PUNHOON JAFFERY vs THE STATE

1. ORDER IMAM BUX BALOCH, J.---Heard Mr. Rafique Ahmed Abro, learned counsel for the applicant, Mr. Altaf Hussain Surahyo, learned State Counsel. It is contended by the learned counsel for the applicant that during investigation the Investigating Officer found the applicant innocent and kept his name in Column No.II of the challan, but the learned Magistrate arrayed him as accused and remanded him to custody.

2. Mr. Altaf Hussain Surahyo, learned State counsel is unable to controvert such submission.

3. Admittedly, Investigating Officer of the case during investigation found the applicant as innocent and kept his name in Column No.II of challan due to insufficient evidence. In such circumstances the Hon'ble Supreme Court is of the view that such cases fall under the purview of further enquiry.

4. The Hon'ble Supreme Court in case of Muhammad Ilyas v. Ijaz Ahmed Butt and another (1992 SCM R 1857), has observed as under:-- "We propose to dispose of this petition on the short ground that respondent No.1 Ijaz Ahmed Butt is not an accused person so far as his name is not included in the challan in the column of accused persons but appears in Column No.2 of the challan because investigating agency was short of material against him. He himself on his on approached the trial Court for bail and on failure filed application in the High Court for that purpose. It appears that so far neither police has taken any steps to arrest him because for doings police has not shown that sufficient material is available against him and his name for that reason is to be taken out from Column No.2 and put in the column of accused persons who are not in custody. Similarly trial Court has not taken any steps to show that respondent No.1 Ijaz Ahmed Butt was being treated as accused person. Trial Court declined to grant bail to him on technical grounds, inter alia that report submitted under section 173, Cr.P.C. Was contradictory.

5. In the circumstances and for the facts and reasons mentioned above, no interference is warranted at this stage because prosecution does not treat respondent No.1 (Ijaz Ahmed Butt) as accused person so far. Question whether order of bail granted by the High Court was valid or not will arise only when steps are taken by the prosecution to treat Ijaz Ahmed Butt as accused person. When such steps are taken, it would be open to the complainant to approach Supreme Court questioning validity of order of bail granted by the High Court. Subject to the above observations, we refuse leave and in the result dismiss the petition."

6. The Hon'ble Supreme Court in case of Muhammad Mumtaz and 3 others v. The State (1988 SCM R 1452), has held as under:-- "In the light of the arguments advanced we agree with the learned counsel for the appellants that there are aforesaid three infirmities in the impugned orders of the learned Single Judge of the Lahore High Court, Lahore, in this case. Both the sets of the appellants in the course of the investigation had been found innocent by the police and their names have been placed in Column No. 2. In these circumstances bail should not have been refused to them on the grounds recorded by the learned Single Judge in the impugned orders."

7. In case of Rehmatullah alias Rehman's v. The State and another, the Hon'ble Supreme Court observed as under:-- "The opinions of the Investigating Officers certainly do not constitute legal evidence, but being adverse to the prosecution, they put one on an inquiry as to the veracity of the prosecution case.

8. The question of the vicarious liability of the appellant in regard to the commonness of his intention with his co-accused for firing at Bakhsha and its further extension to the result that followed, namely, the death of Mst. Fatima, will have to be determined at the trial to see if his guilt under section 302/34, P.P.C. Is established as alleged by the prosecution. In any event, it cannot be said, in the circumstances of the present case, that the learned Sessions Judge had acted arbitrarily in allowing bail to the appellant and as such the reversal of his order by the learned Single Judge appears to us to be unjustified. This appeal has consequently to be accepted. The appellant shall continue, to remain on bail as already ordered by this Court."

9. In case of Muhammad Afzal v. Nazir Ahmed and others (1984 SCM R 429), the Hon'ble Supreme Court observed as under:- "The relevancy to the question of bail of the opinion of the investigating agency in regard to the complicity of an accused person will depend on the soundness of the material upon which it 'is based. If the investigation brings to light facts which may furnish prima facie a reasonable ground for believing that an accused though named in the F.I.R is not guilty, the opinion of the Investigating Officer based on such facts will be relevant. This Court had considered such opinion to be relevant in Rehmatullah v. The State (1), Karain Din v. Muhammad Sharif (2) and Muhammad Rafiq v. Abdur Rehman's (3). In the present case the opinion of the police officer is based on the statements recorded of some respectable persons, such as the Imam of the local mosque and the Vice- Chairman of the Union Council. The High Court could, therefore, take into consideration such opinion. We do not consider that this is a fit case. For interference. The petition is dismissed. "

10. While relying on the cases (supra), I am of the opinion that the applicant is entitled for concession of bail. Consequently, this bail application is allowed. The applicant is directed to be released on bail subject to furnishing solvent surety in, the sum of Rs.200,000 (Two hundred thousands) and P.R bond in the like amount to satisfaction of trial Court..