' The petitioners and four others were proceeded against vide FIR.' No,160/94, dated 7-8-1994 under section 302/324/148/149, P.P.C. Police Station Qaimpur, District Bahawalpur, registered for double murder and injuries to five P.Ws.
2. The prosecution story briefly stated in the F.I.R. Is that on 7-8-1994 at about 1-00 p.n., the complainant was working in his fields alongwith his sons Ghazanfar Ali and Hassan Ali. Some other persons named in the F.I.R. Were also present. At that very time, accused Zahoor Hussain armed with .12 bore gun, Majid Hussain armed with rifle, Maqbool Hussain Shah armed with rifle, Mehmood Hussain Shah armed with carbine, Khairat Hussain Shah armed with rifle and Ikhlaq Hussain Shah armed with carbine, reached the spot and raised a Lalkara that they would teach them a lesson for purchasing the land.
' This Lalkara was followed by a fire from Zahoor Hussain which hit Ghazanfar Ali on his chest. Majid Hussain accused fired which hit Muhammad All on his chest and both of them fell down and the remaining accused fired at the complainant party in consequence of which Hassan Ali, Ali Ahmad, Noor Muhammad, Ghulam Hussain and Ghulam Rasool were injured.
3. The motive alleged in the F.I.R. Is that the complainant had purchased agricultural land from Zahoor Hussain Shah etc. Qua which pre-emption suit was filed by Karam Hussain Shah which he lost. Two years prior to the occurrence, the land in question fell to the share of the complainant in consolidation proceedings and this order was challenged before the Additional Deputy Commissioner, Bahawalpur which was decided against Zahoor Hussain Shah. Revision against the said order was also dismissed on 17-7-1994 by the learned Additional Commissioner, Bahawalpur.
He bore a grudge against the complainant on that account.
4. The learned counsel for the petitioners has prayed for bail on the following grounds:--
(i) That the petitioners did not cause any injury to the deceased person;
(ii) That there is a general allegation of firing and no specific injury is attributed to the petitioners;
(iii) That the investigation was conducted initially by the S.H.O. Of the concerned police station who, after thorough investigation, found the petitioners to be innocent. This finding was affirmed by the D.S.P./S.D.P.O. Then the investigation was transferred at the instance of the complainant and the matter was investigated by D.S.P. Zia Feroze who too found the petitioners to be innocent; and
(iv) That no recovery has been affected from the petitioners.
5. The learned counsel for the petitioners has relied on the following judgments of the Honourable Supreme Court:--
(i) Dr. Muhammad Aslam v. The State 1993 SCM R 2288,
(ii) Naqi Hussain Shah v. The State 1992 SCM R 600,
(iii) Gulzar Ahmad v. The State 1994 SCM R 1728,
(iv) Manzoor and 4 others v. The State PLD 1972 SC 81,
(v) Tariq Bashir v. The State PLD 1995 SC 34.
6. The learned State counsel assisted by the learned counsel for the complainant has opposed the prayer for bail. The learned counsel for the complainant has urged the following pleas:--
(i) That it was a day time occurrence in which F.I.R. Was lodged promptly and all the accused including the petitioners have been specifically named. The fact that all of them came armed proves the element of pre-concert; ' That the petitioners came armed alongwith others which prima facie connects them vicariously for the murder of Ghazanfar Ali and Muhammad Ali deceased.
7. The complainant and father of Ghazanfar deceased appearing in Court had lamented that the accused party is influential. He reiterated the F.I.R. Story and submitted that he is seeking re- investigation.
8. I have heard the learned counsel for the parties and have also perused the record.
9. On Court query about the material on the basis of which the S.H.O. Declared petitioners -to be innocent, the Police Officer present in Court, after consulting the record, submitted that six persons had sworn affidavits qua the alibi of Maqbool Hussain Shah petitioner which is to the effect that at the relevant time he was at a bus stand. Similarly, two persons had sworn affidavit that Ikhlaq Hussain petitioner was at Hasilpur with one Pervaiz Iqbal, A.S.I. Who was being administered a glucose drip in a room of a wagon stand. The finding of the D.S.P./S.D.P.O. Who verified the investigation of the S.H.O. Has also been read out before me. He has simply agreed with the opinion of the S.H.O. Similarly, the opinion of the D.S.P., Ahmadpur East who investigated the case for the second time, is not based on any evidence from the locality nor there is independent reasoning. He has merely endorsed the finding of the earlier investigation.
10. The opinion of the Investigating Officer qua the innocence of the accused, in bail matters has engaged the attention of this Court as also the Honourable Supreme Court in several cases.
