' Asmat Ullah, deceased was murdered for which petitioner Azeem Khan and Abdus Sattar stand charged.
2. The occurrence was reported by Mir Salam on 3-2-1997 at 14-00 hours in Police Station Norang, Lakki Marwat.
3. The complainant and his son Asmatullah deceased had gone to primary School Sahibzada, Khost Hidayatullah, as it was General Election day, and they were to cast vote in the Primary School Polling Station. It was at 1-30 p.m. That the two accused allegedly came there both armed with D.B.
Shot guns and fire done shot each, hitting the deceased, resulting in his death. Motive for the offence, given in the report to the effect that brother of Azeem Khan, petitioner, Gulfaraz was murdered for which Asmatullah deceased was charged but latter acquitted.
4. Learned counsel for the petitioner in support of his arguments submitted that the injuries sustained by the deceased have not been described in the relevant column of the injury sheet and inquest report, also submitted, that the prosecution has improved upon their original version by induction of point No, A in the site plan, in his view, this deliberated attempt was to bring the ocular account in conformity with the medical evidence. He also argued, that as it was election day and the police was on duty on the polling station, and that, one Muhammad Sharif S.I. And Muhammad Ayaz Foot Constable have been shown at points Nos.6 and 7 in ihe site plan, not only this but, their statement under section 161, Cr.P.C. Have also been recorded and that, they are not toeing the line of the prosecution. He also argued that if the complainant was present on the spot he should have reported the matter then and there to Muhammad Sharif, S.-I.
5. After having made the above challenges to the case of the prosecution, the second limb of the arguments of the petitioner counsel was, that the Investigating Officer who went to the spot after the registration of the case, in his first police diary has opined that the real occurrence has been done by one Amanullah (Absconding accused). He further submitted that in suppori of innocence of the two petitioners, large number of persons namely Muhammad Ilyas, Gul Saadat, Muhammad Aslam, Mir Peo Jan, Zaitullah, Izzat Khan, Ghazi Mar Jan, Bahadur Khan, Asmatullah Khan and one Salim Khan have made statement to the police, besides, they have also field affidavits. He contended that it was on the basis of this material that in the final report, the Investigating Officer has placed the two petitioners in column No,2 of the Challan and that this position has been endorsed by D.S.P., P.D.S.P. And finally approved by the S.P. Concerned.
6. Learned counsel on the aforestated grounds submitted ihat the accused/petitioners are entitled to bail.
7. Rebutting the arguments advanced by the learned counsel for the petitioner, learned Assistant Advocate-General for the State and counsel for the complainant submitted that as far the point raised by the petitioner in respect of so-called weakness of the prosecution case, the same are not material, and also that it will be deep appraisal of evidence which is not permissible at bail stage.
They contended that, what is to be seen at the stage of bail is prima facie case. They submitted that the report has been made with promptness, as ihe occurrence took place at 1-30 p.m. And the report was made 2-00 p.m. i,e, within 30 minutes of the occurrence that too in the police station which is at a distance of 3/4 Kilometers from the spot. The accused/petitioners are directly charged in the F.I.R., the non-reporting by the complainant to Muhammad Sharif is not relevant at this stage as his presence cannot be doubted due to the fact that within shortest possible time the report was made in the police station. They further contended that it is a daylight occurrence and motive existed for commission of the murder.
8. Meeting the arguments in respect of the plea of defence/innocence of the petitioner, it was submitted that the Court can take judicial notice of the fact of the growing tendency on the part of the police indulging in dishonest investigation in that, they submitted that although on the very first visit the Investigating Officer has opined about the innocence of the two petitioners but did not record the statement of any person in support thereof. The belated statement of the persons named above and their affidavits were challenged on the ground that none of the witnesses voluntarily appeared before the police to depose at the earliest opportunity. It was also argued that the accused/petitioner remained absconder till 20-3-1997 while the occurrence took place on 3-2-1997.
9 . After having heard the respective arguments both on behalf of the petitioners and the complainant/State. I would refrain to make any detailed comments on the case of the prosecution.
