PERVAIZ IQBAL and another vs THE STATE

' SH. IJAZ NISAR, J.---Leave is sought against the order, dated 27-9-1999, passed by the Lahore High Court, Lahore, dismissing Criminal Miscellaneous No.1528-B of 1999.

2. The prosecution case is that Amjad Hassan complainant was contesting the election of District Council, Rajanpur against Sajjad Haider Khan, petitioner No.2 herein. On 20-5-1998, at about 2-00 p.m. At Polling Station No.19, Sajjad Haider Khan and Pervaiz Iqbal petitioners alongwith 4 others armed with rifles and kalashnikov reached the Polling Station and tried to remove the ballot boxes.

Haq Nawaz, the injured P.W. (the polling agent of Amjad Hasan complainant) and Asghar Ali deceased (a voter) stopped them from removing the ballot boxes, whereupon Pervaiz Iqbal and Sajjad Haider Khan petitioners fired from their rifles hitting Haq Nawaz and Asghar Ali. Haq Nawaz injured P.W. Was removed to the hospital. Asghar Ali deceased reportedly died 7 months and 22 days after the occurrence, while Haq Nawaz survived. The occurrence was witnessed by Muhammad Ahsan and Abdul Bari besides the injured P.W.

3. The bail is urged on the ground that both the petitioners were found innocent in the four successive investigations conducted by various police officers and further that there is cross- version of the case. A case under section 324, P.P.C. Was registered on the statement of Pervaiz Iqbal petitioner for causing fire-arm injuries to Zulfiqar Ali on the same day against Amjad Hassan aforementioned and four others.

4. Learned counsel for the complainant has strenuously opposed the bail application. According to him, the petitioners had sought bail on the same grounds from the High Court but they were not found entitled to the concession. He has referred to the order of the High Court. The relevant paragraph of the High Court's order is as under:- "We have carefully attended to the arguments of the respective counsel and we have also gone through the police record. No doubt the last application of the petitioners being for anticipatory bail was rejected by us on 14-7-1999, however, post arrest bail is being claimed on the points which were thoroughly thrashed in our last order and the position still exists today without there being any change whatsoever in favour of the accused/petitioners. We have also noted in our order dated 14-7-1999 that learned counsel appearing for the complainant made a statement at the bar that Akhtar Gorchani former Superintendent of Police Gujranwala closely related to the petitioners who is now stated to be posted at Karachi was instrumental in affecting the result of various investigations conducted by various agencies. Counsel for the complainant drew our attention to the application of petitioner No.1 wherein it is stated that he was Jamadar in Levies and on day of election was Incharge at four polling stations and the Impression created that he was assigned work at one particular polimg station where he has said to be present at the time of occurrence, was not correct. The argument could not be mooted by the learned counsel for the petitioner and goes a long way to modify the stance of alibi. Akhtar Ali deceased before his death made a statement alongwith Haq Nawaz injured P.W. Which is in absolute conformity with the contents of the complaint, irrespective whether the application now is for bail after arrest and approach to it would not make difference . Irrespective to the earlier application for anticipatory bail. On fact from which no one can escape is that there is sufficient material in the form of testimony of eye- witnesses recorded either in the complaint or in the statements under section 161, Cr.P.C. Which connect both the petitioners with the commission of offence. The result of investigations have to be based on some material and presently we find that the so-called conclusion of alibi reached cannot overweigh the incriminating evidence collected by the prosecution. The plea of alibi taken by the petitioners, therefore, is not binding on the Court even while considering the bail application.

The plea of alibi would be put to scrutiny after the commencement of the trial when the Court will have the chance to ascertain its authenticity. We do not consider it proper to appraisal of evidence.

' In the nutshell we find that in the presence of the statement of the eye-witnesses connecting the petitioners with the commission of offence, no good grounds have been advanced to persuade us to exercise our discretion in favour of the petitioners. However, no observation made in this order shall in any manner effect the proceedings in the trial. Application having no merit is dismissed."

5. Learned counsel for the complainant further maintains that in the application moved by Amjad Hassan complainant for the cancellation of bail of Sher Afghan co-accused of the petitioners a Division Bench of the Lahore High Court had issued a direction to the trial Court on 16-12-1999 to conclude the trial not later than six months. As regards the cross-case registered at the behest for Pervaiz Iqbal petitioner it is stated that a recommendation has been made for its cancellation as the same was found to be false.

6. Learned counsel for the parties have cited a number of precedents in support of their contentions. A study of the case-law on the value to be attached to the opinions of the Investigating Officer shows that it is not binding upon the Court and cannot be made the only basis for granting bail although it is entitled to due weight but the Court is empowered to examine the material which has been made the basis for forming such an opinion and it is for the Court to accept or reject the opinion on examining whether it is based on relevant material and considerations.

7. We are intentionally avoiding to comment at this stage on the soundness or otherwise of the material on which the Investigating Officers have based their opinions, lest it should cause prejudice to either party because the trial is likely to conclude shortly. We do not, therefore, feel persuaded to interfere with the discretionary order of the learned High Court, declining bail to the petitioners. In consequence the petition is dismissed However, we direct the learned trial Court to conclude the trial within 3 (three) months positively uninfluenced by any of the observations made by any Court including this Court.