' Muhammad Alam petitioner/complainant, brother of Muhammad Rashid deceased, has filed the present petition for cancellation of ed to the accused/respondent No,1 Zaheer-ud-Din Baber, by the learned Sessions Judge, Sialkot in case F.I.R. No,623, dated 24-11-1994 under section 302/452/ 34, P.P.C. Registered with Police Station Gorki, District Sialkot vide order, dated 9-2-1995.
2. Briefly stated facts of the prosecution case are that complainant Muhammad Alam alleged that on 24-11-1994, he along with his brother Muhammad Rashid, nephew Shahid Mahmood and Nazeer Ahmad were present in Rashid's house, discussing civil suit pending against Zaheer-ud-Din Baber.
At about 12 night, Muhammad Islam co-accused asked them to open the door. Muhammad Rashid opened the door. Electricity bulb was on. They found co-accused Javaid and Ashraf armed with rifles and respondent Zaheer-ud-Din Baber armed with a revolver, present near the wall.
Respondent raised Lalkara, on which co-accused Javaid fired with his rifle causing injury on the head of Muhammad Rashid. Muhammad Rashid fell down, when co-accused Muhammad Ashraf fired with his rifle. Thereafter, the respondent fired with his revolver. However, the shots fired by the respondent and co-accused Muhammad Ashraf remained ineffective. Muhammad Rashid died on the spot. Two motives of offence are attributed in the report. First motive was pendency of civil litigation with Zahir-ud-Din Baber. The second motive was that Mst. Rehana, daughter of the deceased, was forcibly got married by co-accused-Javaid with him.
3. The learned counsel for the petitioner/complainant vehemently contended that the learned Sessions Judge while granting bail failed to notice all the relevant circumstances in the case, misread the record and fell into error by relying on the opinion of two Investigating Officers out of three investigations and did not consider the last opinion of the Investigating Officer, D.S.P. C.I.A.
Who directed that the respondent be challenged being guilty; further contended that ingredients of section 460, Cr.P.C. Are attracted and not of section 452, Cr.P.C. And co-accused Muhammad Ashraf is still at large; while the learned counsel for the respondent controverted the arguments of learned counsel contending that the respondent had no motive to kill the deceased; was found innocent by the two Investigating Officers and in spite of remand by the police, nothing was recovered from him; no injury is attributed to him and the allegation against the respondent is of an ineffective firing and lastly argued that once bail is granted by a competent Court of jurisdiction, then strong and exceptional grounds are required for cancellation of the bail which do not exist.
4. I have heard the arguments of the learned counsel for both the sides at length and have gone through the record with their able assistance.
5. The learned counselor the respondent at the very outset urged that as the respondent has been granted bail by a competent Court of jurisdiction, therefore, strong and exceptional grounds are required for cancellation of bail and relied upon case Tariq Bashir and 5 others v. The State PLD 1995 SC 34; true, to deprive a person on post-arrest bail of the liberty is a most serious step to be taken.
6. The learned trial Judge granted bail to the respondent being a case of "further inquiry". It is by now well-settled law that the expression "further inquiry" is not to be taken lightly nor is to be extended unnecessarily. In case Arbab Ali v. Khamiso and others 1985 SCM R 195 their Lordships observed that:-- "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case of 'further inquiry'. It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497) under subsection (2) of section 497, Cr.P.C. When there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-boilable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court."
It is, therefore, obvious that expression "further inquiry" is not to be taken IA lightly nor is to be extended unnecessarily.
7. The learned counsel relied upon cases Abdul Khaliq and others v. The State 1994 PCr.LJ 2338 and Nek Muhammad v. The State 1991 SCM R 1630 wherein the accused was found innocent and was not alleged to have caused injury to the deceased; it was held that the liability of the accused was a matter of further inquiry and bail was granted in the circumstances on the opinion of Investigating Officers. Similarly in case Zaheer Din and 2 others v. The State PLD 1990 SC 959 their Lordships declined to cancel bail as the accused person had only been attributed ineffective firing while their Lordships in case Liaqat Ali v. The State PLD 1994 SC 172 observed that:-- "It is now well-settled that the opinion of the Investigating Officer is not binding upon the Court.
Every Court can have its own opinion and may after examining the opinion of the Investigating Officer, come to a different conclusion. 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 wIlkh 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. However, all the attending facts and circumstances of the case are to be taken into consideration while assessing whether the opinion of the Investigating Officer should be accepted or not."
' In view of the above observations learned Judges refused to grant leave though two Investigating Officers had found the accused innocent. The facts of the case in hand are similar to the supra case; as both the Investigating Officers had found the respondent innocent on oral testimony of certain defense witnesses while on the other hand in the F.I.R. Specific role has been assigned to the respondent and it is supported by the testimony of eye-witnesses. In case Muhammad Azam and others v. The State 1990 SCM R 1319 while rejecting bail application of 6 accused out of other assailants mentioned in the F.I.R. Who were found innocent and were not arrested by the police; their Lordships observed that:-- "It is difficult to accept the contention of the learned counsel. The names of the petitioners find mention in the F.I.R. And there are a number of en-witnesses who are prepared to support the version given therein. The fact that six persons mentioned in the F.I.R. Have been found innocent by the police is by itself not a sufficient ground at this stage to cast doubt upon the participation of the petitioners in the occurrence. In the circumstances no case for bail has been made out."
8. As far as interpretation of subsection (2) of section 497, Cr.P.C. Is concerned, it may straightway be observed keeping in view the bail order that the learned Sessions Judge has not correctly understood nor has it been properly applied in this case. The main consideration on which the accused becomes entitled to bail under the said subsection is a finding, though prima facie by the police or by the Court in respect of the merits of the case. The learned Sessions Judge in this *se avoided rendering such prima facie opinion on merits as is mentioned in subsection (2) of section 497, Cr.P.C. And relied only on the finding of two out of three investigations that even without any justification. This approach is not warranted by law.
9. The contention of the learned counsel for the petitioner/complainant that the first two Investigating Officers with mala fide intention did not add I section 460, P.P.C. Is well-founded.
10. I have looked into the case diaries. Strange to note that the police from the beginning started recording the plea of innocence and evidence in support thereof. The partisan attitude is more than clear. Not only this but the very fact that the case diary numbers and its dates declaring the respondent innocent is known to them shows the mala fides of the police and their complicity with the respondent party. It [`nay be observed that case diary is a document which should only be known either to the police or the Court when produced and to none other. This practice which has crept into the system must be curbed with strong hand not only by the higher Police Officers but by the Courts as well, as it undermines the very foundation of the system of administration of criminal justice as observed in case Rehm Din and another v. The State 1991 PCr.LJ 1677.
11. On consideration of the entire material on the file and ing order to the respondent, I have formed the opinion that there are reasonable grounds for believing that the respondent has committed the offence with which he has been charged. The order of the learned Sessions Judge granting the concession of bail to the respondent is fanciful and arbitrary which could not justify the grant of bail to the respondent. In this view of the matter, the case of the respondent is not covered by subsection (2) of section 497, Cr.P.C. And the respondent was not entitled to bail. Resultantly, ing order is hereby recalled.