The occurrence took place at 1-30 p.m. And within 30 minutes the two accused were charged for effective role, duly supported by medical evidence. The injuries sustained by the deceased prima facie appears to be caused by shot gun. The site plan and the medical evidence although does not appear to be at variance at this stage, if the defence have got any point, the same can be highlighted at the trial. The non-reporting by the complainant to Muhammad Sharif 5.-I. Require explanation which can be sought during the trial. The day of occurrence was the date of General Election, 1997 and it can be presumed that the police on election duty remained more concerned with affairs inside the Polling Station while the occurrence took place outside.
10 Coming to the arguments that the two accused have been placed in column No,2 will not by itself as of right make the accused entitled to bail.
11. In Zaheer-ud-Din and two others v. State PLD 1990 SC 959, the august Supreme Court made the following observations:-- "Police should not arrogate to themselves the last word in respect of the guilt of innocence of a accused person."
' Similarly in 1989 PCr.LJ 2253 in case of Shadi Khan v. Matiullah and another. His Lordship Mr. Justice Muhammad Bashir Jehangiri (now Honourable Judge of the Supreme Court) cancelled the bail granted to the accused who was placed in column No,2 by the police. The learned Judge in Para.11 of the judgment observed as under:-- "With utmost respect I would differ with the proposition canvassed at the Bar that if the Investigating Officer has found the accused innocent and placed him in Column No 2 of the challan ihen he would be entitled to bail as of right. In support of the plea for bail on behalf of the respondent, the only ground urged is that during the investigation he was found innocent by the police and placed in Column No 2 because at the time of the alleged occurrence he was found in another village. The oral statements of some witnesses including that of Muhammad Ali Pawinda recorded long after the occurrence, to my mind are not enough to attract the benefit of Badiuzzaman's case referred to above. The respondent has been assigned in the F.I.R. And effective role in the murder of the deceased and the charge is supported by the statements recorded under section 161 Cr.P.C. The belated statements of Muhammad All Pawinda P.W. And others referred to above are not prima facie based on sound material as held in Muhammad Afzal v. Nazir Ahmad 1984 SCM R 429. It is not the single case from jurisdiction of Bannu District that such a plea has been advance. In a number of cases I noticed a tendency that such a plea is advanced and relying on Badiuzzaman's case, the accused are being declared innocent and placed in Column No 2 of the Challan. In my view, however, the opinion of the police qua the innocence of the respondent in this case is not based on sound material and, therefore, even if he has been placed in Column No, 2 of the challan, he would not be entitled to hail. On consideration of the entire material on the file and abscondence of the respondent for over eight months, I have formed the opinion that there are reasonable grounds for believing that the respondent has committed the offence with which he had been charged. (above underlining is done by me).
12 In this case, the accused remained fugitive from law, warrant of arrest were issued against them and proceedings under sections 87 and 88, Cr.P.C. Were also initiated. They were arrested during a raide. It was thereafter that they made an application claiming their innocence pursuant to which the witnesses named above filed an affidavit and were examined by the police. It is important to note that their statements were recorded by the police on 25-5-1997.
13. Learned counsel for the complainant has placed on record Affidavits of Gul Saadat, Matiullah and Bahadur Khan who have disowned the execution of earlier affidavits, in favour of the petitioners. The learned counsel for the petitioners while arguing stated at the bar that these three witnesses have again sworn affidavit i,e, third time stating that their second affidavit against the petitioners were taken from them on gun point. Where the defence witnesses are taking such somersault they have impeached their own character. One cannot say with surety that even the first affidavits were obtained through coercion or by putting pressure or were voluntarily given.
14. Learned counsel for the petitioners has cited PLD 1995 SC 34, 1992 SCM R 1857 and 1986 SCM R 1978 in support of this contention, that a person having been placed in Column No,2 of the challan should be released on bail.
15. The above judgments would not help the petitioners. Because, in this case, in the presence of direct charge made within span of 30 minutes cannot be conveniently oversight by placing reliance on belated stand set up by the defence. That too, in the form of oral statement. It was stated at the bar that some of the witnesses so examined by the police are living for away from the scene of occurrence while others are closely related to the petitioners.
16. Placing a person in Column No,2 of the Challan is the prerogative of the police but the same cannot be treated as the final words as to the innocence of an accused person. The culpability or otherwise of a person charged in a case is a function of the Court to determine.
17. What I have observed above, in respect of the plea of accused is for the purpose of tentative comparison of the material placed on file by both the parties, it shall not have any binding/persuasive effect on the mind of the trial Judge when seized of the matter. This application being without merits is dismissed.