' SHUJAAT ALI KHAN, J.---Muhammad Arif-petitioner has sought post arrest bail in case F.I.R. No, 344 of 2012 dated 28-7-2012 registered at Police Station Aimanabad, Gujranwala in respect of the offences under sections 302/147/149, P.P.C.
2. The allegation against the petitioner, in precise, is that he, along with others, thrashed son of the complainant with fist blows, batons and bricks on 27-7-2012 who ultimately succumbed to the injuries on the next day.
3. The resume of the arguments advanced by the learned counsel for the petitioner is that there is delay of 33 hours in lodging the F.I.R.; that initially the police cancelled the F.I.R. As no incident, as alleged by the complainant, took place; that even in the subsequent investigation conducted pursuant to the orders of the high-ups of the police department, the petitioner has been found innocent and cancellation report submitted by the police is pending before the concerned Judicial Magistrate; that the complainant is not the eye-witness of the occurrence rather the story narrated by her in the F.I.R. Is based on hearsay; that no recovery has been effected from the petitioner; that no specific injury is attributed to the petitioner; that though eight persons have been mentioned in the F.I.R. But the presence of only four injuries on the person of the deceased put serious dent into prosecution version; that investigation of the case is already complete and physical custody of the petitioner is no more required for investigation purpose. In support of his contentions, learned counsel has referred to the cases of Asmatullah v. The State and others (PLD 2011 Supreme Court 178), Rehmat Ullah Butt v. The State (2009 PCr.LJ 104), Muhammad Akram and another v. The State and another (2009 YLR 941), Imtiaz Ahmad v. The State (PLD 2009 Lahore 14), Shah Nawaz v. The State (2009 YLR 2300) and Tabassum Ali v. The State (2009 YLR 822).
4. Conversely, learned D.P.-G-., assisted by learned counsel for the complainant, while controverting the contentions urged by the learned counsel for the petitioner, submits that the petitioner is specifically named in the F.I.R.; that not only the complainant has implicated the petitioner in the F.I.R. But also the witnesses in their statements under section 161, Cr.P.C. Have also named the petitioner as an accused; that there is sufficient material available on record to connect the petitioner with the commission of the offence; that though no specific injury has been attributed to the petitioner but he is vicariously liable for the offence along with his co-accused; that offence is of heinous nature and that no reason for his false involvement in the present case has been advanced by him.
5'. After hearing the learned counsel for the parties and going through the documents appended with this petition in addition to the case-law cited by the learned counsel for the petitioner, I have noted that the incident in the instant matter took place on 27-7-2012 at 11-00 a.m. Whereas the matter was reported to the police on the next day i,e, 28-7-2012 at 10-5 p.m. No reason for delay of about 33 hours in A lodging the F.I.R. Has been explained by the complainant. Delay in lodging the F.I.R. Of a criminal case; especially in the cases entailing B capital punishment, is considered fatal for the prosecution case. If any case-law is required, a reference can conveniently be made to the' case report as Bashir Ahmad v. The State and another (2012 YLR 545).
6. In ordinary course, the opinion of the police is not considered as valid piece of evidence, however, the same can be given some weightage while deciding bail application and the only condition precedent for such reliance is that the opinion of the Investigating Officer is based on sound material. Reliance in this regard is placed on the case of Mudassar Altaf and another v. The State (2010 SCMR 1861) wherein the august Supreme Court of Pakistan has inter alia held as under:- - "11. It is also settled principle of law that the observations made by the superior courts, while dealing with question of bail are intended only for that limited purpose. Mere mentioning the name of the accused in Column No,11 while submitting challan by the police does not debar the courts to evaluate the material on record and finding of the police is not binding on the court and that while granting or refusing bail, the courts can take into consideration this aspect of the case.
See Haji Inyatul-Haqs's case (1988 SCMR 1743), Iqbalur Rehman's case (PLD 1974 SC 83) and Gul Ahmed's case (1997 SCMR 27)
If we adjudge the case in hand on the touchstone of the afore quoted judgment of the apex court of the country a perusal of the police file shows that findings of the police are based on the affidavits/statements of the persons who have no relation either with the accused or with the complainant party and they were not only present at the spot at the time of occurrence but also took certain measures to transport the injured to the hospital. Thus, the findings of the police in the instant case fulfill the criteria laid down by the superior courts for reliance in the bail matters.
7. Another important factum of the instant case is that according to the complainant her son was mercilessly beaten by five named and three unknown persons but presence of four injuries on the person of the E deceased speaks otherwise. Further, the locale of the injuries, prima facie, shows that the injuries were not the result of beating allegedly given by the petitioner and his co-accused.
These facts cast serious doubt about the veracity of the prosecution story and benefit of doubt can be F given to the accused even at bail stage. In this regard case of Ali Sheharyar v. The State (2008 SCMR 1448) can be referred wherein the august Supreme Court of Pakistan has inter alia laid law to the following effect:-- "However, on tentative assessment of the material on record for the purpose of grant or refusal of bail in murder case of cross-version, if some doubt is created about the injuries caused to the deceased as to who was responsible for the same, which of course, has to be determined by the trial Court on minute appreciation of entire evidence, the provisions of section 497, Cr. P. C. Would be attracted and benefit of such doubt would be extended to the accused even at bail stage."
' Further in Ali Gul v. The State (2003 SCMR 201) while dealing with said proposition the apex court of the country has inter alia observed as follows:-- "In addition to it, prima facie, we are of the opinion that if at all an attack was launched by the petitioner along with others upon the complainant party, out of whom some of them have sustained injuries then prosecution should have produced medical evidence on record to substantiate the plea. Therefore, we are, prima facie, of the view that under these circumstances petitioner has made out a case for his release on bail because some doubt is visible in the prosecution case and it is well settled that benefit of doubt cannot be extended to any one also except to accused even at bail stage " (emphasis provided).
8. Upon court's query, the learned Deputy Prosecutor General has admitted that nothing has been recovered from the possession of the petitioner and after completion of investigation the report under section 173, Cr.P.C. Has already been submitted before the learned trial Court. In this scenario, in my humble opinion further detention of the petitioner in the lock-up would serve no useful purpose and non-recovery of any incriminating material from the possession of the petitioner during the course of investigation also makes his case of further inquiry. Reliance in this behalf can be placed on the case of Malik Waheed alias Abdul Waheed (2011 SCMR 1945).
9. As far as the contention of the learned D.P.-G. That the petitioner is vicariously liable for the offence is concerned suffice it to observe that the learned trial Court shall take-care of the said fact at the time of conclusion of the trial after recording evidence of the parties.
10. It is also important to note over here that the statements of the prosecution witnesses recorded under section 161, Cr.P.C. At this stage are of no help to the prosecution firstly for the reason that the said witnesses have not undergone the test of cross-examination and secondly that they were not the persons present at the time of transportation of the deceased to the hospital and the veracity of their statements would be considered by the learned trial Court at the time of conclusion of the trial.
11. For what has been discussed above, I have no hesitation in my mind to hold that the petitioner has succeeded to establish that his case falls under section 497(2), Cr.P.C. Requiring further probe into his guilt. Consequently, this petition is accepted and the petitioner is granted bail after arrest subject to his furnishing bail bonds in the sum of Rs,2,00,000 (rupees Two Lacs only) with one surety in the like amount to the satisfaction of the learned trial Court.