' Nazar Muhammad-petitioner, the complainant in case F.I.R. No,219/95 under section 302, P.P.C.
Registered at Police Station Civil Lines, Bahawalpur, has moved this petition for cancellation of to Atif Ilahi, respondent-accused, by Mr. Irshad Hussain Abdi, learned Additional Sessions Judge, Bahawalpur, vide order, dated 14-2-1996.
2. According to the prosecution story as obtained from the contents of the F.I.R. Nazar Muhammad and his son Sajid Ahmad, who are cycle mechanics, were working at their shop when at about 8-00 p.m. On 6-7-1995, they were informed by Muhammad Ajmal, P.W., the brother of the complainant, that their another brother Shabbir Ahmad and Atif Ilahi (accused) were fighting with each other at a hotel being run by one Abdul Razzak. On receipt of this report, the complainant, his son Sajid and Ajmal rushed to the hotel and they saw Shabbir Ahmad and Atif Ilahi both fighting and causing fist blows to each other. The complainant intervened and separated the both and advised them not to resort to any aggression. The respondent-accused, while leaving the place, threatened the complainant party with dire consequences. The complainant and his brother were still present there when the accused-respondent came back in a car armed with a rifle and he parked his car by the road side and came out of it. He straightaway went up on the roof of the hospital building belonging to his father, Dr. Atta Ilahi and from there he fired shot at Shabbir Ahmad, who ducked in a side lane. He fired second shot that hit Shabbir Ahmad on his back on account of that he fell down and became incapacitated. The witnesses urgently removed the injured to the hospital and on the next day he expired as a result of fire-arm injury. The case was registered the same day only one hour after the occurrence took place. During the investigation, the accused led to the recovery of rifle, the crime weapon, from the backyard of the hospital building belonging to his father on 14- 7-1995. Since the rifle recovered on the pointation of the accused was found to be without licence, therefore, a separate case under section 13 of the Arms Ordinance, 1965, was registered vide F.I.R.
No,226/95, dated 14-7-1995.
3. The respondent-accused moved first bail application before the learned Sessions Judge, Bahawalpur, which was entrusted to Chaudhry. Ahsan Ahmad, Additional Sessions Judge, for disposal that was withdrawn by the respondent-accused on 26-9-1995 without assigning any reasons for withdrawal. The second application was moved before the learned Sessions Judge that was entrusted to Syed Irshad Hussain Abdi, Additional Sessions Judge and this application was dismissed for non-prosecution on 23-1-1996. The respondent, however, moved the third bail application on 28-1-1996, five days after the dismissal of the second bail application on the similar grounds as were agitated in the previous two bail applications. This application was heard on 14-2- 1996 and the learned Additional Sessions Judge accepted the application and allowed bail to the respondent-accused in the sum of Rs,50,000 with one surety. The bail was allowed to the respondent-accused only on two grounds; firstly, that S.P., C.I.A., had found the respondent- accused innocent and had recommended to the learned Magistrate for cancellation of case against him; and secondly that the location of the injury as per M.L.R. Could not be believed to be the same in view of the directions highlighted in the site plan prepared by the police assessing the position of the accused, while he fired shot from the roof of the building said to be 35 feet in height from the ground. Beside these points, the learned Additional Sessions Judge has neither referred the recovery nor eyewitness account nor the defence version nor any other relevant attending circumstance.
4. I have heard the learned counsel for the parties at length and perused the record.
5. Learned counsel for the respondent-accused pleads that the case was investigated thrice and all the three Investigating Officers, including the S.P., C.I.A., had given different versions and out of these three Police Officers, S.P., C.I.A, has found the respondent-accused innocent and forwarded his report to the Magistrate recommending cancellation of case against the accused. It is further argued that the medico-legal report does not support the prosecution story as given in the F.I.R. In view of these discrepancies, it is a case of further inquiry and the respondent-accused is entitled to bail. It is also argued that the benefit of doubt is extended to the accused at bail stage as well.
Learned counsel has referred several authorities in support of his contentions, those are 1994 PCr.LJ 3092, 1990 PCr.LJ 529, 1986 PCr.LJ 2180, 1990 PCr.LJ 1035, PLD 1995 SC 35 and 1990 PCr.LJ 640.
