2009 P Cr (PLP)

HASNAT AHMAD KHAN, J.

Petitioner has sought post-arrest bail in case F.I.R. No.148 of 2007 dated 1-8-2007 registered with Police Station Kassoki, District Hafizabad in respect of offences under sections 302/147/149, P.P.C.

2. This is second application for post-arrest bail, the first one was dismissed as withdrawn vide order, dated 11-10-2007 since earlier application was not dismissed on merits, therefore, there is no legal bar against the decision of the application in hand on merits. In this regard, I am pinning my faith on the case of Muhammad Riaz v. The State 2002 SCMR 184.

3. Brief facts of the case, as narrated by Muhammad Sharif complainant, are on 1-8-2007 at about 5 p.m. he (complainant) along with his mother namely Irshad Bibi (deceased) was working in the fields when Abbas empty-handed, Baber, Imran, Hanif and Nazar Muhammad son of Allah Dad, all armed with hatchets, while Amir and Nazar Muhammad son of Pir Muhammad, both armed with Batons, came there; that Nazar raised a Lalkara that they (complainant and her mother) be taught a lesson for getting the land transferred in the name of petitioner's wife through a gift, whereafter, Abbas knocked her mother (deceased) down after clasping her tightly in his arms whereupon she lost her senses. However, later, she succumbed to her injury in the hospital. The motive behind the occurrence, as stated in the F.I.R. was that the complainant's paternal-aunt had gifted a small piece of land to her daughter, who happens to be wife of the complainant. The said act of Fatima Bibi paternal-aunt of the complainant annoyed her co-sharers, as alleged by the complainant. He further alleged that on the interference of the said co-sharer, he (complainant) got a stay order from a learned Civil Judge, which propelled the accused party to launch an attack in order to grab the possession of the said land from the complainant.

4. Learned counsel for the petitioner has contended that during the investigation the petitioner was found innocent; that the facts of the case do not attract the provision of section 302, P.P.C. as there was no mens rea or intention to kill Irshad Bibi deceased; that the facts of the case at the most attract the provisions of section 319, P.P.C. which is a bailable offence; that the petitioner had no motive to bump-off Irshad Bibi (deceased) and that the petitioner has been languishing in jail since 21-9-2007 but there is no chance of early conclusion of the trial.

5. Conversely, the learned Deputy Prosecutor-General, assisted by the learned counsel for the complainant, has opposed the bail application vehemently, contending that the petitioner is nominated in the F.I.R. with a specific role of causing fatal injury to the deceased by knocking her down; that the finding of innocence of the petitioner, as recorded by the Investigating Officer is not helpful to the petitioner inasmuch as a case under section 155(c) of the Police Order, 2002 has already been registered against the said Investigating Officer and that another F.I.R. also stands registered against the said Investigating Officer. To augment his last contention he has placed on record a copy of F.I.R. No.18 of 2008, dated 15-9-2008 registered with Anti-Corruption Establishment Hafizabad in respect of an offence under section 161, P.P,C. read with section 5 of the Prevention of Corruption Act, 1957.

6. After hearing the respective learned counsel for the parties and going through the record, I have straightaway observed that there was a dispute between the complainant and the accused over a piece of land. According to the contents of the F.I.R. it was the complainant who was target of aggression by the accused but despite the fact that he was available at the time of occurrence, he was not given even a scratch by the accused. A perusal of the contents of the F.I.R. further reveals that though seven persons, who were wielding hatchets and batons respectively, had attacked the complainant party in order to grab the possession of land from him but none of the said weapons was used effectively by any of them. According to the Investigating Officer, the occurrence did not take place in the manner, as alleged by the complainant, rather, Irshad Bibi (deceased), who was running to the place of occurrence, stumbled and fell on the ground, which resulted into a fatal injury on the back of her neck. For reaching the said conclusion the Investigating Officer recorded the statements of scores of people of the said vicinity.

7. It is true that opinion of the police is not binding on the Courts but it is equally true that while deciding a bail application the opinion of the police can be taken into consideration validly, provided the same is based upon sound material. As a matter of fact, in view of the judgment of the Honourable Supreme Court, rendered in the case of Muhammad Sadiq v. Sadiq and other PLD 1985 SC 182, an accused after having been found to be innocent by the police, becomes entitled to bail as a matter of right. Insofar as the F.I.R. No.18 of 2008 is concerned, same does not show that it was registered against the investigator due to defective investigation conducted by him, rather allegation against him is that of receiving bribe for arresting the accused.

8. Admittedly, during the occurrence, no traditional weapon of offence was used by the accused to knock Irshad Bibi's (deceaseds'), block off, rather, she was allegedly knocked down by the petitioner after holding her in his clasp. In this view of the matter the question, as to whether the petitioner would ultimately be convicted under section 302, P.P.C. or would he be held guilty under section 319, P.P.C., which is a bailable offence, would be determined after conclusion of the trial. So, a doubt about the applicability of section 302, P.P.C. in this case is lurking. Benefit of doubt can be given even at the bail stage. Therefore, the case of the petitioner requires further enquiry within the meaning of section 497(2), Cr.P.C., to say the least.

9. Consequently, the petition in hand is accepted and the petitioner, who has been suffering incarceration for the last one year, is granted the concession of post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./A-120/L Bail granted.