CH. MUHAMMAD YOUSAF SINDHU Versus THE STATE

ORDER

1. On 19‑12‑1989 at 6‑15 p.m. a case under section 307/34 PPC was registered at Police Station Satellite Town, Gujranwala on the statement of Tahir Rasool complainant against Muhammad Yusuf Sindhu petitioner and two unknown persons.

2. The allegation against the petitioner is that on 19‑12‑1989 at 8‑30 a.m. he alongwith his two unknown companions (whose description was given in the FIR) while armed with pistols had launched a murderous assault on his brother Muhammad Akram and had caused serious injuries to him. The assailants ran away after the commission of the crime. The motive for the occurrence was stated to be civil litigation between the two brothers over some property.

3. Apprehending his arrest the petitioner moved an application before the learned Sessions Court Gujranwala for his pre‑arrest bail. His application was dismissed on 14‑1‑1990. He has now come to this Court for his bail before arrest.

4. I have heard the parties' counsel and have also gone through the record.

5. Perusal of the record has revealed that initially the investigation was carried out by S.I. Malik Yusuf who found the petitioner to be innocent. Subsequently Mian Yasin Inspector and Zaki Shah DSP/SDPO Gujranwala also confirmed the findings of the Investigating Officer. Later on the investigation was transferred to CIA Gujranwala on an application by the complainant party. Malik Habib DSP/CIA Gujranwala conducted the investigation and has come to the conclusion that the petitioner is innocent.

6. Admittedly, there is an inordinate delay of about 9‑3/4 hours in the lodging of the F.I.R. Tahir Rasool complainant who is the brother‑in‑law of the injured, has tried to explain the said delay in the FIR by stating:‑‑

7. The occurrence is stated to have been witnessed by Tahir Rasool complainant and Muhammad Akram son of Ghulani Muhammad, besides Muhammad Akram, the injured PW. In their statements before the police they have named the petitioner and have attributed injuries to him.

8. Learned counsel for the petitioner has maintained that actually neither Tahir Rasool nor Muhammad Akram son of Ghulam Muhammad had witnessed the occurrence and that a false story had been concocted subsequently after long deliberation. He has referred to the material collected by the investigating officers to the effect that the injured PW was removed from the place of occurrence to the hospital by the students of the nearby college who donated blood to him and have sworn affidavits to the effect that the, petitioner was nowhere near the place of occurrence at the relevant time. They have also deposed that at the time of occurrence no relative of the injured was present near him. The investigating agencies have also collected evidence to the effect that at the relevant time the petitioner, who is a councilor, was busy in his office with another councillor namely Muhammad Noman who has also sworn an affidavit to this effect.

9. Admittedly the police had visited the hospital prior to the registration of the case and even at that time neither the complainant nor the other eye‑witness Muhammad Akram son of Ghulam Muhammad was present there. In this view of the matter the learned counsel for the petitioner asserted that the prosecution version as contained in the F.I.R. was totally false and the petitioner had been falsely implicated due to previous enmity. It is an admitted fact that civil litigation is pending between the petitioner and the injured PW. Learned counsel further maintained that the injured PW was prosecuted in a few criminal cases due to which he had enmity with other persons also and possibility could not be ruled out that he was attacked by his said enemies.

10. On the other hand learned counsel for the State and the complainant maintained that as the petitioner had been named in the FIR and the prosecution version was supported by three eye‑witnesses there were sufficient grounds to believe that he was guilty of thc. offence charged against him and therefore, he was not entitled to the extraordinary concession of bail before arrest. Learned counsel further maintained that without the arrest of the petitioner proper investigation could not be carried out because recovery of crime weapon was yet to be effected from him and the petitioner was also to be interrogated on the question as to who were his companions. It was . submitted that grant o pre‑arreast bail in the present case would frustrate the investigation. Learned counsel have also asserted that pre‑arrest bail should not be allowed to the petitioner merely on the basis of oral evidence about his alibi. As regards the police investigation it was urged that the opinions of the police officers were not binding on the Court and the same could conveniently be brushed aside.

11. It is correct that the opinions of the investigating officers are not binding on the Courts but still they have the persuasive value. In the present case these opinions being adverse to the prosecution would be a relevant consideration for determination of application for grant of bail. As ‑such the same cannot be brushed aside so casually.

12. There are a number of reported cases in which pre‑arrest bail was allowed to the accused persons on the 'basis of oral evidence about their alibi. A couple of them are Chaudhary Muhammad Shari v. Chaudhary Muhammad Anwar Samma (1975 SCMR 219) and Munawar Ahmad v. The State (1984 PCr.LJ 767).

13. Enmity between the parties is admitted. More than hundred persons have through their affidavits and statements before the investigating officers have C supported the petitioner's plea of alibi. Four college students namely Tahir Nadeem, Irfan, Asim Altaf and Amin Ahsan have also sworn affidavits to the effect that the occurrence had taken place in their presence and Muhammad Yusuf Sindhu petitioner was not present there. They have also deposed that they had removed the injured to the hospital and had donated blood to him and that no relative of the injured was present at the spot. This evidence coupled with the fact that there is an inordinate delay of 9‑3/4 hours in the lodging of the FIR and two different investigating agencies have found the petitioner to be innocent. I am D of the view that the present case falls within the ambit of subsection (2) of section 497, Cr.P.C. namely a case requiring further inquiry. The petitioner, therefore, is entitled to bail before arrest. His interim bail is confirmed.

N.H.Q./M,1928/L

Interim bail confirmed