ZAFAR Versus THE STATE

Petitioner Zafar has moved this petition for bail after arrest under section 497/498, Cr.P.C. in a case registered against him under section 302/307/148/149, P.P.C. at Police Station, Sillanwali, District Sargodha, vide F.I.R. 56, dated 18‑2‑1988.

2. Learned counsel has contended that the petitioner is, innocent inasmuch as no injury has been attributed to him. The learned counsel states that the only allegation against the petitioner is that he fired, which hit the tank of the car. It is next forcefully submitted by the learned counsel that the petitioner, after thorough and intensive investigation conducted by the Investigating Officer, has been found innocent and that he has been placed in column No.2 of the challan. Learned counsel stated that the prosecution has wholly failed to connect the petitioner with the commission of the crime. The Investigating Officer is present with record of the case. He has made a candid statement that if the petitioner is admitted to bail he would have no objection. Similarly the learned State counsel has not at all opposed the grant of bail to the petitioner on the basis of .the investigation under which the petitioner has been declared innocent. It may be noted that on 7‑5‑1988, I heard counsel for the petitioner as well as the State counsel and I verbally announced the order admitting the petitioner to bail. However, later on Mr. Maqbool Elahi Malik, the learned counsel for the complainant appeared in Court with the power of attorney and requested that‑he may be allowed to address arguments in the case. On his request the case was adjourned to 8‑5‑1988. His arguments were partly, heard and the case was adjourned to 9‑5‑1988. On this day too the learned counsel was heard. Today again. I have heard the learned counsel for the parties at length. The learned counsel for the complainant submitted that on the facts and circumstances of the case there is sufficient evidence to connect the petitioner with the commission of the crime inasmuch as he states that the petitioner fired at the victim and luckily the fire did not hit the deceased but the same hit the tank of the car. He submitted that from the reading of the F.I.R. as well as the statements made under section 161, Cr.P.C. it is clear that there is sufficient evidence against the petitioner. Learned counsel for the complainant placed heavy reliance on the rule laid down in the following cases:‑

Iqbal Rehman v. The State PLD 1974 SC 83; Kajal Khan v. The State 1983 S C M R 130; Farooq Nawaz and others v. The State and another.1986 S C M R 506; Rashid Khan and another v. The State and others 1986 S C M R 933; Aitbar Khan and another v. The State 1977 P Cr. L J 114; Peeral and 2 others v. The State 1979 P Cr. L J 101; Abdul Maalik v. The State 1985 P Cr. L J 1157; Javaid Iqbal and others v. The State 1986 P Cr L J 738; Khizar Hayat v. The State PLD 1988 Lah. 247 and Nazar Muhammad v. The State and another P L D 1978 S C 236.

On the basis of these authorities the learned counsel submitted that the opinion of the Investigating Officer placing the petitioner in column No.2 is not binding upon the Court and the Court can come to its own independent finding after perusing the relevant record. Mr Ijaz Hussain for the petitioner has contended that the case of the petitioner was heard on merits and no one appeared on behalf of the complainant and that after the order was announced, the complainant had no locus standi to come and oppose the grant of bail to the petitioner. It is next submitted that the law cited at the bar by the learned counsel for the complainant is not at all applicable to the facts and circumstances of the case and each case has to be decided on its own peculiar circumstances. He submitted that the allegation against the petitioner is that he fired, which hit the tank of the car and admittedly no injury whatsoever was caused to the deceased or to any of the witnesses in the case. This being so learned counsel submitted that the case of the petitioner is distinguishable from the cases referred to by the learned counsel for the complainant. Learned counsel submitted that the latest view of the Supreme Court as well as High Courts on the subject is that where the accused has been found innocent and no overt act has been attributed to him, he is entitled to be released on bail. Heavy reliance has been placed on Muhammad Khan and others v. The State and others 1988 S C M R 382, Peeral and 2 others v. The State 1979 P Cr. L J 101 and Aitbar Khan and another v. The State 1977 P Cr. L J 114.

3. I have heard the learned counsel for the parties at considerable length. Without expressing any opinion on the merits of the case lest it may prejudice the case of either party, it is clear from record that the petitioner was declared innocent by the Investigating Agency. The Investigating Officer as well as the State counsel have made statements in open Court that they have no objection in the release of petitioner on bail on the ground that there is no sufficient evidence available to connect him with the commission of the crime. I have myself seen the available record. The only allegation against the petitioner is that he fired, which hit the tank of the car. The admitted position in the case is that the petitioner did not cause any injury to the deceased or to any witness in the case. This being so, the Investigating Agency, after thorough probe in the matter, has come to the conclusion that the petitioner is innocent. The upshot of the above discussion is that there is no substance in the contentions of the learned counsel for the complainant, which are repelled. Accordingly the petitioner is admitted to bail in the sum of Rs.80,000 (Rupees eighty thousand) with one surety in the like amount to the satisfaction of Assistant Commissioner, Sargodha.

H.B.T./Z‑71/L Bail granted.