' RAJA SAEED ALAM KHAN, J.---Petitioner seeks his post-arrest bail in case F.I.R. No,261 dated 12-11- 2007 registered under sections 302, 109, 148 and 149, P.P.C., at Police Station Bhara Kahu (Islamabad).
2. Briefly, allegation against the petitioner is that he made an unlawful assembly, having common object, with their co-accused, who ultimately killed brother of complainant, as revenge of the murder of their brother Munir.
3. Learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in this case, as a device of wider net, being brother of Waheed, who is one of co-accused; that the allegations levelled against the petitioner are false, frivolous, basless and ill-founded; that during investigation the Investigating Officer has declared the petitioner innocent and his presence could not be proved, therefore, he was placed in column No,2, but later on on the instructions of District Attorney he has been challaned in this case; that the District Attorney could nbt substitute the findings of Investigating Officer; that one of the co-accused namely Masuood, who was assigned same role, was declared innocent during the investigation and at the time of confirmation of bail, Investigating Officer was confronted with the findings, as a result of which, he (Masuood) withdrew his bail petition; that no specific role has been attributed to the petitioner nor any specific weapon has been assigned to him. He has further argued that the allegation against the petitioner is fake in nature and there are glaring contradictions in ocular and medical accounts; that the petitioner is behind the bars since his arrest; that three persons of the same locality, who were not related to the petitioner, had sworn their affidavits in favour of petitioner regarding his absence from the place of occurrence, during investigation, before the Investigating Officer. He has finally submitted that there is delay of 2-1/2 hours in lodging F.I.R, which is unexplained, whereas, the distance between the Police Station and place of occurrence is only 1-Killometer.
4., On the other hand, learned counsel for the complainant has argued that ipsi dixit of police is not binding on Court; that presence of petitioner at the time of occurrence is proved; that admittedly deceased's party was involved in a murder case, in which present petitioner and his brother were on complainant side; that even the Grid's record of telephone shows that he was present in that area, where occurrence took placed. He has further argued that affidavits, on which the petitioner is relying were submitted after 25-days of the occurrence, whereas, occurrence took placed in a very populated area and F.I.R. Was lodged promptly, however, if some delay is there, the same is natural one, as the paramount consideration for the complainant side was to save the life of deceased. He has finally argued that the petitioner has been assigned specific role and his participation in the occurrence is fully proved.
5. Learned Federal counsel has adopted the arguments advanced by learned counsel for the complainant.
6. I have heard arguments advanced by both sides and have perused the record.
7. The Investigating Officer, who is present in the Court, has categorically stated that except the statement of co-accused, on which District Attorney made basis of his findings, no other evidence is available against the petitioner. During investigation his presence at the spot could not be proved. No tangible evidence has come on record against him, therefore, he was declared innocent and placed in column No,2 by the Investigating Officer but on the direction of District Attorney he was challaned in column No,3. He has further submitted that although from the Grid's report he was present around the area, where occurrence took place, but his presence at the spot could not be proved. Deeper appreciation of evidence is not warranted under the law at bail stage and only tentative assessm ent can be made on the basis of material collected by the police during investigation. There is a direct conflict between the medical and ocular evidence. According to F.I.R. Assailants came from front side of the car, but surprisingly car was not damaged from front side nor any injury has been received by the victim on front part of his body, which makes the case of petitioner that of further inquiry. Reliance is placed upon the case re: Haji Maa Din and another v.
The State and another, reported as 1998 SCM R 1528. Although ipsi dixit of police is not binding on the Court, however, it can be considered as relevant factor at the time of bail. Reliance is placed upon the case re: Muhammad Rafiq v. Abdur Rahman and 5 others, reported as 1986 SCM R 1978 and case re: Muhammad Mumtaz and' 3-others v. The State, reported as 1988 SCM R 1452. Same role was assigned to co-accused Masuood, who after being declared as innocent by the police, withdrew his bail petition from the learned trial Court. Under the law, finding of Police could not be substituted by the District Attorney. He could not take role of Investigator. This fact has also been conceded by learned counsel for the complainant. Findings of police regarding innocence of the petitioner, are based upon the statements of persons, who are of the same locality and have no relation with the petitioner, whereas, the only basis made for the findings of District Attorney, substituting the findings of Investigating Officer is statement of co-accused, which has no value under the law.
8. For what has been discussed above, I am inclined to accept this bail petition. The petitioner is admitted to bail, subject to furnishing bail bond valuing Rs,1,00,000 with one surety in the like amount to the satisfaction of Deputy Register (Judl.) of this Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.