SHAHEEN ULLAH vs ALLAH NOOR and another

ORDER

RAJA SHAHID MEHMOOD ABBASI, J.---By this order, I propose to dispose of Criminal Misc. No, 1016- BC of 2015 which has been filed by one Shaheen Ullah for cancellation of bail granted to the respondent No,1 Allah Noor by learned Additional Sessions Judge, Rawalpindi in case FIR No, 72 of 2014 dated 01-02-2014 registered at Police Station Banni, Rawalpindi, under Sections 302/34, P.P.C.

2. The brief facts of the case are that crime report No, 72 was lodged by one Shaheen Ullah stated therein that the respondent No,1 along with his co-accused, while armed with pistol attacked upon Nadir Khan, (deceased), father of the complainant which landed on different parts of his body. The role attributed to the present respondent that he made two fire shots with his pistol which hit father of the complainant on arm and leg, subsequently said Nadir Khan died due to the injuries caused by the accused.

3. Learned counsel for the petitioner submits that sufficient material was available on record to prove that respondent No,1 was fully involved in a prompt lodged FIR with the responsibility of causing repeated injuries on the person of the deceased. Further maintained that order granting bail to the respondent is patently illegal and erroneous, is liable to be cancelled. Further maintained that the learned ASJ, Rawalpindi failed to appreciate that offences, allegedly, committed by the respondent fall within the prohibitory clause; that respondent No,1 is misusing the concession of bail as he is intimidating the complainant and the witnesses and threatening them with dire consequences. In support of his contention he has produced crime Report No, 712 dated 22-09-2014, Police Station Norang and submitted that the first cousin of the petitioner and nephew of the deceased has been assassinated by the respondent No,1 who is principal accused in the said case; that ipse dixit of the police is not binding on the Courts but the learned Additional Sessions Judge, Rawalpindi only on the flimsy and cloudy opinion of the police enlarged the respondent on bail and failed to appreciate that ample evidence was available against the respondent, who was involved in the case of a capital punishment.

4. On the other hand, learned DDPP submits that according to the police investigation, the respondent No,1 did not participate in the commission of crime and was not present at the place of occurrence.

5. Heard. Record perused.

6. Record reveals that though respondent No,1 is nominated in the crime report with specific allegation of causing injuries on arm and leg of the deceased but the version of the complainant was found false to the extent of respondent No,

1. He has been allowed bail by the trial Court with the following observations:- "During the course of investigation, Jahanzeb, eyewitness of the occurrence, appeared before the Investigation Officer and did not implicate the petitioner/accused while Nadeem, the other eye-witness of the occurrence, has even denied his presence at the place of occurrence. The investigation officer has also reached to the conclusion that petitioner/accused was not present at the place of occurrence. Although, ipse dixit of police is not bind upon the Court but keeping in view the fact that the injuries attributed to the petitioner/accused were not suffered by the deceased at the vital part of his body and the fact that the eye-witnesses even at the initial stage in their statements under Section 161, Cr.P.C. Did not attribute any specific firearm injury to the petitioner/accused an inference is created in favour of the petitioner/accused, after the opinion of the Investigation Officer making his case as one of that of further inquiry "

7. The perusal of said order passed by learned Additional Sessions Judge reveals that prima facie the case of the respondent falls within the ambit of further inquiry and sound reasons have been furnished by the Court below. So far as the contentions raised by the learned counsel that ipse dixit of police is not binding on the Court, I am mindful of the preposition that although the Court is not bound to the ipse dixit of police yet the same was relevant at bail stage especially when findings is with regard to the innocence of the accused. Reliance can safely be placed on the dictum laid down by Hon'ble Supreme Court in"Doctor Muhammad Aslam v. The State" (1993 SCM R 2288), "Manzoor and others v. The State" (PLD 1972 SC 81) and "Bashir Ahmad v. The State" (2005 PCr.L.1 967). The relevant extract from the judgment is reproduced as under:- "according to the investigation, although the petitioner was present at the spot, yet he has not committed overact and he was found innocent by the police.

Although, this court is not bound to the ipse dixit of police yet the same is relevant at bail stage especially when finding is with regard to the innocence of the petitioner"

8. So far as the contentions of the learned counsel for the petitioner that respondent No,1 has misused the concession of bail is concerned, I find, no force in the arguments of learned counsel as he could not prove that the said criminal case has any nexus with the present case or the complainant of said crime report has any relation with the deceased Nadir Khan. Therefore, it cannot be said with certainty that the respondent is misusing the concession of bail as in the said crime report neither the parentage of Allah Noor is given nor the learned counsel could place on record the result of the case. The bail was allowed to the respondent on ground that prima facie the case of the respondent falls within the ambit of further inquiry. If an accused person is enlarged on bail under Section 497(2), Cr.P.C. Then ordinarily the Court should be very slow to interfere with that order on the ground of misusing the concession of bail. It is settled principle of law that reasons for grant of bail and its cancellation are totally different. The Court can only exercise its powers under Section 497(5) of Cr.P.C. Where reasons for grant of bail are artificial, fanciful or arbitrary, but learned counsel for the petitioner has failed to point out any such reason or that the prosecution has collected some fresh facts or material which might lead towards the guilt of respondent. Reliance can safely be placed on "Nasir Khan v. Waseel Gull and another" (2011 SCMR 707) and "Munir Ahmed Saul v. Muhammad Javed and 6 others" (2007 PCr.LJ 108). Moreover, bail has been granted to respondent for cogent and valid reasons which are not open to legitimate exception.

8. In view of above, finding no merit in this petition is hereby dismissed.