' IMAM BUX BALOCH, J.---Heard learned counsel for the applicant, learned counsel for the complainant and learned APG for the State.
2. The facts of the prosecution case in precise are that on 28-3-2010 at 5-30 a.m., when the complainant along with his family members and witnesses was sleeping in the house, the applicant along with his co-accused entered into his house and it is alleged that applicant along with co-accused Mumtaz Ali and Ali Muhammad fired one-one gun shot fire upon deceased Dur Muhammad Mahessar, who expired at the spot.
3. During investigation police came to the conclusion that the case is untraceable and declared the applicant and co-accused as innocent. The police disposed of the case under A-class and submitted report under section 173, Cr.P.C, but the learned Magistrate did not agree with the conclusion arrived at by the Investigating Officer and directed him to submit the challan before the competent Court of law.
4. The bail before arrest applications moved by the applicant was declined by the learned trial Court as well as by this Court. In such a situation, the applicant surrendered himself before the trial Court and moved post-arrest bail application which was also dismissed vide order dated 18-5- 2011. Hence, he filed instant bail application.
5. Learned counsel for the applicant submits that F.I.R. Is delayed by more than six hours and no plausible explanation was offered for such inordinate delay. He further submits that memo of place of incident is silent about the availability of electricity; hence identification of the applicant and his companions is doubtful. He further submits that though the police has declared the applicant and his companions as innocent during investigation but he admits that police opinion is not binding upon the courts, but at the time of considering bail plea of the accused, police opinion could be considered. In support of his contentions learned counsel has placed his reliance on the cases of Iftikhar Hussain and another v. State (2004 SCM R 1185), and Muhammad Nawaz v. State (2007 PCr.LJ 1049) and concludes his submissions that the case of the applicant falls under the purview of further inquiry as contemplated under section 497(2), Cr.P.C.
6. On the other hand, learned APG for the State submits that the name of the applicant did appear in the F.I.R. Which was lodged promptly. He further submits that the complainant has plausibly explained the delay of 5/6 hours in lodgment of the F.I.R. He submits that eye-witnesses who are inmates of the house of the complainant have supported the prosecution case in their 161 and 164, Cr.P.C. Statements. He submits that the applicant has admitted enmity which is double edged weapon and such fact can be considered at the time of final adjudication of the case. He further submits that during investigation, police visited the place of incident and recovered three empties cartridges of .12 bore, one empty of KK and one empty of pistol. He placed his reliance on the case of Shoukat Ilahi v. Javed Iqbal and others (2010 SCM R 966) and submits that declaration of innocence of the accused by the police during investigation alone is not a valid ground for grant of bail. He also placed his reliance on the cases of Raj Muhammad Khan v. The State (2011 PCr.LJ 1623), Muhammad Nawaz and another v. The State (2010 PCr.LJ 787) and Shoukat Ilahi v. Javed Iqbal and other(2010 SCM R 966) and concludes his arguments that the case of the applicant did fall within the prohibitory clause of section 497, Cr.P.C., and at this stage, the applicant does not deserve for concession of bail.
7. Learned counsel for the complainant supports the contentions raised by learned APG for the State.
8. I have considered the submissions advanced at bar and also perused the police papers. As regard contention of learned counsel regarding police opinion it is held by the Hon'ble Supreme Court that declaration of innocence of the accused by the police during investigation is not a valid ground for grant of bail as the bail can be granted in the cases falling under the prohibitory clause firstly on the grounds if the Court finds that there are reasonable grounds for believing that the accused has not committed offence, secondly, the accused is sick, infirm, under the age of 16 years, or his remaining in jail would be detrimental to his life or women; and thirdly, if the case requires further inquiry into the guilt of the accused that he has not committed a non-bailable offence etc. In the present case all the above factors are not available with the applicant. The police opinion is not binding upon the courts, but it could be considered after recording of prosecution evidence at the time of final C adjudication of the case, as held in the case of Shoukat Ilahi (supra). As regards case of Iftikhar and others (supra), this case pertains to appeal matter and delay in lodgment of the F.I.R. Was considered by the Hon'ble Supreme Court after evaluating the evidence and names of the appellants had not been mentioned in the F.I.R. In my opinion the case of Iftikhar and others (supra) is not helpful to the applicant.
9. For the foregoing reasons, I see no merits in this bail application, which is dismissed.