' M. BILAL KHAN, J.---Zafar Munir son of Muhammad Munir,the petitioner, by filing the instant petition seeks post-arrest bail in case F.I.R. No,241, dated 10-11-2005, registered with Police Station Sehala, Islamabad for an offence under section 302/34, P.P.C.
2. The case of the prosecution as it unfolded in the F.I.R., registered at the instance of Mansoor Ahmad son of Muhammad Sharif, was that on 10-11-2005, about 12.00 noon, his brother Zahoor, who was sitting with him at his shop, went towards the rear side of the shop to urinate; a little while after he had departed, a noise was heard causing him and Ibrar son of Muhammad Hussain, who was also sitting at the shop to rush towards that place; they saw that Zahoor was running while raising alram and he was being followed by Muhammad Munir, Muhammad Shabbir sons of Hidayat Ullah and Zafar son of Muhammad Munir armed with sticks; they also ran after them, however, the accused persons overtook Zahoor and Muhammad Munir caused a stick blow on his head; on receipt whereof the former fell down, whereafter Muhammad Shabbir delivered him a stick blow which landed on his right eye; Zafar (petitioner) inflicted a blow with his stick on Zahoor, who became unconscious and died before he could be taken to the hospital; as the complainant and his companions had reached near the deceased, the accused persons fled from the scene.
' Motive according to the complainant was that Muhammad Munir and Shabbir had a dispute of land with Zahoor and in that regard a case was pending in a Court at Islamabad; on 8-11-2005, Muhammad Munir and Shabbir had an altercation with Zahoor, but due to the intervention of Muhammad Yaqoob son of Ghulam Muhammad, the matter had been patched-up; after the said incident of 8-11-2005, his brother Zahoor deceased had gone missing but he had returned the next day late in the night. Resultantly, the instant F.I.R. Had been recorded.
3. The petitioner was arrested on 11-12-2005 and is in custody ever since. His plea for post-arrest bail did not find favour with the learned Additional Sessions Judge, Islamabad, who proceeded to dismiss his application vide order, dated 25-3-2006. Hence, the instant petition.
4. Sardar Muhammad Latif Khan, the learned counsel for the petitioner argued that the case against the petitioner is absolutely false and he has been maliciously involved on account of ulterior considerations; that Zahoor deceased had disappeared from his house and report to that effect had been lodged on 9-11-2005 at Police Station Sehala by the complainant; that his dead- body had thereafter been found in the fields, however, police in league with the complainant manipulated the F.I.R. Showing it to be a witnessed occurrence; that the fact that the dead-body had been found in the fields and the same had been discovered much after his death, is proved from the post-mortem report, whichshows that the same had been found in the fields and that the lungs had thick adhesions with chest wall; that in the post-mortem report time between injury and death was stated to be within thirty to sixty minutes, whereas the time between death and post- mortem was recorded as eighteen hours, as such the stand taken by the complainant in the F.I.R.
That Zahoor had died before being carried to the hospital is negated by the post-mortem report; that the duration between injury and death and other related factors are destructive of the story as contained in the F.I.R.; that from the post-mortem report it is easily discernible that Zahoor had been done to death in the night time and his body was found in the fields the following morning, whereafter the story in the F.I.R. Was fabricated to give it a colour of daylight witnessed occurrence; that the injuries suffered on his head could not have caused his death, if Zahoor deceased had been removed to the hospital immediately; that no specific injury has been attributed to the present petitioner and the two abrasions on he top of vertex each measuring 3 cm x 1 cm and 2 cm x 1 cm, respectively are in fact one injury attributed to Muhammad Munir co-accused, one of them being a contrecoup injury; that the very fact that the Medical Officer had sent specimens of complete heart to the Histopathologist and the stomach contents, small and large gut, liver, spleen and kidney for detection of poison to the Chemical Examiner is by itself sufficient to demonstrate that he was having some doubts about the injuries on the head being sufficient enough to cause death; that the story as contained in the F.I.R. Is improbable, in that it is not conceivable that if the petitioner and his elderly father and uncle had launched assault upon Zahoor with sticks, the latter's real brother and other eye-witnesses would not choose to interfere and rescue him; that a large number of witnesses appeared during the course of investigation to vouch for the innocence of the petitioner and to support his plea of alibi; that a number of shopkeepers of Sehala Bazaar had appeared before the Investigating Officer to affirm that dead-body of Zahoor had been detected and found in the fields, as also to negate the so-called occurrence as alleged in the F.I.R.; that the police in collusion with the complainant had chosen to submit incomplete challan before the Court, however, later on Superintendent of Police (Investigation) had taken up investigation, during the course of which he had received unimpeachable evidence in support of the petitioner's innocence as also to the 'effect that Zahoor deceased had died somewhere in the midnight in the fields, where his dead-body had been found unattended in the morning by the people. The learned counsel in support of his plea for bail relied on Khalid Javed Gillan v. The State (PLD 1978 SC 256), Muhammad Azam v. Khalid Javed Gillan, and others 1981 SCMR 734, Muhammad Aslam Khan v. The State (1999 SCMR 172) and Muhammad Naqi Butt and another v. The State (PLD 1976 Lahore 190), to canvass that plea of alibi could be legitimately considered by this Court for the grant of bail. He alsoargued that in view of the authoritative pronouncement of the Hon'ble Supreme Court of Pakistan in case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585) to the effect that when an accused person becomes entitled as of right to bail under section 497(2), Cr.P.C., the said concession cannot be withheld on the ground of practice i.e, that when a murder case is fixed for hearing, ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Court, therefore, the mere fact that the trial has commenced and some evidence has been recorded would not preclude this Court from granting the concession of bail if the petitioner is otherwise entitled to the said relief.
