' IQBAL HAMEED-UR-REHMAN, C.J.---Petitioner Zia Mehmood alias Mazhar son of Muhammad Sarwar seeks post-arrest bail in case F.I.R. No,74 dated 9-2-2011, registered under sections 302, 148, 149, P.P.C. At Police Station Koraal, Islamabad.
2.. It is pertinent to mention here that firstly the F.I.R. Was lodged under sections 302, 148, 149, P.P.C.
But subsequently section 302, P.P.C. Was deleted and section 315, P.P.C. Was added.
3. The summary of essential facts are that the complainant Abdul Saeed got lodged the present F.I.R. Alleging therein that the petitioner along with other co-accused committed murder of his nephew namely Zahid Shaheen Shah with kicks, fists and Danda blows on account of previous quarrel between them due to an accident.
4. Learned counsel for the petitioner submitted that the complainant nominated as many as 15/20 accused persons armed with Dandas and two of them armed with pistol and attributed a number of injuries at the person of the deceased but there is no injury at the person of the deceased; as such, the prosecution evidence is belied by the medical evidence; that the doctor has given the opinion that the cause of death of the deceased may be due to heart attack; that the postmortem report of the deceased totally negates the allegations levelled in the F.I.R. Against the petitioner and the medical evidence squarely contradicts the allegations levelled in the F.I.R. As such the case of the petitioner becomes that of further inquiry. In this regard, reliance has been placed upon Shafqat Abbas v. The State (2005 YLR 1588), Muhammad Shafiq alias Chhara and another v. The State (2007 M LD 736). It is contended that the complainant also levelled the same allegations against the co-accused Jameel Ahmad, who has been granted bail by the learned Additional Sessions Judge, Islamabad, whereas the bail of the petitioner has been dismissed only due to his nomination in the F.I.R. It is further submitted that during the investigation section 302, P.P.C. Has been deleted and the complainant has not challenged the same before the Investigating. Officer or before any other forum; that nothing has been recovered from the petitioner. It is also argued that the Investigating Officer concluded that the second episode of occurrence regarding causing of injuries at the person of deceased has not been supported by any of the witnesses of the locality; that the, petitioner has no concern whatsoever, with the motive part of the occurrence nor he was present at the place of occurrence and this has also been proved during the investigation and the police has opined that there is no material against the petitioner; as such, the petitioner is entitled for the grant of post-arrest bail.
5. Conversely, learned counsel for the complainant contended that the petitioner is nominated in the F.LR. Ascribing specific role of giving fists, kicks and Danda blows to the nephew (deceased) of the complainant; that the deceased Zahid Shaheen Shah died at the spot due to joint assault of all the accused persons; that the petitioner along with his co-accused also trespassed into complainant's premises, thus section 452, P.P.C. Also attracts to the case of the petitioner; that in the Postmortem report the Doctor has not specifically mentioned that the cause of death, heart- failure, is natural or unnatural. While referring page-339 of the Medical Jurisprudence, learned counsel for the complainant contended that death can be caused without receiving any external injury; that medical evidence is in consonance with the ocular account; that the co-accused nephew of the petitioner namely Atif alias Gora is still at large; that the petitioner also remained absconder for about more than 3 months; that the ipse dixit of the police is not binding upon the Court; that declaration of petitioner's innocence mere on the basis of affidavits of the persons of the locality, who are his close relatives has no value at bail stage; that it is not a case of further inquiry because no witness cited in the F.I.R. Has become hostile; that the maNimum punishment provided for the offence under section 316, P.P.C. Is fourteen years, hence the same falls within the ambit of prohibition of section 497, Cr.P.C. As such, the petitioner is not entitled for the concession of bail.
6. Learned Standing Counsel added that the Doctor is not 100% sure whether the death of the deceased occurred due to heart-failure; that there is no or ulterior motive on the part of the complainant or the local police has been shown by the petitioner; that the deeper appreciation of evidence at bail stage is not warranted under the law; that sufficient incriminating material is available on the record to connect the petitioner with the commission of the alleged offence.
Reliance has been made on the case of Mst. Qudrat Bibi v. Muhammad Iqbal and others (2003 SCM R 68), Abdul Rehman v. Ali Sher and others (2000 PCr.LJ 33), Falak Sher and 3 others v. The State (2001 PCr.LJ 954), Safdar Jameel v. The State (2003 PCr.LJ 110), Muhammad Waqas v. The State (2002 SCM R 1370) and Sher All alias Sheri v. The State (1998 SCM R 190).
7. Heard arguments anxiously and perused the record minutely.
8. The petitioner is named in the F.I.R. Attributing specific role of giving kicks and fists blows to the nephew (deceased) of the complainant. The offence with which the petitioner has been charged, falls within the ambit of prohibitory clause of section 497, Cr.P.C. And in such like cases the rule is jail not bail. No or ulterior motive on the part of the complainant or the local police has been shown by the petitioner for his false implication. The prosecution witnesses have so far stood by their statements made before the police fully implicating the A petitioner with the commission of alleged offence. The petitioner has remained a Proclaimed Offender for a period of more than three months. A precious life of a young person, who was the hope of his family, has lost in the occurrence at the spot. Ipse dixit of the police is not binding upon the Court as has been held in the case of Abdul Rehman v. Ali Sher and others (2000 PCr.LJ 33) as under:- "S.497---Bail---Opinion of Investigating Officer---Worth---Mere fact that accused was found innocent during investigation by the police could not be taken as a valid, legitimate and legal ground for admitting the accused to bail particularly when the complainant, the victim and their supporting witnesses had unambiguously stated against the accused---Opinion of Investigating Officer/Agency was not binding on the Court and ipse dixit of the police could not be taken as a gospel truth and was not ground for bail."
' Only tentative assessm ent is required to decide the bail application and deeper appreciation of evidence cannot be appreciated at this stage. Prima facie, sufficient incriminating material is available on the record to connect the petitioner with the commission of alleged offence.
9. In view of above circumstances, I am not inclined to allow post-arrest bail to the petitioner.
Consequently, the bail application of the petitioner is hereby dismissed.
10. The rights of the parties shall not be prejudiced by the observations made in this order as well as the trial Court shall not be influenced by the same.