; as already observed the case of other co-accused appears to be distinguishable from that of the respondents.
14. The learned trial Judge allowed the bail to the respondents being a case of further inquiry. The provisions of section 497(2), Cr.P.C. Which have received careful consideration by superior Courts in a number of cases and has been interpreted time and again. In case of Ibrahim v. Hayat Gul and others 1985 SCM R 382 while interpreting the phrase "further inquiry" their Lordships observed:-- "This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of police station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that 'there are no reasonable grounds for believing that the accused has committed a non- bailable offence'. Without such finding by such officer or the Court the accused would not be released on ground of further inquiry under subsection (2)."
15. The learned trial Judge while passing the order as laid down in section 497(2), Cr.P.C. Has not written any reasons for further inquiry. The discretion, in the circumstances, exercised by the learned Additional Sessions Judge allowing bail to the respondents was thus an arbitrary and violative exercise of powers not justified in the facts of the case. Therefore, the to the respondents by the learned Additional Sessions Judge, Toba Tek Singh is recalled. However, I may add that nothing in this order shall influence the trial Court in the course of the trial and that in recording its judgment on the question of guilt or innocent of the respondents, it shall proceed entirely on its own appreciation of the evidence produced before it.