FAQIR MUHAMMAD Versus THE STATE

1. As directed by my order dated 1‑8‑1977, the Investigating Officer has appeared. He has stated that the S. H. O., Police Station, Chak Jhumra. investigated the case and found the petitioner to be innocent. However, the P. D. S. P. has not agreed with the investigation and has requested the Investigating Agency that the mater may be taken up with the higher authorities in P. A. F. It is contended by the learned counsel for the petitioner that P. D. S. F. is not an Investigating Agency. Therefore, for purposes of grant or refusal of bail, his opinion is not material The learned counsel further contended that it cannot be said that there is no basis for the finding of the Investigating Officer since he has given his report after examining eight witnesses including Squadron Leader Incharge of the P. A. F.

2. Learned counsel for the State as well as the Police Officer have stated before me that so far as there is no contra finding, that may supersede the result of the investigation made by the S. H. O. Hayat Ullah, S. I. The learned counsel for the complainant has argued that fatal blow in this case has been attributed to the petitioner and moreover the evidence of alibi is not satisfactory. In this connection, he is supported by a letter written by the P. D. S. P. Learned counsel has relied upon Gal Ahmad v. Masam Khan etc. (1975 S C M R 27) The ratio decidendi of the above case appears to be that the rule laid down in Rehmat Ullah v. State (P L D 1960 S C 708) is applicable only in a case wherein the accused has been held vicariously liable and the Investigating Agency had found the accused to be innocent. The learned counsel has argued that the later case has no application in the present for the reason that hers the petitioner is being held directly liable for having inflicted fatal blow and is supported by the testi mony of four eye‑witnesses. Under these circumstances, it is argued that the opinion of the Investigating Officer is irrelevant. The incident in this case took place on 5‑4‑1977 in the early afternoon at Chak No. 201, Tehsil and District Lyallpur. It is claimed by the petitioner that he was at that time on duty at Risalewala a P. A. F. base. According to the police officer appearing in the case, that base is 15 to 16 miles from the place of the occurrence and is connected by pucca road. The learned counsel for the petitioner relied upon the evidence of alibi for grant of tail. For that purpose, he has referred to two oases of the Supreme Court, namely. Muhammad Hussain v. Muhammad Anwar Ahmad (1975 S C M R 151) and tile case of Muhammad Shafi v. Muhammad Anwar Samma (1975 S C M R 219). In the former case, the facts were that the petitioner along with 10 others had participated in the murderous assault resulting in the death of one person and injuries to 5 others. His bail application was supported by affidavits of 20 Advocates. The second coat was the case of a politician who raised the plea of political victimization and his alibi was supported by affidavits of 24 members of the Provincial Assembly. In ground No. 1, the petitioner has also raised the plea of alibi, which is supported by the statement of the Squadron Leader, Officer Commanding, P. A. F. Risalewala vouchsafing that the petitioner was on 24 hours duty at the base from 0715 on 5‑4‑1977 till 0715 hours on 6‑4‑1977. The statement of this Officer was also recorded by the Investigating Officer in support of his alibi. It is further contended that the Investigating Officer has also recorded the statements of other persons posted at the place as well as the present petitioner and he was arrested after one month and 23 days and no recovery has been made. The petitioner cannot be enlarged on bail ore the ground of finding of the investigating Officer alone. As has been pointed out, ante, that snob opinions are material only in case of vicarious liability. The plea of alibi of the petitioner is not supported by any affidavit on the record. There is only a certificate issued by the Squadron Leader, which shows the hours of duty rather than an actual affirmation supported by as affidavit that the petitioner was in fact present at the base. As mentioned earlier, the petitioner is alleged to be prima donna of the crime. Fatal injury to the deceased, Nawab; has been attributed to him. The incident is also supported by eye‑witnesses i.e. Bashir Ahmad, complainant, Fariad Ali, Mst. Rani and Amir Ahmad.

3. Under the circumstance, it is net a fit case for grant of bail. The petition is dismissed.

4. Petition dismissed.