' The petitioners Muhammad Iqbal and Zulfiqar through this Criminal Miscellaneous No,1847/B of 1995 seek their post arrest bail in a case registered against them along with other co-accused under sections 302/337A(II) & 337-L(II)/34/148/149, P.P.C. With Police Station Shorkot City, District Jhang.
2. The allegation against the petitioners is that Muhammad Iqbal petitioner armed with revolver and Zulfiqar accused armed with hatchet along with other co-accused caused death of Muhammad Nawaz deceased. It is alleged that Zulfiqar accused caused hatchet blow on the right side flank of the deceased; while petitioner Muhammad Iqbal fired at the deceased twice when he was lying on the ground after receiving injuries and the deceased received two fire-arm injuries on the front side of his neck; the declassed succumbed to his injuries at the spot.
3. The learned counsel for the petitioners contended that out of six nominated accused; two have been found innocent; previous enmity is admitted and there is every chance of involving the petitioners innocently; further vehemently contended that Injury No,12 attributed to petitioner Zulfiqar is an abrasion and cannot be caused by hatchet; while injuries Nos. 8 and 9 attributed to petitioner Muhammad Iqbal are also abrasion; which cannot be fire-arms injuries.
4. Conversely, the learned counsel for the complainant and learned counsel for the State opposed the petition and submitted that the opinion of Investigating Officer has no binding force on the Court in deciding the bail petition and the deeper appreciation of evidence cannot be gone into at this Stage.
5. I have heard the arguments of learned counsel for the parties at length and have perused the record with their able assistance.
6. Learned counsel for the petitioner's contention that the medical evidence being at variance with eye-witnesses account of occurrence is a sufficient ground for granting bail and relied upon case Abdul Qadir v. The State (1980 PCr.LJ 397). Further, relied upon case reported as Raees Azam and 2 others v. The State and another (1995 PCr.LJ 541) Peshawar, wherein in view of medical report; which contradicted the version of the complainant; bail was granted; further relied upon another case Wali Muhammad v. The State (1995 PCr.LJ 310 Lahore) wherein role attributed to accused was not supported by post-mortem report, bail was granted.
7. True, there is no legal or moral compulsion to keep an accused in jail merely on the allegation that he had been mentioned in the F.I.R. And had committed a murder unless reasonable ground appear to exist and it is also well-established principle of criminal jurisprudence that law should not be stretched in favour of the prosecution if any benefit of doubt arises, it must go to the accused as contended by the learned counsel for the petitioner.
8. While it has been observed in case Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. The question of grant of bail or refusal as observed in case supra, is to be determined judicially having regard to the, facts and circumstances of each case. Where the prosecution satisfied the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the category of offences punishable with death, or imprisonment for life or imprisonment for ten years, the Court must refuse bail.
9. The question whether or not the petitioners caused any injury to the deceased or there is variance in medical evidence with ocular evidence; would of course, be determined during trial on the basis of evidence of the parties as observed in case Nawaz alias Manga and another v. The State (1994 PCr.LJ 2511 Lahore). The same view was observed in case Shahzar Khan v. The State (1992 PCr.LJ 394 Peshawar) wherein it was argued that medical evidence and site plan had contradicted ocular evidence but was observed that this argument could not be subjected to detailed scrutiny at bail stage.
10. The petitioners have been specifically named in the F.I.R. With clear role in the commission of the crime. The F.I.R. Was promptly lodged against the petitioneRs, They were armed with revolver and hatchet with which they committed the murder of deceased in a brutal manner. The contention that the police found two nominated accused in F.I.R. As innocent; would not entitle the petitioners to be released on bail as it is well-settled that the opinion of the police about innocence of accused or some accused does not bind the Court. The petitioners have been found guilty by the police; recovery of incriminating articles have been made and motive is also there.
1L In view of the above discussion, I am not minded to exercise my discretion in allowing bail to the petitioners who are accused in a murder case with serious allegations. Against them. The petition is, therefore, dismissed being without any merits.