' This order disposes of application for enlargement on bail of Sarwar Khan and Ajab Khan accused in the case for the offence of murder under section 302/34, P. P. C. The crime was registered at Police Station, Rawalpindi Cantonment on 8-3-1977 at the instance of Ali Akbar father of Abdul Hameed deceased. The parties are residents of same village. The report alleges that the petitioners and Nazak accused real brothers inter se visited the house of the complainant, called the deceased and took him alongwith them. The complainant, Mehrban, Rafiq and All Akbar got suspicious and followed them. The accused dealt injuries to the deceased with knives in their hands, at a place close to the house of Fateh Muhammad.
' The report further alleges that the accused had a suspicion that the deceased was carrying on with their sister named Ma. Bibi. The deceased was taken to the hospital reaching there at 10-45 p m. For medical aid. However, he expired same night. Investigation into the case was held by a number of Police Officers including Sultan Muhammad Asghar Superintendent, Police, Rawalpindi.
Mr. Abdul Gbafoor Baloch Deputy Superintendent, Police had recorded a categorical opinion that the petitioners were innocent. The fact of the matter is that the deceased was killed by Nazak alone. The petitioners moved learned Sessions Judge, Rawalpindi for grant of bail. The contention that in view of report of Mr. Baloch, the case against the petitioners was of further enquiry was turned down by learned Sessions Judge.
2. Lengthy arguments which trenched upon merits of the case were addressed on the side of the petitioners. It was argued that the report was lodged after seven hours of the incident which shows that the time intervening the occurrence and the report was utilized for consultations and embellishments. The deceased had seven injuries on him-six incised wounds and a lacerated wound-which also shows that the number of assailants had been exaggerated. The deceased must have received a larger number of injuries if he were assaulted by three persons impelled by the motive to avenge family dishonour. The deceased must have been hacked to pieces. The witnesses cited in the first information report were closely related to the complainant.The occurrence took place in a populated area but none from the adjoining houses was cited as witness of the occurrence. The motive was false and finally, that the petitioners had been held innocent by the Investigating Officer. The case against the petitioners was that of further enquiry under subsection (2) of section 497, Cr. P. C. These arguments excepting that of effect and weight of opinion of Investigating Officer do not merit a serious notice for the simple reason that merits of the case could not be foreclosed at this stage. Subsection (1) of section 497, Cr. P. C. Lays down that in cases punishable with death/life imprisonment accused must be denied bail if there exist reasonable grounds for believing that he was guilty of the charge. The question if there were reasonable grounds for believing that the accused was guilty has to be decided on the basis of allegations in the first information report, recovery if any, and the statements of the witnesses recorded under section 161, Cr. P. C. And a provisional assessment of other data available on the file. A deeper appreciation of the merits of the case is not permissible. It was held by their Lordships of Supreme Court in Muhammad Aslam v. The State (1) that "the High Court is thus not to examine the merits of the prosecution case or plea of defence in finding whether reasonable grounds appear for believing that the accused person has been guilty. Otherwise, any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started". The principle laid down in this judgment was re-affirmed in Gulzar Hassan Shah v. Ghulam Murtaza and others (2). There are reasonable grounds for believing which should not be equated with proof, that the petitioners were guilty of the charge for the reason that allegations against them if allowed to stand unchallenged, prima facie make out an offence punishable with death.
The two cases : Umar alias Umar Hayat and another v. The State (3) and Ghulam Abbas v. Muzaffar Khan (4) relied on by learned counsel for the petitioners which do not have the least semblance with the facts of the instant case do not sustain the argument of learned counsel for the petitioners that in the circumstances, the charge against the petitioners was groundless. {{FOOT NOTE}}
(1) PLD 1967 SC 539 (2) PLD 1970 SC 335
(3) PLD 1975 Lah. 575 (4) PLD 1977 Lah. 1247 {{FOOT NOTE}}
3. This leaves with the last argument viz. Effect of the opinion of Mr. Baloch, Deputy Superintendent of Police holding the petitioners innocent. It was argued on behalf of the petitioners that in view of the report made by Mr. Baloch D. S. P., the case against the petitioners was that of further enquiry under subsection (2) of section 497, Cr. P. C. Reliance was placed on the judgment of Rehmatullah v. The State (1). It was held in that case that "the opinions of the Investigating Officers certainly do not constitute legal evidence, but being adverse to the prosecution they put one on an enquiry as to the veracity of the prosecution case." This judgment was not followed in a recent case of Gul Ahmad v. Masam Khan (2). It was held in that case that the mere fact that the C. I. A. Staff had in a subsequent investigation held the respondent innocent, would hardly constitute a valid ground for their enlargement in the circumstances of the case. The opinion of Mr. Baloch stands negatived by the report of a senior Officer Mr. Sultan Muhammad Asghar, Superintendent Police who had investigated the case finally and stated that there was no cogent evidence to support the plea of the petitioners that they were innocent. The question of their innocence be left to the decision of the Court. The opinion of Mr. Baloch had thus lost its significance on the normal weight attached to such opinions.
4. Opinion of Investigating Officer that the accused were innocent is not binding on the Court. The Court may come to a different conclusion. It was held in Dr. Sakhi Muhammad Bhutta v. Major Karam Ilahi Zia etc. (3) that it was the duty and function of the Court itself to take into consideration the entire evidence on which the prosecution is relying and then to form an opinion as to whether reasonable grounds exist as envisaged in subsection (I) of section 497, Criminal Procedure Code.
Learned Sessions Judge has observed towards the end of the order rejecting application of the petitioners that the material on record connects the accused-petitioners with the offence charged against them. They are named in the first information report, and injuries have been attributed to them. The fact that the deceased had six incised wounds on him appears to justify the counter argument that the number of assailants may not be less than three as alleged in the report.
5. In the result, the application stands rejected. Learned Sessions Judge, however, may consider the desirability of fixing the case for trial during the next three months. {{FOOT NOTE}}
(1) 1970 SCMR 299 (2) 1977 SCMR 27 {{FOOT NOTE}}