ASGHAR MASIH and another vs THE STATE

ORDER

' This is a petition for grant of post-arrest bail on behalf of Asghar Masih and Hayat who have been arrested in case F.I.R. No,121/94. Dated 26-3-1994 under section 302/148/149, P.P.C. Read with section 324 of Qisas and Diyat Ordinance.

2. The brief facts of the case are that on 24-3-1994 motor-cycle of Asghar Masih, petitioner No,1 struck against Moti Masih, brother of the complainant; quarrel ensued between them but the matter was patched up by the respectables. However, Asghar Masih, petitioner No,1 gave threats and insisted upon to take revenge. It was on 26-3-1994 at 1 p.m. That Akbar Masih armed with revolver, Asghar, petitioner No,1 armed with revolver, Shera armed with revolver, Hayat, petitioner No,2 with pistol, Papu with pistol and Mst. Mumtaz with iron pipe came on the road. Akbar Masih raised Lalkara that they be taught a lesson for insulting Asghar Masih; whereupon Hayat Masih petitioner No,2 fired with his pistol hitting Moti Masih on his abdomen; Papu Masih fired hitting on left flank who fell down; Mansha, brother of complainant tried to apprehend Papu but was fired at by Akbar Masih which hit him on his right flank; Shera Masih fired at Mansha Masih hitting on his left shoulder. Asghar Masih fired which also hit Mansha Masih slightly down the shoulder; complainant and Mst. Shamim tried to rescue Mansha Masih but were attacked by Mumtaz Bibi with iron pipe which hit on the left ear; Papu Masih and Mumtaz Bibi also gave kick and blows to Mst. Shamim who also fell down and thereafter all the accused ran away on having seen the witnesses.

' During the investigation, petitioner No,1 who allegedly has a motive against the deceased has been found innocent by the three different Investigating Officers and has been placed in column No,2. Similarly petitioner No,2 has also been found innocent in all the three investigations conducted by different persons and placed in column No,2; Mst. Mumtaz Bibi accused was got discharged by the police being innocent.

4. I have heard learned counsel for the petitioners as well as the Investigating Officer present in Court. The record has been perused. Admittedly the petitioners have been found innocent by the police in all the three investigations and Mst. Mumtaz Bibi has been got discharged.

5. The learned Additional Sessions Judge dismissed the bail application on the ground that though the petitioners were found innocent but the previous post-arrest bail application was dismissed by his learned predecessor and the findings of the police during investigation are not binding upon the Courts. According to the learned Judge, the petitioners have been specifically mentioned in the F.I.R. With specific role, hence in the presence of eyewitnesses particularly with injured P.Ws. Cannot be relied upon at bail stage.

6. It is necessary to point out that the Courts indeed have discretion under section 497, Cr.P.C. But arc bound to exercise it judicially with due care and caution by taking all facts into consideration and material produced before the Court. The Court must not treat the prosecution version mentioned in the F.I.R. As sacrosanct and the version of the accused to be unreliable and a bundle of lies. The Court can make only a tentative assessment at the bail stage which should neither damage the case of the prosecution nor of the accused.

7. As admitted that the three investigations successively held found the petitioners to be innocent and also got the third accused, Mst. Mumtaz Bibi discharged being innocent. It seems to me a case of in which the guilt of petitioners certainly requires further inquiry. I do agree that the opinion of Investigating Officer is not binding upon the Court but being adverse to the prosecution version itself makes it a case of further inquiry under C section 497(2), Cr.P.C. There is no legal or moral compulsion to keep an accused in jail merely on the allegation that he had been mentioned in the F.I.R. And had committed a murder unless reasonable grounds appear to exist. It is well-established principle of law that law should not be stretched in favour of the prosecution if any benefit of doubt arises, it must go to the accused. In case Muhammad Iqbal v. M. Rafique and another PLD 1989 SC 585, their Lordships held that when the Court finds that two essential conditions contained in section 497(2), Cr.P.C. Or satisfied, the accused shall become entitled to bail of grant as of right, which cannot be withheld on the ground of practice because the later is relatable to exercise of discretion while the former to the exercise of grant of bail. Further there is no bar for the trial Court to entertain second application of bail on the basis of evidence recorded by the prosecution according to which the accused become entitled to concession of bail.

8. To my mind the case of the petitioners is covered by subsection (2) of section 497, Cr.P.C. Being a case of further inquiry. Therefore, the petitioners are allowed bail in the sum of Rs,50,000 (Fifty thousand each with two sureties each in the like amount to the satisfaction of A.C., Kasur.