' HASNAT AHMAD KHAN, J.--- Muhammad Nawaz petitioner seeks bail after arrest in case F.I.R.
No,635, dated 21-8-2006 registered under section 302, P.P.C. At Police Station New Multan, District Multan.
2. Briefly the prosecution story as narrated in the F.I.R. Lodged at the instance of Muhammad Ramzan complainant is that Mst. Nasreen mother-in-law of the complainant had contracted second marriage with Muhammad Nawaz petitioner. On 12-8-2006 the petitioner allegedly caused iron rod blow on the head of said Mst. Nasreen in presence of Muhammad Sadiq and Muhammad Ashiq P.Ws. It had been further alleged in the F.I.R. That after causing the said blow, the petitioner resorted to brickbat Mst. Nasreen (deceased) who fell on the ground after becoming unconscious.
Thereafter she was removed to Nishtar Hospital. On 18-8-2006 Mst. Nasreen succumbed to the injuries and expired in the hospital. Motive of the occurrence was stated to be the usual quarrel between the spouses.
3. Learned counsel for the petitioner has contended that during the investigation the petitioner was found innocent and a report for discharging the petitioner and cancellation of the case was submitted by the police to the concerned Magistrate who however did not accede to the request of the police and thereafter the petitioner, had been challaned after placing his name in Column No,2.
On the basis of said fact, learned counsel for the petitioner has submitted that a case of further inquiry has been made out in favour of the petitioner. He has further contended that the F.I.R. Was lodged with an inordinate delay of 10 days. He maintains that in fact the deceased had received injuries on her head after falling on the lid of the gutter. He adds submits that both the alleged eye- witnesses are not natural witnesses and none of the inmates of the house in which the occurrence allegedly took place has been cited as a witness. To strengthen his argument;the learned counsel for the petitioner has placed reliance on Akhtar Zaman v. State 2001 YLR 2076 and Muhammad Akram v. The State 2005 YLR 683.
4. On the other hand learned counsel for the State assisted by the learned counsel for the complainant has opposed the grant of bail on the ground that the petitioner has been specifically named in the F.I.R. That opinion of the police is not binding on the Courts and offence allegedly committed by the petitioner falls within the prohibitory clause of section 497, Cr.P.C.
5. Learned counsel for the parties have been heard and record perused.
6. Admittedly the complainant is not an eye-witness of the occurrence. There is also inordinate delay of 10 days in lodging of the F.I.R. Although the learned counsel for the complainant has tried to meet this objection by stating that the complainant remained busy in attending Mst. Nasreen in the hospital, yet the fact remains that she had died on 18-8-2006 and the present F.I.R. Was lodged on 21-8-2006 i.e. 10 days after the occurrence and three days even after the death of Mst. Nasreen Bibi.. The occurrence had allegedly taken place in the house of the petitioner and the deceased yet none of the imnates of,the- house had been cited as eye-witness of the occurrence. Both the alleged eyewitnesses of the occurrence are residents of another village who claimed to be present at the time of occurrence just per chance. Time of occurrence has not been mentioned in the F.I.R.
During the investigation, weapon of offence i.e. The iron rod had not been recovered by the police.
It is pertinent to mention that after thorough investigation the police found the petitioner as innocent. It is true that opinion of the police is not binding upon the Courts but it is also fact that for the B purpose of bail opinion of the police can be taken into consideration. Reliance in this regard is placed on Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Ibrahim v. Hayat Gul and another 1985 SCMR.
382. In the said judgments it had been held by the Honourable Supreme Court that after recording of the finding of the innocence by the police the accused become entitled to bail as a matter of right. Bail may be denied to the accused even if he is found innocent by the police if the same is not found to be based upon sound material. To see whether opinion of the police recorded in this case was based upon the sound material or not, the police file has been consulted with the assistance of the learned counsel for the State. Perusal of the same shows that opinion of innocence of the petitioner is prima facie, based upon sound material inasmuch as during the investigation statements of two witnesses, namely, Ghulam Rasool and Ghulam Qasim who claimed to be the eye- witnesses of the occurrence in which, according to them, the deceased received injuries after falling on the lid of the gutter, were recorded by the police. The said witnesses prima facie appear to be natural witnesses. One of them is running a shop in the same street in which alleged incident of falling of The deceased took place. The statements of those witnesses who allegedly transported Mst. Nasreen (deceased) in the injured condition to the hospital are also part of said record. It is also observed that the prosecution has failed to collect material regarding medical treatment- given to the deceased on her first visit to the hospital i.e. On 12-8-2006. As such it is not clear as to who had transported her to the hospital. According to the report she was discharged from hospital on 17-8-2006 and she was re-admitted to the hospital on 18-8-2006 on which date she had expired. Allegation of causing of injuries to Mst. Nasreen (deceased) due to the brick-batting, prima facie, is not finding support from post-mortem report.
7. Be that as it may, without going into the deeper merits of the case. I find that the question as to whether the occurrence took place at the place and in the manner as alleged by the prosecution or as alleged by the accused would be requiring further inquiry. Since a case of further inquiry has been made out, framing of charge would not hinder the right of the petitioner to get post-arrest bail. Reliance in this regard is placed on Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Muhammad Saleem v. The State PLD 1989 Lah.
233.
8. For what has been stated above, the petitioner is allowed bail after arrest subject to his furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court. However, the learned trial Court is directed to conclude the trial expeditiously preferably within a period of three months under intimation to this Court through Deputy Registrar (J).