' One Ghulam Qadir lodged an F.
1. R. At 5-20 p.m. On 22-4-1975 which was recorded under sections 302/148/149, P. P. C. On the allegations that while the complainant was busy in the ablution in the village mosque at paishewayla, his sister-in-law's son, Muhammad 1qbal (deceased) who was on leave from the Army for the last 10/12 days, came to the mosque for a bath. After putting in some water in the tank, he went inside the bath room. Hardly he bad put off the shirt and the vest that from the street suddenly the two petitioners Aitbar Khan and Boota Khan armed with pistols, three others with pistols and gun and one Mawaz with knife came there and attacked Muhammad Iqbal. The latter died in the bath room of the injuries received. During the investigation two more persons were said to be the accused persons. The two petitioners, along with the person said to be armed with knife, namely, Mawaz Khan applied for bail in this Court vide C. Misc. No, 3005/B of 1975. As it was stated that the deceased had received no knife injuries, but only fire arms injuries, the person with knife i,e, Mawaz was allowed bail but the application of the petitioners was rejected is they were named in the F.
1. R. And having Used the weapons corresponding to the injuries on the deceased, vide order dated 13-8-1975. The two petitioners have, again, applied for bail.
2. The learned counsel for the petitioners has contended that previously the learned counsel for the State had stated that though the Investigating Officer had come to the conclusion that the two petitioners, Along with some others, were innocent but his conclusion was not agreed to by the Circle Inspector. Learned counsel contends that this submission was inaccurate because the Circle Inspector had, in fact, agreed with the report of the Investigating Officer and had also ordered that the two petitioners, along with four others, should be placed in column No,
2. It is, then contended that besides the informant Ghulam Qadir and Khan Malik, who are related to the deceased, there were two other persons named as eye-witnesses in the F. I. R., namely, Muhammad Din and Shahu alias Shah Muhammad. Muhammad Din bad filed a private complaint against the informant Ghulam Qadir under Section 452, P. P. C. In which he had made a statement that it had falsely been said that he was an eye-witness in the murder case. He was not present at the spot. He was away at a distance of 600/700 yards and the informant, too, was with him at that place. Shah Muhammad, on his part as well, has filed a private complaint under section 506, P. P. C. Against the informant Ghulam Qadir wherein he has also stated that he was not present at the place of occurrence and his name as an eye-witness in the murder case has falsely been mentioned and that he did not know anything about the murder. Learned counsel has also submitted that these two persons, Muhammad Din and Shah Muhammad, are related to the informant Ghulam Qadir.
Consequently, the learned counsel contends that the two of the eye-witnesses mentioned in the F.
1. R. In the murder case having deposed that they did not know anything about the murder and also that Ghulam Qadir too, was a false witness, the case of the petitioners is one requiring further inquiry under section 497 (2), Cr. P. C, and the petitioners are, therefore, entitled to bail. He has placed reliance on Pervaiz Ahmad and another v. The State (1), 4h,nad Ali and another v. Haft Sulemen Ali Muhammad and another (21, Muhammad Fazil alias Gogi v. The State (3), Fateh Khan v. The State (4) and Muhammad Ali and 2 others v. The State (5).
3. Learned counsel for the State has opposed the bail application on the grounds that the F. I. R.
Was promptly lodged and the petitioners were named in the F. I. R. As carrying fire arms and having used the same to kill the deceased. It is, next, contended that the informant, Ghulam Qadir, had appeared before the Inquiry Magistrate and supported the in prosecution case. Besides that, the other witnesses named in the F. I. R. Have not yet appeared in the case, the fact that two of them i,e, Muhammad Din and Shah Muhammad bad made statements in other proceedings denying their presence has no relevance for the purposes of the present proceedings. It is, then, contended that the application of the petitioners for bail was earlier ,rejected by this Court and since then nothing new has happened entitling the petitioners to bail. {{FOOT NOTE}}
(1) 1973 P Cr. L J 283 (2) 1975 P Cr. L J 315 13) 1975 P Cr. L .1 425 (4) 1973 P Cr, L J 125
(5) 1972 P Cr. L J 314 {{FOOT NOTE}}
4. The deceased was on leave from his service in the Army and had gone in broad day-light to the mosques bath room. It is admitted that he was killed by fire arms injury. The two petitioners are named in the F. I. R. As carrying pistols and having used them. The informant Ghulam Qadir has supported the prosecution case in the Court. The fact that two of the witnesses mentioned in the F.
I. R. Have, in other proceedings, denied their presence and would not be likely to support the prosecution in the murder case, cannot be taken at this stage so as to nullify the prosecution case as regards the culpability of the petitioners who have been named in the F. I. R. As carrying pistols and having used the same on the deceased. The question as to which of the witnesses to be produced by the prosecution is to be accepted and which is to be discredited can only be done at the trial. It is premature at this stage to say that there are no reasonable grounds to believe that the petitioners are not guilty of the offences punishable with death or imprisonment for life. As regards the contention that the first Investigating Officer found the petitioners innocent and that his report was affirmed by the Circle Inspector, it needs only to be said that the learned counsel for the State at the previous stage had made a submission that the first Investigating Officer was corrupt and the Circle Inspector had not agreed with this report that the petitioners were innocent.
The record now with the learned counsel for the State, to which the reference has been made by the learned counsel for the petitioners, especially to the zimini No, 35 recorded by the Circle Inspector, shows that the latter had also found the petitioners, along with four others as innocent.
But the Zimini referred to, as it finds place in the record, cannot be taken on its face value as it appears to be written on a different kind of paper than the previous pages of the file. Besides, there seems to be some over-writing on the numbering of the Ziminis. Nothing more need be said in this behalf at this stage. It is well established law that opinion of a Police Officer is by no means binding on Courts in determining the liability or otherwise of the persons involved in criminal cases. Since the petitioners have been named in the F. I. R. As armed with pistols and having used the same to kill the deceased and their bail application has earlier been rejected by this Court, there is no justification to go over the matter all over again. In this view of the matter, the application for bail is rejected.