5. On the other hand, Sardar Muhammad Ishaq Khan, the learned counsel for the complainant vehemently opposed the grant of bail to the petitioner and argued that the petitioner's father Muhammad Munir co-accused is still a proclaimed offender and has not been captured, although F.I.R. Had been recorded more than seven and a half months back. He referred to the case of S.M.
Zaheer v. The State (1969 SCMR 107), where the Hon'ble apex Court had refused bail to the petitioner in a case under sections 268, 365, 395, 468, P.P.C. As two of his co-accused had absconded and reasonable grounds appeared in believing that the petitioner was guilty of the offence punishable with transportation for life. He also argued that the fact that the dead-body had been found in the fields is in fact prosecution's own case and no benefit could be derived by the petitioner on this count. He further argued that the so-called shopkeepers of Sehala had appeared before the Investigating Officer almost a month after the incident and surprisingly none of them had come forward to support the claim of the petitioner on the first day of the occurrence; that there is no contradiction in the ocular account and the post-mortem report and even if there is any conflict, the same has to yield to the ocular account, which in this case is confidence- inspiring and straightforward. In this connection, he relied on Abdul Hayee and 2 others v. The State (1996 SCMR 555), wherein the Hon'ble apex Court had held that conflict in the ocular account and the medical evidence could be given due weight by the trial Court only after recording evidence.
He added that if one of the injuries out of the two found on the top of vertex was a countercoup injury as claimed by the petitioner, there was nothing stopping him from asking this question to the doctor, who had conducted post-mortem examination. Referring to the deposition of the doctor recorded by the trial Court, it was submitted that even any suggestion to this effect is conspicuously missing. He finally argued that although it is not binding on this Court to refuse bail if the trial has commenced, yet, the conduct of the accused is a relevant consideration and that in the instant case the petitioner and his co-accused have been instrumental in delaying the trial so far.
6. Mr. Muhammad Aslam Rajput, the learned counsel for the State while adopting the arguments addressed by the learned counsel for the complainant has opposed this petition.
7. I have heard the learned counsel for the parties at considerablelength and have also gone through the record brought by Muhammad Anar, S.-I.
8. It has been observed that formal charge had been framed in the trial on 22-4-2006 and the case had been fixed for prosecution evidence for 13-5-2006. On the latter date, three prosecution witnesses were in attendance, however, the case was adjourned on the asking of the accused to 27-5-2006. On 27-5-2006, eight prosecution witnesses were present, but adjournment was sought by the accused on the plea that they had engaged Sardar Muhammad Latif Khan Khosa, Advocate, who was not available and the case was postponed to 10-6-2006. On the said date, seven prosecution witnesses were present, however, Malik Muhammad Rafiq, Advocate filed his power of attorney and requested for adjournment as he had been engaged by the accused on that particular day, therefore, the case was adjourned to 24-6-2006. On 24-6-2006, one prosecution witness was examined but the other prosecution witnesses, namely, Mansoor complainant and Muhammad Sabir were not examined as the learned defence counsel wanted them to be examined after recording of formal witnesses. On 1-7-2006, two prosecution witnesses were examined, but rest of the seven P.Ws. Could again not be examined as the defence counsel stated that they were material witnesses and would be examined after formal evidence had been completed. On 15-7-2006, one prosecution witness was examined and the District Attorney wanted to examine other prosecution witnesses in attendance, namely, Mansoor complainant and Muhammad Ibrar, but the defence counsel persisted that they be examined after the formal evidence. The case was adjourned to 22-7-2006, on which date the doctor, who conducted post- mortem examination had been examined; examination-in-chief of the two eyewitnesses was conducted and in addition two more witnesses were examined, however, the learned defence counsel submitted that he had to proceed abroad, therefore, on account of the said request and in view of the oncoming summer vacations, the case was adjourned to a date in September, 2006.
9. The events as detailed in chronological order clearly demonstrate that deliberate attempts are being made by the petitioner to prolong and procrastinate the trial. Even otherwise, in order to appreciate the pleas raised by the learned counsel for the petitioner, a A deeper appreciation and appraisal of the material available on the record needs to be undertaken, which cannot be done by this Court, while seized of a bail application. Apart from that admittedly some materialevidence has been recorded in the case which includes two eyewitnesses, who have yet to be cross- examined by the defence. Another very important witness i.e, the doctor, who had conducted post- mortem examination of the deceased, has completed his deposition. Any comment, at this stage, on the testimony of the prosecution witnesses especially the doctor and its quality would be most inappropriate, as it may amount to pre-empting the functions of the trial Court. Had the petitioner been cooperative in the trial, the same would have definitely been concluded by now. Granting him bail at this stage would amount to giving him bonus for the dilatory ploys successfully employed by him, whereby he has been able to unnecessarily drag the trial. It goes without saying that each criminal case proceeds on its own merits and, therefore, the precedents quoted by the learned counsel for the parties would be applicable only to the extent that they coincide with any legal or factual aspect of the controversy involved.
10. Resultantly, I see no merit in this petition, which is accordingly, dismissed.