' HASNAT AHMAD KHAN, J.---Through this petition Nazir Ahmad alias Billa petitioner has sought post arrest bail in case F.I.R. No,177/07 dated 30-4-2007, registered at Police Station Akbari Gate, Lahore, in respect of offences under section 337 H-2, 148/149 P.P.C. Which was later on amended and offences under sections 302, 337 AU), 337 L2, P.P.C. Were added.
2. Compendiously, the prosecution case as narrated in. The F.I.R. Registered on the written application of Haji Muhammad Riaz (deceased) is that on 30-4-2007 at 10-30 p.m. The complainant (deceased) was sitting along with his tenant Tariq, who told the complainant that Imran alias Mama, Nazir alias Billa (petitioner) and Ghulam Farid alias Gullu had been hurling threats to him (Tariq) to pay the rent to them instead of the complainant. In the meanwhile Haji Muhammad Jehangir along with his above said three sons, statedly, reached there. On raising of lalkara by Haji Muhammad Jehangir co-accused, the petitioner, Ghulam Farid and Imran alias Mama co-accused after felling the complainant on the ground started to rough him up with the handles of their respective firearm weapons. Simultaneously all the accused, allegedly started to beat up Muhammad Qasim son of complainant. On the commotion raised by the complainant party Muhammad Haris and Waris P.Ws, reportedly, also reached there. Whereupon Ghulam Farid co-accused statedly, caused an injury on the nose and lips of Muhammad Haris P.W. By hitting him with the butt of his mouser, which was followed by an injury caused by Nazir petitioner on the right knee of Muhammad Haris P.W. Thereafter Imran co-accused allegedly started to thrash Muhammad Haris with kicks. Thereafter, all the accused including the petitioner along with the two unknown persons allegedly battered Muhammad Waris P.W. Hence the F.I.R. Was lodged.
3. During the investigation, the petitioner was arrested and sent to judicial lock-up. Whereafter he applied for bail after arrest, which was declined to him by a learned Additional Sessions Judge, Lahore vide order dated 21-7-2007.
4. In support of this application Muhammad Kazim Khan Advocate, learned counsel for the petitioner has contended that the petitioner is totally innocent and the prosecution story is a cooked book; that the F.I.R. Has been lodged after suppressing the real story, as a matter of fact raison d'etre behind the occurrence was a dispute between the parties over the right of receipt of rent from Muhammad Tariq tenant; that as a result of a verdict given by a `Punchayat' Muhammad Jehangir, co-accused, father of the petitioner, was entitled to receive rent from the said Tariq but Haji Muhammad Riaz violated the said verdict and on 30-4-2007 demanded the rent from aforementioned Tariq, who summoned Imran Jehangir brother of the petitioner, due to which Muhammad Riaz (deceased) felt annoyed and just after that he in the company of his son Qasim and nephews Muhammad Haris and Waris launched an attack upon the accused, which became a cause of scuffle between the parties; that the deceased suffered a heart attack in his house and kicked the bucket; that even if the prosecution story is admitted on its face value, offence under section 302, P.P.C. Is not made out; that the prosecution story as narrated in the F.I.R. Clearly reveals that the accused had no intention to kill the deceased; that the deceased had suffered minor and superficial injuries and for the same reasons he was not rushed to the hospital before his death; that the complainant/deceased was not medically examined and before reaching the hospital he had already expired; that according to the postmortem report, the deceased had died due to advanced heart disease and its complications, that during the investigation offence under section 302 P.P.C. Was deleted and the accused were challaned under the offences which are bailable and that during the investigation no incriminating article was recovered at the instance of the petitioner. While concluding his arguments, learned counsel for the petitioner has placed reliance on the case of Munir Ahmad v. State (2005 YLR 3184), Sadiq v The State (2006 PCr.LJ 810), Muhammad Jameel v The State (2004 YLR 2843), Noor Muhammad and another v. State (1996 PCr.LJ 417) and Muhammad Younis alias Macca v. The State (2007 MLD 1279).
5. Conversely, learned DPG assisted by the learned counsel for the complainant has strenuously opposed-the bail application by submitting that the petitioner is specifically named in the F.I.R.
That the deceased had himself lodged the F.I.R. Therefore, the F.I.R would be treated as a dying declaration; that though there is some conflict between the ocular version and the medic al evidence yet the deeper appreciation of evidence is not permissible at the bail stage; that the challan has already been submitted before the court and on this score also the petitioner is not entitled to bail; and that besides that effect of the injuries suffered on vital part of his body, the deceased had died after feeling humiliated and insulted due to his thrashing by his nephews, who, therefore, are fully responsible for the death of the deceased. Therefore, according to him, the petitioner is not entitled to bail.
