' The petitioners are involved in a Case F.I.R. No, 234 of 1998, dated 20-7-1998 for an offence under section 324/34, P.P.C., later on amended under section 302, P.P.C., registered at Police Station City Muridkey, District Sheikhupura.
2. The facts as stated by Muhammad Asif Naveed complainant to Muhammad Ziaul Hag, S.1., were that on 20-7-1998 at 5-30 a.m. The call bell of the house rang and the complainant went out to ease. He found Master Muhammad Ali alongwith two persons who stated to him to send his father outside. The complainant went inside, informed his father, who went out alongwith the complainant and his elder brother Babar Naveed. They issued firing on the father of the complainant blindly and injured him. On hearing the voice of the firing, Qaisar Naveed the brother of the complainant also came out. They also went inside to bring the weapon and raised noise, on which the accused ran away waiving their weapons sitting in the vehicle and succeeded him making good their escape. The father of the complainant was lying on the ground as seriously injured to whom his brother Qaisar Naveed was trying to pick up. They brought the injured to the Mayo Hospital for treatment and could not lodge the report in the police station where Muhammad Ziaul Haq, S.I., had come on information of the incident along with Abdul Jabbar Constable 1035 and Muhammad Yasin Constable 1003 at Emergency Ward where the said statement was recorded and F.I.R. Was registered under section 324/34, P.P.C.
3. Earlier the bail was refused by the learned Additional Sessions Judge, Ferozewala with the following observation on 22-2-1999:-- "No doubt petitioners were not nominated by the complainant in the F.I.R. Initially but they were nominated through supplementary statement of complainant and eyewitnesses who were sons of deceased and they witnessed the occurrence. They were the natural witnesses. The petitioners have not claimed any enmity with the complainant or the deceased and eye-witnesses. Both the petitioners led to the recovery of weapons of offence. In the light of above circumstances the case of the petitioners is not that of further inquiry. The counsel for the petitioners argued that petitioners were not got identified by the police and as such their case was that of further inquiry on this score.
I am afraid this argument has lost force as the petitioners were nominated by the complainant and the eyewitnesses through ,supplementary of the complainant and statement recorded under section 161, Cr.P.C., and as such there was no need to conduct identification prade. The counsel for the petitioners has also argued that the petitioners' case was that of further inquiry as they were not found to be guilty of the offences by the Investigating Officer of Range Crime Police. I have perused the record carefully. The version of Investigating Officer is not based on any solid material as none of the persons on whom he relied upon, were present at the time of occurrence. Moreover the complainant and the eye-witnesses will stand to their version and prima facie guilt of the present petitioners is proved by way of recovery of weapons of offence."
4. The bail is now pressed on the ground that the petitioners are innocent law abiding citizens and they have falsely and maliciously been implicated in the case due to enmity. With the complainant party and that they are not named in the F.I.R. Nor specific role has been attributed to them in the said F.I.R. And also there is no description mentioned in the F.I.R., to connect the petitioners in the alleged offence and the case against them is highly doubtful and attracts the provisions of section 497(2), Cr.P.C. Being a case of further inquiry and that in the above case four investigations have been conducted. One by the S.I./S.H.O. Muhammad Ziaul Haq, who arrested the petitioners and during the course of investigation declared them guilty, the second by the A.S.P. Muhammad Amin Yousaf Zai, who declared the petitioners as innocent, the 3rd was conducted by D.S.P. Mr. Ghulam Qasim Khan, who also declared them as innocent and the last investigation was conducted by the S.P. Range Crimes Branch, Lahore, who also found the present petitioners as innocent on 8-2-1999 and that real culprits were Muhammad Asif alias Wasim alias Fauji son of Nawab Din and mmad Ashfaq alias Bholay Shah son of shtaq Shah who have been challenged in this case and that the petitioners are not previous convicts, nor desperate or hardened criminal and also have no criminal history with any police station nor there is no apprehension of the petitioners ascendance or tampering with the prosecution evidence if the petitioners are admitted to bail for which they are ready to furnish bail bonds to the entire satisfaction of the Court.
5. The bail is vehemently opposed by the learned counsel for the State.
6. I have given due consideration to the valuable arguments on both sides.
7. The tentative assessm ent of the record shows that the petitioners are not named in the F.1.R. And in three successive investigations they have been found innocent and two other persons have been challaned.
8. In the case of Ibrahim v. Hayat Gul and others (1985 SCM R 382) where the High Court had allowed bail in a murder case in which the accused had absconded for more than a year and he surrendered soon after the acquittal of his co-accused who were tried in his absence. After his arrest the learned Sessions Judge refused to grant him bail being directly charged by the deceased person in his dying declaration as the main culprit who shot at him. The High Court taking note of the fact that the co-accused were acquitted on consideration of the prosecution evidence led in the case, the appellant was entitled to bail on ground of what he put as further inquiry and the abscondence of the accused could not be considered as an impediment in that behalf. Leave to appeal was granted on a petition filed by the father of the deceased for cancellation of bail to examine the effect of ascendance for a long time on concession of bail. The Hon'ble Supreme Court set aside the bail order. In the said judgment the light thrown by the Hon'ble Supreme Court on the question of further inquiry which is reproduced with advantage for the purpose of the instant case as under:-- ' Be that as it may it is essential to point out that the concept of 'further inquiry' besides being misused in the grant of bail in many cases, the same has not been pressed in service when refusing to grant bail. The relevant provision of section 497 in this behalf reads as follows: "497. When bail may be taken in case of non-bailable offence.
' If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.'
' 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 an 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 to him by the same provision. In the present case neither the officer nor the Court concerned recorded the per-requisite 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."
9. In the case before me three police officers have successively recorded that the petitioners are innocent. As such, the case of the petitioners is that of further inquiry in the light of the above precedent.
10. For the above reasons the petition merits to be allowed and the same is allowed with the direction that the petitioners shall be released on furnishing their bail bonds in the sum of Rs,2,00,000 (Rupees two lacs) each with two sureties each in the like amount to the satisfaction of the Trial Court.