NASIR ASLAM ZAHID, J.---Petitioner/accused Muhammad Din son of Akbar has filed this petition seeking leave against the order dated 12-6-1997 passed by the Lahore High Court dismissing the bail application filed by the petitioner. We have heard Qazi M. Saleem, learned Senior Advocate Supreme Court for the petitioner and Syed Nadeem Saqlain, Advocate Supreme Court for the State.
With the assistance of learned counsel, we have gone through the relevant record.
2. Case F.I.R. No,76 of 1996 was registered at Police Station Ganda Singhwala on 17-5-1996 on the complaint of Jalal Din against the petitioner and three others. It was alleged that the four accused duly armed attacked complainant's nephew Mushtaq who died as a result of fire-arm injuries.
Against the petitioner, the case is that he had fired a shot with his rifle which hit the deceased at his back who fell down and succumbed to the injuries.
Petitioner's bail application was first rejected by the Additional Sessions Judge Kasur and thereafter, by the impugned order of the Lahore High Court. In support of the petition Qazi M.
Saleem, learned Senior Advocate Supreme Court for the petitioner, has raised the following contentions:--
(a) Three investigations, one after the other, had been conducted by S.H.O. Police Station Ganda Singhwala, D. S. P. City and by an Inspector who was Staff Officer of S.S.P. Kasur and all the successive investigations had found the petitioner innocent and, therefore, this was a case of further enquiry.
(b) The challan has been submitted and till now the name of the petitioner in column 2 and this also makes out a case for grant of bail to the petitioner.
(c) An identical role has been assigned to co-accused Muhammad Nawaz who has been granted bail by the High Court and, on parity of reasons, the petitioner should also have been granted bail by the High Court.
3. We would first take up the last contention. The High Court has not accepted the position that identical roles have been assigned to the petitioner and Muhammad Nawaz. It has been noted by the High Court in the impugned order that Muhammad Nawaz, as per the F.I.R., had injured the deceased on his right knee while shot fired by the petitioner (which hit the back of the victim) proved to be fatal, as per the post-mortem report. Therefore, the petitioner has not made out a case for grant of bail on this ground.
4. In respect of the first two contentions learned counsel for the petitioner sought support from the following reported decisions:
(i) Khalid Sarwar v. State (PLJ 1988 Cr. C (Lahore) 574).
In this case, bail was granted to the accused by a learned Single Judge of the Lahore High Court in a murder case observing that it was an admitted position that the petitioner was found innocent by the three Investigating Officers in their intensive investigations. Reliance was placed by the learned single Judge on the judgment of this Court in the case of Ibrahim v. Hayat Gul (1985 SCMR 382).
(ii) Ibrahim v. Hayat Gul (1985 SCMR 382).
This is the judgment of this Court on which reliance was placed in PLJ Cr C. (Lahore) 574. In this judgment, there is an observation to the following effect while considering section 497(2), Cr. P. C.: This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if any important prior condition is fulfilled, namely, that the officer incharge of police station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that 'there are no reasonable grounds for believing that the accused has committed a non- bailable offence'. Without such finding by such officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding. That being so the respondent could not be released on bail on ground of so-called further inquiry under subsection (2) of section 497, Cr.P.C.
(iii) Abdur Rehman v. State (1994 PCr.LJ 1020).
A learned Single Judge of the Lahore High Court, after observing that there was conflict in the findings given by different police, officers as to the guilt of the petitioner, the same ought to be resolved in favour of the accused. Bail was granted to the petitioner.
(iv) Muhammad Ilyas v. Ijaz Ahmad Butt (1992 SCMR 1857).
In this case bail had been granted by the High Court to an accused whose name appeared in column No,2 of the Challan. The leave against the grant of bail was not granted by this Court.
(v) Muhammad Aslam v. State (1996 SCMR 267).
This is an order whereby interim bail was granted to the petitioner after granting leave. It was noted that, according to the counsel, petitioner was declared innocent during investigation by an officer of the rank of A.S.P. And that the petitioner was 65 years of age.
(vi) Muhammad Mumtaz v. State (1988 SCMR 1452).
In this case bail applications of the petitioners/accused were dismissed by the High Court but this Court allowed bail to the accused on account of the fact that the High Court had erroneously considered the alleged statements made by the accused before the police; none of the persons who had supported the version of the accused was eye-witness and that the High Court had proceeded to make detailed comments on the police diary and on his own arrived at the conclusion that the reasons advanced by the investigating agency for declaring the accused as innocent were not sound.
' On the other hand, learned counsel appearing for the State opposing the petition relied upon the judgment of this Court in the case of Inayatul Haq v. Said Muhammad Khan (1988 SCMR 1743). In this case accused had been attributed direct role of having caused fatal hurt to the deceased. The bail application of the accused was allowed by the lower Court but the High Court cancelled the bail taking note of the fact that although police officer who appeared in Court expressed the opinion that accused was innocent and that his name might be mentioned in column No,2 yet there was sufficient direct evidence against the accused which justified the assumption that reasonable grounds existed that he had committed the offence. The order was challenged before this Court but then the petition for leave was withdrawn. After withdrawal of the petition, another application for bail was moved before the High Court on the basis of actual entry of the name of the accused in column No,2 on the basis that the police thought the accused to be innocent. The bail application was allowed by the High Court. The complainant came to this Court and his appeal was allowed and the bail granted to the accused by the High Court was cancelled.
5. After hearing learned counsel for the petitioner and State we are of the view that no case is made out for interference with the discretionary order passed by the High Court refusing bail. The petitioner is specifically assigned the role of firing the deceased which firing, according to the medical report, proved fatal. There are eye-witnesses of the role placed' by the petitioner.
Notwithstanding the 3 investigations showing the petitioner to be innocent, the 4th investigation by a senior police officer of the rank of A.S.P. Found the petitioner to be directly involved. Additionally, as observed, the name of the petitioner and his role have been specifically described in the F.I.R.
And there are eye-witnesses directly involving the petitioner in the crime and in this view of the matter the exercise of discretion does not call for any interference. The judgment of this Court in the case of Inayatul Haq v. Said Muhammad Khan (1988 SCMR 1743) supports the view taken by the High Court. In PLJ 1988 Cr.C (Lahore) 574, the learned Single Judge of the Lahore High Court relied upon the judgment in the case of Ibrahim v. Hayat Gul (1985 SCMR 382) but in the present case in addition to the F.I.R. And the statements of the eye-witnesses investigation by a high officer of the rank of A.S.P. Involves the petitioner in the crime in question.
Case of Muhammad Ilyas v. Ijaz Ahmad Butt (1992 SCMR 1857) is distinguishable as in that case it had been noted that police had not taken any steps to arrest the accused because for doing so police had to show that sufficient material is available against him and his name for that reason was to be taken out from column No,2 and put in the column of accused persons who were not in custody and that the trial Court had not taken any steps to show that the respondent was being treated as an accused person. In the circumstances, bail order granting bail to the respondent was not interfered by this Court.
Muhammad Aslam v. State (1996 SCMR 526) is of no help to the case of the petitioner as the same is only a leave granting order where interim bail was granted noting that petitioner was 65 years of age.
6. It may be observed that a Court, while considering the merits of a bail application, is required to take a decision, on the basis of the material available at the time on record, whether there are reasonable grounds to believe that the accused is involved in the crime, and should avoid taking the crucial decision merely on the basis of conflicting investigation reports and entry of the name of the accused in column No. 2 of the challan, which may be relevant but not the sole criteria for grant of bail.
7. No case for interference is made out. This petition is accordingly dismissed.