6. After hearing the arguments put forth by the parties, I have concluded that prima facie it appears that the misfortunate incident was the result of a dispute over the receipt 'of rent from Tariq, a tenant from whom both the parties being co-sharer of the rented property, were demanding rent. I have further noticed that the allegation against the petitioner of causing blunt weapon injuries to the deceased, is in the generalized form. According to the contents of the F.I.R, all the injured persons were sent to a Hospital but it appears that the deceased did not opt to go to the hospital. A discharge certificate issued by Mayo Hospital, produced by the learned counsel for the petitioner, reveals that Muhammad Riaz (deceased) was admitted in the hospital at 1-00 a.m.
On 1-5-2007 and he was discharged at 1-05 a.m. After declaring him dead. According to the doctor, who conducted the autopsy, on the dead body of Riaz all injuries suffered by him were contused wounds. Remarks made by the concerned doctor, while issuing postmortem report, are reproduced as under: "all above four injuries are superficial, ante-mortem, by blunt weapons (No medico legal certificate produced) and not causative of death."
' At the time of postmortem examination the cause of death could not be determined. However, on the receipt of report of Chemical Examiner the opinion was given by the doctor according to which the deceased had died due to the advanced heart disease and its complication. On the basis B of the said report offence under section 302 P.P.C. Was deleted by the Investigating Officer on 24-6- 2007.
7. During the investigation it was opined that at the time of occurrence, Ghulam Farid co-accused who, was armed with a pistol, had caused butt blows to the complainant/deceased as well as injured P.Ws, while according to the Investigator; Nazir alias Billa (petitioner) had caused only fist and kick blows to the injured P.Ws. Be that as it may, according to the postmortem report, the death of the deceased was result of heart disease. Besides that, according to the said report, deceased had suffered two superficial injuries on his chest, which have been attributed to three accused in a generalized form. No specific injury has been attributed to the petitioner. During the investigation, no incriminating material was recovered at the instance of the petitioner. It is true that the deeper appreciation of evidence cannot be undertaken at the bail stage, but it is equally true that benefit of doubt can be extended to the accused even at bait stage and tentative assessment of the prosecution can be made while deciding bail C application. Reliance in this regard is placed upon a case of Amir Ali and others v. The State (1983 PSC 1490). After considering the contents of the postmortem report coupled with the fact that though the accused were allegedly armed with fire- arm weapons, yet they avoided to use the same effectively, I have concluded that the question of applicability of. Section 302 P.P.C., in this case would be requiring further enquiry within the ambit of section 397 (2), Cr.P.C., to say the least. Reliance is placed on cases Ehsan Akbar v. State and 2 others (2007 SCMR 482), Munir Ahmad v. The State (2005 YLR 3184), Noor Muhammad and another v. The State (1991 PCr.LJ 417), Sadiq v. The State (2006 PCrXJ 810) and Muhammad Akram and another v. The State (1985 PCr.LJ 390). It is an established law that a mistaken relief of grant of bail can be rectified by awarding the proper sentence to the accused at the conclusion of the trial, but an innocent person who suffers unjustified incarceration cannot be properly compensated upon his acquittal. In this regard I am pinning my faith on a case of Tariq Bashir V. The State (PLD 1995 SC 34).
8. As far as the submission of challan is concerned, I have been apprised that supplementary challan is yet to 'be submitted and the charge has not yet been framed. Even otherwise after making out a case of further inquiry the accused becomes entitled to bail as a right which cannot be denied on the basis of practice or propriety. Reliance in this regard( is placed on the case of Muhammad Ismail v. Muhammad Rafiq and another (PLD 1989 SC 455) and Muhammad Salim v.
The State (PLD 1989 Lah 233).
9. For what has been stated above, the application in hand is accepted and the petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs,300,000 with two sureties in the like amount to the satisfaction of the learned trial court. Before parting with the order, it is observed that the findings/observations made in this order, are tentative in nature and the trial court shall not be influenced in any manner during the course of trial by the said findings.
In the peculiar circumstances of the case, the learned trial court is further directed to conclude the trial positively within three months of the receipt of the order. A report in this regard will be submitted to this court through D.R. (J). Of this court.