According to the first information report which was lodged by one Fazal Elahi, son of Rajoli, on 23rd May, 1978, at Police Station, Jalal Pur Sharif with regard to an occurrence alleged to have taken place a day earlier at about Maghreb prayer, Fazal Elahi, son of Sahib Din was armed with lathi, Muhammad Asghar had also a lathi and Muhammad Younas had a barchhi. All the three accused attacked and killed Muhammad Ashraf and injured Muhammad Bashir a prosecution witness. The deceased had three injuries; two by sharp-edged and one by blunt weapon, and according to the post-mortem report the death was on account of the sharp-edged weapon.
2. Bashir had three simple injures caused by blunt weapon. From the side of the accused, Fazal Elahi and Muhammad Asghar were injured. The former had six simple injuries caused by blunt weapon whereas, the latter three simple injuries by blunt weapon. The petitioners applied for bail after they had been arrested but that was refused by the learned Sessions Judge by his order dated 4th October, 1978. They have now come to this Court.
3. The first point urged by the learned counsel for the petitioners was that all the three petitioners were found innocent during the investigation conducted by Riaz-ur-Rehman, Inspector as well as by Mirza Jalil, D.S.P. It was next submitted that the mother of the deceased did not own the incident.
It was argued that the Inspector Israr Khan held a departmental inquiry with regard to the conduct of certain officials as well as against the doctor who had performed the post-mortem report, According to the learned counsel the injuries alleged to have been received by the deceased were not ante-mortem but were post-mortem and, as a matter of fact, the deceased died natural death.
4. This petition was vehemently opposed by Mr. Aitzaz Ahsan who appeared on behalf of the complainant and submitted that the opinion of the Police Officers is not binding on this Court although it is one of the factors to be taken into consideration along with other relevant circumstances. He submitted that, no doubt, the investigation was conducted by number of Police officers but still their opinion would not have the force of law.
About the post-mortem report learned counsel argued that this is not the proper stage to determine as to whether the injuries of the deceased were ante or post-mortem. He submitted that this fact shall have to be determined in the light of the other evidence when the trial commences.
According to the learned counsel it is mentioned in the first information report that the mother of the deceased was favourably inclined towards the accused and that is why she disowned the incident.
5. Learned counsel for the State adopted the arguments advanced by the learned counsel- four the complainant.
6. This case has been investigated number of times by number officers. Last officer who conducted the investigation was Mirza Jalil, D.S.P. Who has since retired. Riaz-ur-Rehman Inspector, Crimes Branch and Israr Khan, Inspector are present. The former submitted that according to his investigation the three accused were found innocent whereas the latter admitted that he held some departmental inquiry.
Opinion of the Police Officers is not binding on the Courts. For this proposition no case-law need to be cited. Nevertheless, it is one of the factors which goes in favour of the accused but it is to be considered along with other circumstances. In the instance case the deceased had two injuries caused by sharp-edged weapon, which were attributed to Muhammad Younas, whereas, one injury caused by blunt weapon was ascribed to both Fazal Elahi and Asghar.
I am inclined to agree with the learned counsel or the complainant that this is no stage to give a specific finding about the post-mortem report or to observe whether the injuries received by the deceased were ante or post-mortem. This is also not the proper stage to take the statement of Mst.
Hassan Bibi, mother of the deceased to be the gospal truth.
Nevertheless, I am of the view that the case of Fazal Elahi and Asghar does call for further inquiry and not that of Muhammad Younas. Fazal Elahi and Muhammad Asghar are, therefore, admitted to bail in the sum of Rs. 50,000 (rupees fifty thousand :only) with one surety in the like amount to the satisfaction of A. C. Jhelum, whereas the bail application of Muhammad Younas is dismissed.