The petitioner has applied for bail in case F.I.R. No.102/95 registered at Police Station Garden Town, Lahore on 13-6-1995 under section 302/148/ 149, P.P.C. On the basis of statement made by Mashkoor-ul-Haq son of Muhammad Tufail made to Muhammad Ashraf, S.H.O. Of police station.
2. It was alleged by the first informant in his statement that on 13-6-1995 at about 7-00 p.m. He was present in the Shopping Centre of hostel of Campus Allama Iqbal Medical College, Lahore along with Major Muhammad Tariq, Dr. Azam and Dr. Manshoor Ali deceased when at about 8-00 p.m.
Qayyum Sarwar, Asim Niazi, Malik Javid petitioner, Hamad Hafeez and Qayyum Ali came there armed with fire-arms. Hamad Hafeez was armed with stengun. Qayyum Sarwar fired at Dr. Manshoor Ali hitting on his chest and Javid fired his pistol hitting left leg of Manshoor Ali. Asim Niazi, Hamad Hafeez and Qayyum Ali also fired with their respective guns and after causing injuries to Dr. Manshoor Ali fled away from the spot. Dr. Manshoor Ali died due to the injuries while on the way to the hospital.
3. It has been contended by the learned counsel for the petitioner that the petitioner was attributed injury which was described as injury No.4 in the post-mortem report which ex facie would not be caused with 30 bore pistol; the petitioner had joined the investigation and D.S.P., C.I.A. Had also investigated the case and according to his information the petitioner was not armed with pistol at the time of occurrence and that though he was present in the Shopping Centre he had not participated in the commission of the crime; nothing was recovered from the petitioner and that the petitioner was a student and he was nominated in the F.I.R. Due to student politics and that Dr. Manshoor Ali deceased had lot of enemies and that it was a night time occurrence and that the petitioner was not known to the first informant earlier to the alleged occurrence. He has placed reliance on Rehmat Ullah v. State 1970 SCM R 299, Muhammad Fazal v. Nazir Ahmad 1984 SCM R 429 and Amir Ali and others v. State 1987 SCMR 521. On the point of medical discrepancy between the alleged weapon of offence and the nature of injury No.4 found at the dead body of the deceased reliance was placed by the learned counsel on Muhammad Ayyub v. State 1987 SCM R 106, Muhammad Ismail and 2 others v. State 1970 PCr.LJ 180.
4. Learned counsel appearing on behalf of the complainant opposed the application. It was contended that at the bail stage only a tentative assessment of the material available would be made and that the alleged contradiction of injury No.4 with the weapon of offence allegedly used could not be appreciated at this stage; the petitioner was attributed a specific role and if there be any benefit arisen out of the nature of fire-arm injury and the alleged weapon of offence, the benefit thereof could only be given at the trial stage; the non-recovery of weapon of offence would not effect the merits of the case of the prosecution and that the Court was not bound by ipsi dexit of the Investigating officer. He placed reliance on Ghulam Muhammad v. State 1994 PCr.LJ 988, Ghulam Abbas v. State 1994 SCM R 659 and Chaudhary Shujat Hussain v. State 1995 SCM R 1249.
5. We have heard the learned counsel for the parties and have also gone through the record produced before us. The case was investigated by D.S.P., C.I.A. Amongst others who came to the conclusion that the petitioner was neither armed nor participated in the commission of crime although he was present in the shopping Centre and that the opinion having been expressed by a Gazetted Officer could not be summarily discarded. Muhammad Fazil's case 1984 SCM R 429 referred to above the High Court granted bail to Nazir Ahmad etc. By taking into consideration the opinion of the Investigating Officer expressed after investigation. In appeal by the complainant their Lordships in the Supreme Court refused to interfere in the order of the High Court granting bail on the premises that the High Court could take into consideration the opinion of the Investigating Officer while considering the bail plea of an accused person. In Amir Ali's case 1984 SCM R 521 the Supreme Court granted the benefit of the opinion of the Investigating Officer and had allowed bail to the petitioner. In Muhammad Ayyub's case 1987 SCM R 106 the Honourable Supreme Court appreciated that the nature of injuries had not supported the alleged role attributed to the petitioner as in the present case and bail was granted.
6. Injury No.4 on the person of dead body could not be the result of .30 bore bullet and as such we are of the tentative opinion that unless otherwise opined by the medical/forensic expert the benefit must go to the petitioner as the injury No.4 was obviously the result of pellets. The petitioner was not known to the complainant earlier to the registration of the case. The petitioner belonged to Faisalabad whereas the complainant belonged to a village in Tehsil Mianchanu, District Khanewal and no privity or previous acquaintance had been alleged in the F.I.R. And in such circumstances the false implication of the petitioner in the case cannot be ruled out till the same be established during the trial.
7. Provisions of section 497, Cr.P.C. Are not to be excluded from consideration as held by their Lordships in Qaim Ali Shah's case 1992 SCM R 2192 and as such the provisions of subsection (2) of section 497, Cr.P.C. Can also be taken into consideration while deciding the present petition.
8. In the above circumstances, we are of the opinion that there are reasonable grounds to believe that the petitioner had not committed the offence alleged against him but that there are sufficient grounds for further inquiry into his guilt.
9. In view of the above discussion the petition is allowed. The petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs.100,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Lahore.
10. It is made clear that the above is the discussion based on tentative appraisal of the material placed before us and shall not be taken into consideration by the Court at the trial stage.
N.H.Q./J-2/LBall allowed.