' Muhammad Nadeem alias Kaka petitioner was arrested on the 7th February, 1999 and is in jail eversince awaiting his trial which has not yet commenced, although according to the learned counsel the challan has been submitted, in pursuance of a case registered against Muhammad Nadeem alias Kaka petitioner and 2 others vide F.I.R. No,697, dated the 9th December, 1998 under sections 302/324/34 of the Pakistan Penal Code at Police Station Civil Lines, Gujranwala, regarding an occurrence which allegedly took place on the 9th December, 1998 at 5 p.m. In Street No,7, Mohallah Noorpura, which is at a distance of 1 Km. From the Police Station Civil Lines, District Gujranwala, where the First Information Report was lodged on the same day at 8 p.m. By Nazir Hussain father of Zulfiqar deceased who died on account of firing of co-accused Ihsan.
' The allegation against Muhammad Nadeem alias Kaka petitioner is, that while armed with a pistol he fired at Umer Farooq son of the ' complainant Nazir Hussain which hit him on the right foot and thereafter he fired at his own companion Naveed alias Needo co-accused of Muhammad Nadeem petitioner, who died in the same occurrence.
2. There is a counter-version of Babar Javed Dar father of Naveed alias Needo who died in the same occurrence, to the effect that his son Naveed alias Needb was actually shot by Ijaz brother of Zulfiqar deceased and not by Muhammad Nadeem alias Kaka petitioner. Babar Javed father of Naveed alias Needo and his wife Mst. Khalida Nasreen, mother of Naveed alias Needo have also sworn affidavits to the effect that their son was shot by Ijaz brother of Zulfiqar deceased and not by Muhammad Nadeem petitioner.
3. Learned counsel for the petitioner contends that this is a fit case for the grant of bail because there is a delay of 3 hours in lodging the F.I.R. When the police station was only 1 Km. Away from the place of occurrence. No recovery has been made from Muhammad Nadeem petitioner. That three different Investigating Officers i.e, Superintendent of Police, City Gujranwala; the Deputy Superintendent of Police, Gujranwala and the Deputy Superintendent of Police, Gujranwala Range Crimes unanimously opined that Muhammad Nadeem alias Kaka petitioner was empty-handed at the time of occurrence and, therefore, according to the learned counsel for the petitioner this is a case of further inquiry particularly because there is a clear counter-version and in this context learned counsel for the petitioner relies upon the case of Shueeb Mahmood Butt v. State 1996 SCM R 1845. Finally the learned counsel for the petitioner submits that only allegation against the petitioner is that he fired at Umer Farooq which hit him on a non-vital part of his body.
4. Learned counsel for the State vehemently opposed the grant of bail and submits that the petitioner is named in the First Information Report and the offence committed by the petitioner falls within prohibition contained in subsection (1) of section 497 of Code of Criminal Procedure.
5. Admittedly, this is a case of counter-version. One version has been given by the prosecution wherein the allegation against Muhammad Nadeem petitioner is that he fired at Umer Farooq and caused injury to his right foot and thereafter, he fired his own companion namely Naveed alias Needo which is contradicted by Babar Javed Dar father of Naveed alias Needo, which out of the two versions is near the truth will have to be seen in juxtaposition, by the trial Court after recording evidence. Be that as it may, it is admitted that 3 successive Police Officers have unanimously come to the opinion that although Muhammad Nadeem alias Kaka was present at the time of occurrence yet he was empty-handed. Although it is true that opinion of the police is not binding upon the Court yet it is actually true that in a case where 3 Gazetted Police Officers have repeatedly shown that Muhammad Nadeem alias Kaka was empty-handed, the benefit of that is to be given to him even at the stage of grant or refusal of bail.
6. From the attending facts and circumstances of this case it can be reasonably said that reasonable grounds within the meaning of subsection (1) of section 497 of the Code of Criminal Procedure for believing that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, prima facie do not seem to exist. However, the case against the petitioner may be a matter of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure which entitles him to the grant of bail.
7. Resultantly, this petition is accepted and the petitioner is granted bail provided he furnishes bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the trial Court.