' Through this application the petitioner Muhammad Yaqub son of Sultan Ahmed seeks pre-arrest bail under section 498, Cr.P.C. In case F.I.R, No398, dated 8-11-1993 under section 302/34, P.P.C.
Registered with Police Station Baghbanpura District Lahore on the ground that the petitioner was fictitiously shown as fugitive of law by the police and now has been found innocent by the police; hence as a matter of right is entitled to the concession of bail before arrest.
2. I have heard learned counsel for the petitioner at length and have gone through the record.
3. The main contention of the learned counsel is that the petitioner did not abscond but remained at his house, joined investigation of the case and has been found innocent.
4. The learned Additional Sessions Judge, Lahore has refused bail to the petitioner on the ground that the petitioner remained absconder since 8-11-1993 and finding of the police is not binding upon the Court. As 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 is entirely an irrelevant consideration for releasing on bail the accused. The same view has been held by their Lordships in case Hakim Ali and 3 others v. The State 1979 SCM R 114. Their Lordships in another case reported as Saeed Ahmad v. The State 1981 SCM R 565 observed that the opinion of the Investigating Officer cannot be treated as legal evidence at the stage of bail application.
Similarly their Lordships of Supreme Court in case Liaqat All 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 a different conclusion and that opinion of the Investigating Officer holding an account 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.
5. Admittedly the petitioner remained fugitive since 8-11-1993 and has previous record also. As the offence falls within the prohibitory clause of section 497(1), Cr.P.C. Grant of bail before arrest under section 498 means that the petitioner is exempted from joining investigation and by not joining investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may necessary to connect the accused with commission of alleged crime.
Recently their Lordships of Supreme Court have differentiated between bail after arrest as contemplated under section 497, Cr.P.C. And bail before arrest under section 498, Cr.P.C. In case Sarwar Sultan v. The State PLD 1994 SC 133 it has been observed that in non-bailable offence, an accused is not to be released on bail by the Court, there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years.
6. Keeping in view the above discussion, I am not inclined to interfere with the order passed by the learned Additional Sessions Judge, Lahore. The bail application is rejected in limine.