In support of this petition, learned counsel for the petitioner submits that Mian Arshad Iqbal, Advocate had died due to heart attack, that the doctor who conducted the postmortem examination on the dead body of the deceased deferred the cause of death and sent the viscera and other material to the office of Chemical Examiner and Bacteriologist. Adds that there is no corroboration of the oral testimony to the postmortem report. As far as, Section 397 PPC is concerned, learned counsel submits that there is no specific allegation against the petitioners the they were the persons, who had taken away cash amounting to Rs, 40.000/- and two Mobile Phones. Adds that petitioner's party belongs to Pakistan Peoples Party while the complainant party belongs to Pakistan Muslim League (Q), that it is a political motivated case, that petitioners have joined the investigation, nothing is to be recovered from them and their case is of further inquiry falling under sub-section (2) of Section 497 Cr.P.C.
2. On the other hand, learned Addl. A.G. submits that as far as Section 302 PPC is concerned, ocular account is not corroborated by medical evidence, as the reports of Bacteriologist and Chemical Examiner shows the same but the ocular evidence is there to support the version of prosecution and the incident has definitely aggravated the heart ailment of the deceased. As far as, Section 397 PPC is concerned, he submits that maximum sentence is seven years and recoveries are yet to be effected from the petitioner, so they are not entitled for the grant of bail before arrest.
3. Learned counsel for the complainant submits that the doctor while conducting the post-mortem examination found congestion on the different organs of the body of the deceased and it was due to the injury and scuffle, which took place between the parties, that accused party is very influential, that one of the co-accused, namely, Dr. Asad Moazzam is real brother of Shehzad Muazzam petitioner, who is also M.P.A, from P.P.P, he used his influence and got this false report from the doctor who conducted postmortem examination on the dead body of the deceased, that this is a bail before arrest and considerations for the grant of bail before arrest and after arrest are totally different. Adds, that Ashfaq petitioner is already involved in 10 criminal cases. Further submits that not only the deceased received the injury but complainant was also injured in this case, that offence alleged against the petitioners falls within the ambit of Section 497 (1) Cr.P.0 and they are not entitled for the grant of bail before arrest. He has relied upon PLD 1988 S.0 97.
4. I have heard learned counsel for the parties. Complainant in this case is Mian Saeed, real brother of Mian Arshad deceased. In the FIR it was stated by the complainant that seven accused whose names have been given in the FIR alongwith 15/20 persons attacked on the complainant and his deceased brother, injured them, thereafter, they snatched two mobile phone and Rs, 40,000/- from the complainant party. Occurrence in this case took place on 28.3.2004, while matter was reported to the police on the same day but till today no medical examination of the complainant has been gat conducted. The postmortem report certified copy of which has been placed on record reveals that there was no injury on the person of the deceased, the doctor could not give the opinion and deferred the cause of death till the receipt of reports of Chemical Examiner and Bacteriologist.
Report of Bacteriologist and that of Chemical Examiner has been placed on record. According to the report of Chemical Examiner no poison was detected in the viscera. As far as report of Bacteriologist .is concerned, that's, reproduced below; "Histological Feature: Histological examination of heart sections reveals advanced atherosclerotic changes in the cornories. The myocardial sections reveals areas of fibrosis. These features are suggestive of Active Ischeemic Heart Disease. The lung sections are unremarkable. The meninges are slightly congested. The brain tissue is unremarkable.
Prima-facie it is apparent that there was no injury on the person of the deceased and he died due to heart failure. Even the learned Addl. A.G. to be very fair is unable to rebut this fact. Now as far as, Section 397 is concerned, seven persons alongwith 15/20 persons are named in the FIR but it was not mentioned that specifically who attacked on the deceased and the complainant, moreover, who was the person who had snatched two mobile phones and Rs, 40,000/- from the complainant party. It is correct that offence alleged the petitioners is punishable with death or Imprisonment for life and it is a bail before arrest but the Court has to see whether the involvement of the petitioners prima-facie is proved from the FIR, postmortem report and the other documents on record or not and moreover, it has not been denied that both the parties belonged to rival group. It is important to note here, that complainant party belongs to Pakistan Muslim League (Q) and accused/petitioners belongs to Pakistan Peoples Party so in these circumstances of the case, how the petitioners could influence that doctor who conducted the postmortem examination on the dead body of the deceased, there was so many remedies with the complainant party, they could have give an application for reconducting postmortem examination through Medical Board and they could have also filed the complaint against the police for not getting the medical examination of the complainant, although about 25 days have elapsed. Petitioners have also joined the investigation. To my mind, life and liberty of the citizens is too much important, no person can be deprived of this precious liberty, unless allegations levelled against him are prima facie proved from the record. In the instant case, prima-facie this Court is of the view that these allegations against the petitioners are not proved from the record in hand after making tentative assessment of the evidence.
After having heard the learned counsel for the parties, going through the FIR, postmortem report, report of Chemical Examiner and report of Bacteriologist I am of the considered opinion, that case of the present petitioner is of further inquiry falling under sub-section (2) of Section 497 Cr.P.C, therefore, interim bail already granted to the petitioner is hereby confirmed by accepting this petition.