' An F. I. R. Was lodged by Mst. Kaniz Begum that while she alongwith her sister and mother was going, their mother was attacked by the petitioners and one Rehmat Ali who had hatchet and Sota in their hands and killed her on the spot. After the registration of the case, the Investigating Officer visited the spot and arrested the co-accused Rehmat Ali and two other persons, namely, Arif and Shaukat as the real culprits. He recovered bloodstained clothes and weapons of offence from these persons i,e, Rehmat Ali Arif and Shaukat. Twenty days later, the petitioners were also arrested.
After completion of the investigation, the Investigating agency came to the conclusion that the petitioners were innocent and the real culprits were Rehmat Ali, Arif and Shaukat but without taking the responsibility of discharging or putting the petitioners in column No, 2, the Investigating agency sent up all the six persons for trial. The petitioners applied for bail before the learned Sessions Judge but their bail application was rejected on 19-7-1976. They have filed the present petition for bail.
2. Learned counsel for the petitioners has contended that after the registration of the case, the police came on the spot and came to know that the real culprits were other persons than the petitioners who were arrested and from whom blood-stained clothes and weapons of offence were recovered. Some 60 persons appeared before the Investigating Officer to say that the petitioners were not guilty and, in fact, the persons involved were the other three aforementioned persons. Learned counsel has, next, submitted that Siraj Din, petitioner No, 1 is a complainant in a case of a murder committed by the brother of Mst. Kaniz Begum, the complainant in the present case, and, therefore, he has wrongly been named in the F. I. R. He has, then, contended that it is an admitted fact that a litigation has been going on between the complainant party and the petitioners for quite sometime and it was on account of that that the petitioners have been involved falsely in this case. Learned counsel has also added that no recovery whatsoever has been effected from the petitioners. Learned counsel has referred to Rehmat Ullah alias Rehman v.
The State and others (1) and Allah Bakhsh and another v. The State (2) to contend that even though finding of innocence by Investigating Officer may not be admissible, an adverse inference would be drawn so as to put the matter into enquiry and the petitioners in the circumstances would be then entitled to bail under sections 497(2) of Cr. P. C.
3. Learned counsel for the State has submitted that the petitioners are specifically named in the F. I.
R. And there is no question of wrong identification either because the complainant is related to the petitioners and naturally would recognize them, learned counsel has, however, admitted other facts submitted by the learned counsel for the petitioners which stand established from the police file. Therefore, he has found himself not in a position to oppose the bail application as he normally does.
4. There is no doubt that the petitioners are named in the F. I. R. As having committed the crime.
Normally they would not be entitled to bail. However, in the present case immediately after registration of the case, the Investigation Officer went to the spot and found that Rehmat Ali, Arif and Shaukat were involved. He arrested these persons. Blood-stained clothes of their were recovered, so also weapons of offence were recovered from them. The petitioners were not arrested until after twenty days and even then no incriminating evidence was found against them.
On the other hand, more than 60 persons appeared and stated before the Investigating Officer that not the petitioners but the three others mentioned above were guilty. These three persons are no strangers but relatives of the petitioners. Arif is a son of Siraj Din, petitioner No, 1 and Shaukat is son of Ismail brother of petitioner No,
1. Therefore, in all the circumstances of the case, the only material against the petitioners being F. I. R. And the entire material against the aforesaid three persons, it appears that the case requires further enquiry falling under section 497(2), Cr. P. C. And the petitioners are, therefore, entitled to bail. In this view of the matter, the petitioners are allowed bail in the sum of Rs, 10,000 (ten thousand) each with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Vehari. It goes without saying that any observation made in this order is confined to these proceedings and would have no bearing or relevance on the trial. {{FOOT NOTE}}
(1) 1970 SCM R 299 (2) 1971 P Cr. L J 1051 {{FOOT NOTE}}