' My this order shall dispose of Criminal Miscellaneous No, 78 of 2001 (Inamullah Khan v. The State) and Criminal Miscellaneous No,87 of 2001 (Gul Zaroof Khan v. The State), as both have arisen out of case F I R. No.166 dated 14-10-2000 of Police Station Ghazni Khel.
2. Occurrences took place on 14-10-2000 at 11-00 a.m. And the report was made the same day at 11-30' a.m. By Zareen Khan complainant of the case where he has charged the two petitioners alongwith one Malik Khan to have made fire shots on the complainant who received two fire-arm injuries on his buttock.
3. Inamullah Khan petitioner herein had earlier sought bail on merits but was refused by this Court on 12-1-2001. The bail application of Gul Zaroof Khan is, therefore, dismissed on short ground that on merits the charge against him and his co-accused Inamullah Khan was exactly similar, i,e, both were attributed firing with there 30 bore pistols and learned counsels for petitioners could not distinguish the case of Gul Zaroof Khan petitioner from that of Inamullah Khan who stand already Refused bail by this Court.
4. Inamullah Khan has now sought bail on the ground that inquiry/investigation further conducted revealed that he is innocent and falsely charged therefore the Investigating Agency has now placed his name in Column No,2 of the challan prepared on 16-5-2001.
5. Learned counsel for petitioner Inamullah Khan states that petitioner has taken the plea of alibi at the very outset when in the first round he applied for pre-arrest bail on 5-11-2000, i,e, within one month of the date of occurrence and his stance was that at the relevant time he was not present in Tajazai Adda, i,e, scene of crime but in fact had gone to Talagang/Chakwal with his 'other friends for hunting of 'Kuni', a bird from duck family.
5. Learned counsel appearing for complainant vekemently opposed the grant of bail and with.
Reference to judgment of this Court reported in 1998 PCr.LJ 752 states that mere fact that petitioner has been placed in Column No,2 of the challan ipso facto would not be a proof of innocence of accused that could exonerate him of the charge. Learned counsel has referred to promptness of F.I.R. Made within thirty minutes with two fire-arm injuries on the person of the complainant and has also referred to order sheet of learned Additional Sessions judge/Judge Special Court, Lakki dated 14-10-2000 and has also produced certified copy of an application filed by Inamullah Khan petitioner before such Court for summoning one Malik' Khan as P.W. And argued that such record confirmed the fact as given in the instant F.I.R. That on the day of occurrence Inamullah was very much present in Lakki Marwat because he has attended the Court as mentioned above. It is - argued that mere oral statement in support of the plea of alibi would nor' be sufficient to discredit direct testimony of the complainant who has received two fire-arm injuries.
' Learned counsel appearing for State adopted the arguments of learned counsel for complainant and added that by placing the petitioner in Column No,2, the police has expressed its opinion and this Court is not bound to follow ipsi dixit of the police.
6. No doubt that this Court has held in 1998 PCr.LJ page 752 that mere placing in Column No,2 of challan would not automatically entitle a person to be released on bail but facts of each case particularly in criminal cases are always different. In the cited judgment, the petitioner therein was placed in Column No,2 on the basis of oral statement of the witnesses but this Court having observed that such witnesses were closely related to the petitioner and also because some of such witnesses who gave different version then the complainant of that case were not natural witnesses of the scene of that crime as they were residents of other villages. In the cited judgment, the main point was that the witnesses who have sworn affidavits in favour of the petitioner have later on resiled and have disowned having made statement in favour of the petitioner.
7. In this case on application of the accused/petitioner not only the Investigating Officer but also the superior Police Officers have placed name of the petitioner in Column No,2 on the basis of statements of as many as thirteen witnesses. Such witnesses have given their statements under section 161, Cr.P.C. And have also sworn affidavits duly attested by the Notary Public/Oath Commissioner with their respective National Identity Cards. They have not so far resiled from their depositions. These are two sets of witnesses, one---Shopkeepers etc. Of Adda Tajazai where the occurrence took place and they have given a different version of the occurrence, whereas the second group of the witnesses is who are said to have accompanied the petitioner from the Court of Judge Special Court, Lakki Marwat to Punjab for hunting.
8. Once a person has been placed in Column No,2, then under the law option is left with the trial Court whether or not to issue process against him and whether or not to prosecute him. If in case a person is placed in Column No,2 is ultimately not summoned for trial by the trial Court, keeping him in jail from the date he is placed in Column No,2 until the date of commencement of trial would be curtailing the liberty of a citizen who has been found not guilty by the police. As for contentions of learned counsel for complainant and State are concerned, any observation muchless finding on the nature of material collected by the Investigating Agency in favour of the petitioner, I will rather refrain because it is the prerogative of the trial Court whether to take cognizance or not.
In view of the above facts and circumstances, a case is made out for grant of bail. The application of Inamullah Khan petitioner is, therefore, allowed and he shall be released on bail subject to his furnishing bail bond in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of Judge Special Court Lakki Marwat.