ABID ALI alias ALI vs THE STATE

ORDER

' CH. IJAZ AHMED, J.---Necessary facts out of which the present petition arises are that petitioner is involved in a case F.I.R. No,719 which was registered at Police Station Waris Khan on 27-9-2009 Rawalpindi under sections 302/148/149, P.P.C. According to the contents of the F.I.R. The occurrence took place on 27-9-2009 at 2-35 p.m. Nawaz Khan had given written complaint to Wali Muhammad S.I. Of the said Police Station who forwarded the same to the police station. The formal F.I.R. Was recorded on the basis of the written complaint of the complainant. The contents of the F.I.R. Reveal that on the day of occurrence the brother of complainant, namely, Sadaqat Khan alias Kala Khan, Muhammad Shafique alias Sheik Pappu and Mushtaq Khan while sitting in a car were going to attend a marriage ceremony. On the way Ch. Shaukat, Ch. Arshad Imran, Ch. Allah Ditta and Ch. Shaukat's nephew Mithu all armed with firearms along with three unknown persons who could be identified if brought before them also armed' with deadly weapons reached near the said car. Ch. Shaukat started firing on complainant's brother Sadaqat Khan while Ch. Arshad Imran fired at Muhammad Shafique alias Sheikh Pappu and Mithu made indiscriminate firing at Mushtaq Khan along with their other accused. Due to the firing all the above three persons died at the spot. The complainant did not mention the name of the petitioner in the written complaint on the basis of which the aforesaid F.I.R. Was lodged. The complainant Nawaz Khan submitted application to the S.H.O. To include the name of the petitioner and his two co- accused on 28-9-2009. The name of the petitioner was included in the said F.I.R. Through supplementary statement of the complainant.

The petitioner was arrested in the said case on 13-11-2009. Petitioner filed post-arrest bail under section 497, Cr.P.C. In the Court of Additional Sessions Judge, Rawalpindi, who dismissed the same vide order dated 25-1-2010. The petitioner being aggrieved filed Criminal Miscellaneous No, 228-B of 2010 in the Lahore High Court Rawalpindi Bench which was also dismissed by the learned High Court vide impugned order dated 2-3-2010. Hence the present petition.

2. Learned counsel of the petitioner submits that name of the petitioner was not mentioned in the F.I.R. Which was got recorded by the .Complainant Nawaz Khan real brother of the deceased Sadaqat Khan. The name of the petitioner was subsequently got recorded in the said case through supplementary statement of the complainant. Local Investigating Agency had declared the petitioner innocent after thorough investigation. The petitioner was again declared innocent in the second inquiry conducted on the request of the complainant party. The name of the petitioner was placed in column No, 2 of the challan submitted by the Investigating Officer under section 173, Cr.P.C. Recovery of weapon of offence was also not effected from him. The police recorded the statements of independent witnesses of the area as well as the statement of one Amar Mustafa injured witness who in their statements did not implicate the petitioner and also did not state that he had participated in the occurrence in question.

3. The learned counsel for the complainant states that petitioner was named as one of the accused as depicted from the statements of the P.Ws. Which were got recorded by the Investigating Officer who have fully supported the statement of the complainant. He further urges that Amar Mustafa, P.W., has not been shown as witness by the police while submitting report under section 173, Cr.P.C. Coupled with the fact that no medico legal report was available on record qua the injury sustained by said Amar Mustafa at the hands of the police. The challan has already been submitted in the court. The trial court has already framed charge on 29-2-2010 and the case is fixed for recording of the evidence of the prosecution. The learned High Court has refused to grant bail to the petitioner and this Court generally does not interfere qua refusing or granting bail by the High court while exercising power under Article 185(3) of the Constitution. He further urges that it is in the interest of justice that' petition may be dismissed with the direction to the trial court to conclude the trial within a reasonable time as expeditiously as directed by this Court.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the basic facts of the case in chronological order to resolve the controversy between the parties:--

(a) Date of occurrence : 27-9-2009.

(b) Time of occurrence : 2-35 p.m.

(c) Written complaint was filed by the complainant to Wali Muhammad S.I. On 27-9-2009.

(d) Formal F.I.R. Was lodged on the basis of the written report under section 302/148/149, P.P.C.

(e) The name of the petitioner is not mentioned in the written complaint and F.I.R.

(f) Complainant submitted an application before the S .H.O. On 28-9-2009 with the prayer to add the name of the petitioner along with his other two co-accused namely Vicky and Khalid.

(g) Local police after investigation has found the petitioner innocent.

(h) The petitioner was also declared innocent in the second investigation conducted by the regional branch.

(i) Challan was submitted wherein the name of the petitioner was mentioned in column No,2.

(j) Challan has already been submitted.

' In case the aforesaid facts are put in juxtaposition then the case of the petitioner falls under the phrase further inquiry in terms of section 497(2), Cr.P.C. It is settled principle of law that bail cannot be withheld as punishment. There are various pronouncements in support of this principle. See Ch. Abdul Malik v. The State (PLD 1968 SC 349) and Manzoor and 4 others v. The State (PLD 1972 SC 81). It is also settled principle of law that ipse dixit of the police is not binding on the court. This proposition is also supported by Manzoor's case (supra). It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution as law laid down by this Court in Amir v. The State (PLD 1972 SC 277). It is an admitted fact that name of the petitioner is not mentioned in the F.I.R. But his name was included in the list of accused in supplementary statement. There is no explanation available in this regard, therefore, the case of the petitioner falls under the category of further inquiry, See Tahir Abbas v. The State (2003 SCM R 426). Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497, Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse a right. See Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It is also settled principle of law that observations made by superior courts dealing with the bail matter are always tentative in nature.

5. In view of what has been discussed above the petition is converted into appeal and allowed and the petitioner is granted bail in the sum of Rs, 2,00,000 (rupees two lac only) with two sureties with PR bond in the like amount to the satisfaction of the trial court.

6. These are the reasons of our short order of even date.