' MUHAMMAD AHSAN BHOON, J.-The petitioner, through this petition, seeks post-arrest bail in case F.I.R. No, 156, dated 22-3-2007 offence under sections 302/34, P.P.C. Registered with Police Station, Saddar Kasur District Kasur, lodged on the statement of one Mst. Manzooran Bibi, mother of the deceased Muhammad Shafique.
2. As per version of the above said F.I.R., son of the complainant namely Muhammad Shafique was living with her husband's sister Mst. Sakina Bibi, as Mst. Sakina Bibi had no male issue. After some time, son of Abdul Rashid from his previous wife namely Abdul Latif also came there as Mst. Anwar Bibi daughter of Mst. Sakina Bibi was married to the above said Abdul Rashid. After the death of Mst. Sakina Bibi, son of the complainant, Muhammad Shafique took over affairs of property of Qamar Din; husband of Mst. Sakina Bibi, as Qamar Din executed general power of attorney on 15-11- 2005 in favour of Muhammad Shafique duly attested by Sub-Registrar, Kasur. Muhammad Shafique son of the complainant had installed a plant of ice cream at Khudian Road. Co-accused Abdul Latif had grudge upon the management of affairs of aforementioned property by Muhammad Shafique deceased and due to this grudge he along with his friend Muhammad Ashraf alias Bhullar (petitioner) hatched a conspiracy to commit the murder of Muhammad Shafique and they both on 8-4-2006 murdered Muhammad Shafique through strangulation and it was rumour in the public that the deceased died due to electric shock. The complainant has further mentioned in the F.I.R. That on suspicion, an application for exhumation of the dead body of Muhammad Shafique was filed, which was accepted by the learned Addl. Sessions Judge, Kasur on 29-7-2006. Dead body was examined on 13-9-2006 and viscera were sent to the. Office of Chemical Examiner and after that the doctor opined that the cause of death in this case was asphyxia.
3. The petitioner in this case was arrested on 26-6-2007. He moved application for post-arrest bail, which came up for final hearing before the learned Sessions Judge, Kasur who did not find favour and dismissed the same vide his order, dated 17-12-2007 hence the present petition.
4. Learned counsel for the petitioner contends that there is no direct evidence available on record to connect the petitioner with the commission of crime; that no injury was found on the person of the deceased; that in the report of Chemical Examiner, cause of death was declared as asphyxia; that the petitioner was found innocent in the investigation. Vide Zimni No,47 recorded on 28-10- 2007 and was placed in Column No,2 but on asking of District Prosecutor his name has been placed in Column No,3 of the challan, which has no legal sanctity; that he was arrested on 26-6- 2007 and is behind the bars since then; that the petitioner has not been attributed motive part of the prosecution.
5. On the other hand, learned D.P.-G. Assisted by learned counsel for the complainant has opposed the prayer for grant of bail and argued that the petitioner is named in the F.I.R.; that offence with which he- is charged is punishable with death or imprisonment for life and does fall within the prohibition contained under subsection (1) of section 497, Cr.P.C.; and that no mala fide or ulterior motive has been alleged by the petitioner against the complainant or the police to falsely involve him in the present case. He further contends that evidence of extra-judicial confession and last seen in the shape of P.Ws. Muhammad Saddique and Abdul Latif is available on record; that similarly the evidence of last seen has also been recorded.
6. After hearing learned counsel for the parties, and going through the record, I have found the present case wherein the occurrence was allegedly committed on 8-4-2006 and F.I.R. Was lodged on 22-3-2007 after lapse of 11 months 14 days, coupled with the fact that there is no eye- witness of the alleged occurrence and on the exhumation of the dead body, postmortem examination was conducted and cause of death of Muhammad Shafique (deceased) was deferred till the receipt of report of Chemical Examiner/ Bacteriologist. The doctor who conducted post-mortem examination has opined which is re-produced below: ' "Final opinion will be given after receipt of report of Chemical Examiner/Bacteriologist, Punjab Lahore".
' Report was received from the office of Chemical Examiner on 11-3-2006 and on the basis of the said report the doctor opined the cause of the death of deceased, re-produced below:- ' "Report of Chemical Examiner for Punjab, Lahore No, 1488 PV, dated 1-11-2006 of deceased Muhammad Shafique son of Muhammad Saddique PMR Examination No,06/06, dated 13-9-2006 is as:- ' "Poison is not detected in the above articles."
' Autopsy/Histopathological Report No, 109 BACT / ML, dated 26-1-2007 .Of Bacteriologist Government of the Punjab Health Department Lahore is as "Received specimens, received hyoid bone in 3 pieces histological features. Histological examination of sections reveals membranes bone fragments, soft tissue clement is totally autolysed and cellular and nuclear details have reduced to granular debris so no opinion can be expressed. Keeping in view the above mentioned report and initial findings of examination/PMR in my opinion the cause of death in this case is asphyxia due to throttling due to injury to neck evident by of corneous of hyoid bone which is ante- mortem and sufficient to cause death under ordinary course of nature."
' The above said report would show that the cause of death was due to dislocation of hyoid bone.
Whether dislocation of hyoid bone was due to the absence of other muscles, as a result of putrefaption occurred during the period w.e.f, 8-4-2006 to 22-3-2007 the date of exhumation of dead body or due to the force allegedly used for the murder? It can only be determined after recording of evidence.'
7. On perusal of report under section 173, Cr.P.C. I have found that the Investigating Officer concluded that so many persons appeared before him in defence of the accused and they stated that Muhammad Shafique deceased had died his natural death and accused-petitioner Ashraf was found innocent and recommended to be placed in Column No,2 of challan, but thereafter the District Public Prosecutor gave a note at the end of the report under section 173, Cr.P.C. To place the name of petitioner-accused in Column No,3, which, in my considered view, falls out of the purview of duties assigned to the District Public Prosecutor. As no legal sanctity is attached to the opinion of District Public Prosecutor qua the guilt of an accused and it is always the Court, which is to charge the accused under the relevant provisions of law keeping in view the evidence available on record regarding the crime alleged and not the District Public Prosecutor. Reference can be had to PLD 1954 Sindh- 256. Even no Court can order to the Investigating Officer to submit challan while placing the name of the accused in Column Nos.2, 3 and 4, rather the Cour,t can direct the Investigating Officer only to submit final report after completing investigation. Reference can be had to 1983 SCMR370.
8. As far as evidence of extra-judicial confession and last seen evidence are concerned, I would not like to comment upon it at this stage, lest it should prejudice case of either side, suffice it to say that intrinsic value of extra-judicial confession and last seen evidence recorded at belated stage, would be considered after recording of evidence, at this stage, same is opened to further inquiry.
9. For what has been discussed above, this petition is allowed and petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs, 1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.