' This is a petition for grant of post-arrest bail on behalf of Muhammad Yasin and Muhammad Zafar who have been arrested in case F.I.R. No,156/95, dated 23-4-1995 registered under section 302/324/148/149, P.P.C. With Police Station Sadar, Depalpur.
2. The brief facts of the case are that the occurrence took place on 23-4-1995 at 5-30 p.m. Whereas Muhammad Jafar died at the spot and Zafar Iqbal who was injured during the occurrence died later on Faiz Ahmad complainant reported the police that at the time of occurrence he alongwith Saeed Ahmad, Zafar Iqbal, Muhammad Jafar and Muman was present at Chah Purbian Wala, Muhammad Hussain and Muhammad Yaseen armed with rifle, Amin, Zafar, Safdar Ali and Asghar All armed with Sotas came there and shouted Lalkara whereafter Zafar Iqbal ran but Yaseen fired a shot with rifle hitting him on the right buttock who fell down. Muhammad Hussain fired a shot with rifle hitting Muhammad Jafar on the left flank that too fell down. Amin, Zafar, Safdar and Asghar accused gave Sota blows to him on different parts of body due to which he died at the spot.
3. The learned counsel for the petitioners contended that the petitioners have been found innocent in three consecutive investigations as the plea of alibi set up by the petitioners was found to be correct and on the basis of the plea of alibi the third accused Muhammad Amin who has been named in the F.I.R. And specific role has been attributed to him, was granted bail by the learned Additional Sessions Judge by accepting the findings of Investigating Officers.
4. The learned State Counsel opposed the bail petition and contended that plea of alibi cannot be considered at this stage of bail; further contended that it was a daylight murder, specific role of inflicting injuries to one of the deceased has been attributed to Muhammad Yaseen petitioner while the other petitioner inflicted injuries to the other deceased.
5. I have heard the arguments of learned counsel for the petitioner at length as well as the State Counsel and have perused the record with their able assistance.
6. Admittedly, the petitioners have been found innocent by the police in all the three investigations and report under section 173, Cr.P.C. Was submitted to discharge the petitioners but the learned Magistrate did not agree with the report and left the matter at the mercy of trial Court.
7. It is necessary to point out that the Courts indeed have discretion under section 497, Cr.P.C. But are bound to exercise it judiciously with due care and caution by taking all facts into consideration and material produced before the Court; while hearing a bail application this Court will not go deep into the evidence as sifting of the evidence or deeper appreciation of the evidence at trial stage is not required to be done; all that is required under section 497, Cr.P.C. Is to assess as to whether the reasonable grounds exist to believe the petitioners to be connected with the commission of the alleged offence or otherwise.
8. The learned counsel for the petitioners relied upon cases Nek Muhammad v. The State 1991 SCM R 1630, Asghar Masih v. The State 1995 PCr.LJ 544, Rehmat Ullah alias Rehman v. The State 1970 SCM R 299 and Muhammad Aslam v. The State 1993 SCM R 2288 wherein the accused were granted concession of bail as were found innocent in the investigations successively by the police. Further, relied upon case Khalid Javed Gillon v. The State PLD 1978 SC 256 wherein bail was granted on the plea of alibi supported by the affidavit of a disinterested person.
9. While it is well-established principle of law that a Court is not bound by the opinion of the Investigating Officer. The Court has to form its own opinion in the light of the evidence and material brought on record.
10. In case in hand; the opinion of the Investigating Officers is primarily based on the affidavits of certain colleagues qua the alibi of the petitioners. None from the locality where the occurrence took place came forward to support the plea raised by the petitioners that they did not participate in the occurrence. 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 witnesses mentioned in the F.I.R. And the medical evidence corroborates their testimony.
11. The facts of the case in hand are quite distinguishable from the facts of the cases cited at the Bar by the learned counsel for the petitioners. The evidentiary value of 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 provisions which warrant further inquiry. As it was held in case Mst.
Bashiran Bibi v. Nisar Ahmad PLD 1990 SC 83: "Criminal Procedure Code (V of 1898)--- ' S.497(2)---Further inquiry---Mere filing of affidavits of 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."
12. It was observed in case Sadoro v. The State 1990 PCr.LJ 1186 that "it is the overall consideration of a case which qualifies an accused person for grant of bail. All factors are to be weighed and assessed. Even an iron-clad plea of alibi may disappear altogether on closer examination. It is not unheard of that people, even in police custody, by recourses to collusion and use of unhealthy practices, may yet have their way. Further, a plea of alibi has its own limitations in the context of bail, which obviously, is not the same thing as a determination on regular trial. Of all such matters the Court seized of the case is to be the Judge".
13. The petitioners have been specifically named in the F.I.R. With specific role, hence in the presence of eye-witnesses; the plea of alibi cannot be relied C upon.
14. According to my mind, the opinion of the Investigating Officers with regard to the innocence of the petitioners is not based on any cogent evidence tenable in law for the purpose of bail and there is overwhelming ocular evidence prima facie connecting the petitioners with the alleged offence (of double murder) which is corroborated by the medical evidence. I am not I convinced to admit the petitioners to bail at this stage. The petition lacks merit E which is hereby dismissed.