' The learned counsel for the petitioner/complainant has argued that important factors not considered by the learned Additional Sessions Judge are: (i) eye-witness account; (ii) recovery of weapon of offence; (iii) no plausible defence version; (iv) the evidence has yet to be recorded as the challan has been submitted only a few days back; and (v) the offence committed by the respondent-accused falls within the prohibitory clause of section 497, Cr.P.C. And in such-like cases grant of bail is an exception and not a rule. Learned Assistant Advocate-General for the State has also been heard, who has adopted the arguments advanced by the learned counsel for the complainant and supports cancellation of bail.
7. After hearing the lengthy arguments, I am of the view that the learned Additional Sessions Judge has allowed bail to the respondent-accused in a highly hurried manner without carefully examining the relevant features of the case and has completely ignored the well-established principles as laid down by the superior Courts for grant or refusal of bail particularly in murder cases.
8. The most important feature of the case which is not even referred to in his order by the Additional Sessions Judge is that the complainant when got disappointed with the result of the investigation conducted by the S.P., C.I.A. He filed a private complaint in the Court and the learned Additional Sessions Judge forwarded the complaint to Mr. Shariq Masood Ansari, Magistrate 1st Class, for inquiry under section 202, Cr.P.C. The learned Magistrate conducted a thorough inquiry in accordance with law and made a report on 11-1-1996, whereby he found the respondent-accused prima facie guilty. The learned Additional Sessions Judge must be aware of this report on 14-2-1996 when he passed the bail order.
9. As regards the plea that since the respondent-accused has been declared innocent by the S.P., C.I.A., he is entitled to the benefit of doubt at bail stage, I am least persuaded by this argument. No doubt, the S.P. Has exonerated the respondent-accused from the commission of offence but this report alone is not sufficient to render the case doubtful or as one of further inquiry inasmuch as the first Investigating Officer who conducted the investigation has found the accused-respondent guilty and similarly in the investigation by Ali Akbar, D.S.P., subsequent to the investigation of S.P., C.I.A., the accused is held responsible for commission of offence of murder and he has courageously differed with the result of investigation conducted by S.P. In express terms in his report irrespective of his seniority in rank. The report of D.S.P. Is more comprehensive and to the point than the report of the S.P., C.I.A.., which is not based on any relevant material whatsoever.
10. In this case, there is eye-witness account sufficiently connecting the accused with the commission of offence; there is recovery of weapon of offence at the pointation of the accused; there is inquiry report of the Magistrate 1st Class under section 202, Cr.P.C.; reports of two Investigating Police Officers holding the accused guilty as against the one report in his favour; and there is a medico-legal report supporting the, prosecution version. In the absence of any plausible defence version so far brought on record, prima facie the accused being found guilty is not entitled to concession of bail in view of the prohibitory clause of section 497, Cr.P..C. And particularly when the trial is yet to commence.
11. So far as the solitary report of S.P., C.I.A. Exonerating the accused is concerned, in case Liaqat Ali v. The State reported in PLD 1994 SC 172, it was held by the Honourable Supreme Court that such report is not binding on the Court and does not carry any weight. The relevant portion thereof is reproduced hereunder:--- ".... It is now well-settled that the opinion of 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 grant of bail. Although due weight is given to such opinion, .Hut 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...."
12. The learned Additional Sessions Judge to justify the grant of bail to the respondent, as discussed above, has based his findings on M.L.R. Which is yet to be tested through evidence of the doctor during the trial and he has assessed the weight and credit-worthiness of M.L.R. Prematurely for the purposes of bail which practice is not appreciated by the superior Courts through series of pronouncements. The order of the learned Additional Sessions Judge, dated 14-2-1996 allowing bail to the respondent-accused is arbitrary and capricious and is passed without applying judicious mind.
13. For what has been discussed above, this petition is accepted and the to the respondent- accused vide order, dated 14-2-1996 by the learned Additional Sessions Judge is cancelled.
14. Before I part with the case, I deem it proper in the interest of justice to withdraw the case for trial from the Court of Syed Irshad Hussain Abdi, Additional Sessions Judge, Bahawalpur, and entrust to the learned Sessions Judge, Bahawalpur, who either should hold the trial himself or entrust to any other Additional Sessions Judge for trial.
Bail cancelled.