BASHIR AHMAD vs MUHAMMAD YUNUS and others

ORDER

' Bashir Ahmad, petitioner, the complainant in murder case (F.I.R. No,15, dated 1-2-1989, Police Station Renala Khurd) has moved this petition praying that bail granted to Muhammad Yunus, accused/respondent, vide order, dated 7-12-1989, by Sessions Judge, Okara, may be cancelled.

2. According to the prosecution, Muhammad Yunus with three others, in furtherance of their common intention injured and killed Jaffer Hussain (deceased) on 31-1-1989 because Mst. Haj(a, fiancee of the deceased, had been married to him. The respondent allegedly inflicted three simple injuries with a stick on calf, elbow and band of the deceased. He was arrested on 11-2-1989. During investigations, th6 local police vide Zimni No,20, dated 28-2-1989, found respondent's participation as doubtful, while Deputy Superintendent of Police Crimes Branch declared him innocent vide Zimni No,37, dated 17-10-1989. Learned Sessions Judge, therefore, allowed hail to the respondent vide order, dated 7-12-1989. Feeling aggrieved thereby the complainant has moved instant petition for cancelling respondent's bail.

3. I have heard learned counsel for the petitioner, for the State and also for the respondent and perused the record as well.

4. Learned counsel appearing on behalf of the petitioner submits that Deputy Superintendent of Police, Depalpur did not agree with the findings of the local police qua the respondent and likewise Inspector-General of Police (Crimes) disagreed with the findings of Deputy Superintendent of Police Crimes declaring the respondent as innocent, and furthermore findings of the local police and the D.S.P., Crimes were not supported by the material on record, therefore, the respondent was not entitled to be released on bail on the basis of the findings of police investigators particularly because the case had been fixed for trial prior to the day of granting of hail and as such the principle laid down in Muhammad Ismail v. Muhathmad Rafique and others PLD 1989 SC 585 was violated. Replying, learned counsel for the accused/respondent submits that the findings of the Investigating Officer declaring, that participation of the respondent in the crime was doubtful, was based on good and sound material, that is the respondent immediately after his arrest on 11-2- 1989 took up the plea of 'alibi' which was supported by 11 persons who appeared during investigation on 16-2-1989, then by 35 persons including an Advocate who appeared on 28-2-1989, again by 18 persons who appeared before Investigating Officer on 1-5-1989, and finally 21 persons had appeared on 9-5-1989 in this regard. He further stated that now the case is fixed for evidence on 11-3-1990, therefore, to avoid prejudice to the case of the respondent his bail should not be cancelled in view of the dictum laid down in Muhammad Ismairs.Case.(supra). Learned counsel for the petitioner replied that the plea of alibi raised by the respondent was afterthought inasmuch as Muhammad Amir to whose place the respondent had allegedly gone for realising price of an ox had appeared on 20-7-1989 before the Investigating Officer about 2 months after the occurrence and that the other witnesses who talked of innocence of the respondent do not belong to the locality where the occurrence had taken place, therefore, disagreement expressed by D.S.P. Crimes and Inspector-General of Police (Crimes), superior Police Officers, must be given more weight than the opinion expressed by their subordinates and consequently respondent's bail may be cancelled.

5. I have carefully considered the facts and circumstances of the case in the light of arguments addressed by learned counsel for the parties and the case-law cited at the Bar. It would appear from the above narration that many persons appeared to prove the innocence ,of the respondent during the police investigation. It is true that some of the Police Officers having acted upon that material found the case against the respondent as doubtful whereas the others disagreed with these findings. But the fact remains that the opinion expressed by two Investigating Officers in favor of the respondent is based on some material. The very fact that two Police Officers have held the respondent as innocent while the other two held him guilty itself created a situation which should be resolved in favour of the respondent for the reason that it cannot be said that finding of innocence of the respondent is against the record. Needless to say that at bail stage only tentative assessm ent of evidence collected by investigating agency I could be made, and task of real evaluation of evidence rests with the trial Court.

6. Learned Sessions Judge considered the respondent's case as covered by subsection (2) of section 497, Cr.P.C., and found him entitled to bail as of right, although the case was fixed for trial on 13-1-1990. Learned Sessions Judge, in my view, had rightly understood and applied the principle, laid down, in Muhammad Ismail's case (supra), by the Supreme Court of Pakistani The impugned order does not, therefore, call for interference. It is, however, made clear that whatever has been said or observed in this order shall not influence the mind of the learned trial Court, rather it shall decide the case by making its own assessment of the evidence on record. The petition is dismissed.