' In Rehmatullah alias Rehman v. The State 1970 SCM R 299, the Honourable Supreme Court granted bail to the accused wherein he had been declared innocent by three Investigating Officers. It was held to be a case of further inquiry as the prosecution case was that Rehmatullah petitioner alongwith Karam Ilahi ascended the roof-top of their house and Karam Ilahi co-accused fired a shot at Bakhsha which hit Mst. Fatima deceased. The question of Rehmatullah's sharing common intention with that of Karam Ilahi was considered to be a matter of further inquiry.
' In Ch. Muhammad Khan v. Sanaullah PLD 1971 SC 324 the plea of alibi and the opinion of the Investigating Officer were not found sufficient to render direct evidence untrustworthy and bail was refused.
' In Hakim Ali and 3 others v. The State 1979 SCM R 114, bail was sought on the ground that the first Investigating Officer had held petitioners to be innocent and that the opinion of the subsequent Investigating Officer finding them prima fade involved in the offence would make it a case of further inquiry. This contention was repelled and the petition was dismissed. This view was further affirmed in Manzoor alias Bhola and another v. The State and another 1981 SCM R 530.
' In Amir All and others v. The State 1984 SCM R 521, the accused was granted bail as the A.S.P., after recording the statement of the witnesses of the same village, had opined that the petitioners were not present at the spot. This view was further affirmed in yet another judgment of the Honourable Supreme Court reported in Muhammad Afzal v. Nazir Ahmad and others 1984 SCM R 429.
' In Ghulam Abbas v. The State 1984 SCMR 659, bail was not granted as the opinion of the Investigating Officer was not based on tenable material on record.
' In Muhammad Rafiq v. Abdur Rehman and 5 others 1986 SCM R 1978, it was held that the reports of the Investigating Officers though not binding on Courts, can be taken into consideration to consider as to whether the accused is entitled to bail or not. The bail granted by the High Court to those accused who were declared innocent by the Investigating Officer and the opinion was supported by material on record was not interfered with. However, the bail granted to Abdul Qayyum accused was cancelled as there was additional evidence qua his identity connecting him with the commission of the offence.
' In Muhammad Abbas and 2 others v. The State 1987 SCM R 483, the accused were granted bail as a D.S.P. Had found them innocent and the Magistrate had discharged them. They were, however, summoned by the Court of Session on a complaint filed by the complainant and the learned trial Court refused to enlarge them on bail. Their petition before the High Court was also dismissed. They were granted bail by the Supreme Court as the opinion of the Investigating Officer was based on discrepancy between the ocular account and the medical evidence, it was on record that the empty shells recovered from the spot had not been found to have been fired from one weapon and as per the report of the Fire-Arm Expert, had been fired from the gun which was recovered from Liaqat Ali, the principal accused (who was not seeking bail).
' In Liaqat Ali v. The State PLD 1994 SC 172 it was observed:-- 'The opinion of the Investigating Officer holding an accused innocent, cannot be made the only basis for granting bail. Although due weight is given to such opinion, but the Court is empowered to examine the material which has been made basis for forming such an opinion by the Investigating Officer. If the opinion is based on inadmissible and irrelevant evidence, it will not carry any weight at all."
11. In the case-law relied upon by the learned counsel for the petitioners, it is manifest that the Honourable Supreme Court has always weighed the opinion of the Investigating Officer with reference to record. For instance:-- ' Dr. Muhammad Aslam v. The State 1993 SCM R 2288 while granting bail to an accused on having been declared innocent by the police it was observed:-- "The police official who brought the record of the case investigated has also confirmed this fact by reference to record."
' Naqi Hussain Shah v. The State 1992 SCM R 600, the police opinion was further affirmed by the fact that the case had been cancelled by the learned Ilaqa Magistrate at one stage.
' In Gulzar Ahmad v. The State 1994 SCM R 1728 the bail was granted as there was a glaring contradiction between the medical evidence and the ocular account and the accused had been placed in Column No,2 of the challan.
' In Manzoor Hussain and 4 others v. The State PLD 1972 SC 81, the petitioners who were granted bail had not been named in the F.I.R. And they were named as an accused by certain witnesses who were brought on the scene at a very belated stage.
' In a case reported in Gul Muhammad v. Masam Khan 1977 SCM R 27 the Honourable Supreme Court cancelled the bail granted by the learned Chief Justice of Peshawar High Court as the sole ground which found favour with the High Court was opinion of the Police Officer. While setting aside the order, the august Supreme Court observed:: ".... The learned Chief Justice had obviously misdirected himself in invoking this Court's dictum in Rehmatullah alias Rehman v. The State 1970 SCM R 299. Admittedly, it was a case of broad daylight occurrence resulting in a double murder, besides fire-arm injuries to as many as four persons who not only implicated the accused including the three respondents in their police statements but also deposed against them before the inquiry Magistrate."
' In yet another judgment of the Honourable Supreme Court reported in Iqbalur Rehman v. The State PLD 1974 SC 151, it was held:- "Criminal Procedure Code, 1898 (V of 1898), S. 498---Bail in murder case---Refusal---Justificatory factors, for---F.I.R. Clearly asserting that petitioner was present as a member of unlawful assembly and that he fired fatal shot at deceased---Petitioner seeking bail in High Court on ground of Investigating Officer's opinion regarding innocence of petitioner of his absence from place of occurrence---High Court refusing bail saying that petitioner's plea of alibi would have to be examined at trial stage and cannot be made a ground for bail---Supreme Court upholding finding of High Court and dismissing petitioner's appeal."
' In Baboo v. The State 1981 SCM R 849, the accused was found innocent by police but he was refused bail as he was prima facie found to be member of the unlawful assembly.
' Similarly in Bashir Ahmad and 2 others v. The State 1994 SCM R 1147, the bail was refused despite the police opinion exonerating the accused as the said opinion was based on evidence which was inadmissible and it was observed:-- "For determining the participation of the accused in the crime or their absence they have relied on the testimony of the respectables irrespective of the fact whether they were eye-witnesses of the occurrence or not. It is not by reference to the evidence collected and to be presented before the Court by reference to which such conclusion has been drawn but it has been drawn by reference to the material which is not presentable before the Court."
12. The foregoing resume of the precedent case-law would show that a Court is not bound by the opinion of the Investigating Officer. The Court has to weigh the opinion in the light of the evidence and material brought on record and has to form its own opinion and can rightly come to a different conclusion qua the prima facie innocence or guilt of the accused. If the opinion is not based on any tenable material, it would not constitute valid ground for bail.
13. Coming to the facts of the present case, I find that the opinion of the Investigating Officer (the SILO.) is primarily based on the affidavits of certain persons qua the alibi of the petitioners. These affidavits were given after three weeks of the alleged occurrence. It is surprising that the A.S.I. Who was being administered glucose on 30-8-1994 and is one of the witnesses of alibi kept quiet for 21 days of the lodging of the F.I.R. Although he had an easier excess to the concerned Investigating Officer being his colleague. The place at which the petitioners were stated to be present is at a distance of hardly few kilometres from the place of occurrence. None from the locality came forward to support the plea being raised by the petitioners that they did not participate in the occurrence although the petitioners and the complainant reside in the same village. The petitioners are specifically named in the F.I.R. Which was lodged promptly. The F.I.R. Story is corroborated by the statements of five injured witnesses. There is no reason why the complainant or the injured witnesses should falsely implicate them. The medical evidence corroborates their testimony as the nature of injuries suggests that more than one type of fire-arms were used. There is a bullet injury on some while pellet injury on the other P.Ws.
14. The evidentiary value of the affidavits tendered in defence would be determined by the learned trial Court and cannot be considered as a material to attract the benefit of the provision relatable to cases which warrant further inquiry.
' In Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83, it was held:-- "Criminal Procedure Code (V of 1898)--- ' S.497(2)---Further inquiry---Mere filing of affidavits by certain Advocates would not attract the expression 'further inquiry' nor would it amount to two versions---Evidentiary value of such evidence should be left to be determined by trial Court."
15. The petitioners were prima facie members of the unlawful assembly. They came armed with their co-accused with deadly weapons and mounted the attack which resulted in the death of Ghazanfar Ali and Muhammad Ali deceased and fire-arm injuries to five P.Ws. ##TE|## ' In Muhammad Rashid v. The State 1979 SCM R 92, the Honourable Supreme Court did not interfere with the bail refusing order of an accused who did not cause any injury to he deceased but was armed with a stick and had caused an injury to a prosecution witness alone. It was observed:-- "He had accompanied his co-accused to the spot while armed with a stick and had made a murderous assault on the complainant while his co-accused committed murder of Manzoor Ahmad in prosecution of the common object of the said assembly."
' The principle that vicarious liability can be considered at bail stage, was further affirmed by yet another judgment of the Honourable Supreme Court reported in Baboo v. The State 1981 SCM R 849.
16. For what has been discussed above, as the opinion of the Investigating Officer with regard to the innocence of the petitioners is not based on any evidence tenable in law for the purposes of bail, and there is overwhelming ocular evidence prima facie connecting the petitioners with the alleged offence (of double murder) consisting of injured witnesses which is corroborated by the medical evidence, I am not persuaded to admit the petitioners to bail at this stage. The petition has no merit which is hereby dismissed.