2004 PLP 1541 (MLD)

In support of this petition, learned counsel for the petitioner submits that Mian Arshad Iqbal, Advocate had died due to heart attack, that the doctor who conducted the post-mortem examination on the dead body of the deceased deferred the cause of death and sent the viscera and other material to the office of Chemical Examiner and Bacteriologist. Adds that there is no corroboration of the oral testimony to the postmortem report. As far as, section 397, P.P.C. Is concerned, learned counsel submits that there is no specific allegation against the petitioners that they were the persons, who had taken away cash amounting to Rs.40.000 and two Mobile Phones. Adds that petitioner's party belongs to Pakistan People Party while the coniplainant party belongs to Pakistan Muslim League (Q) that it is a political motivated case. That petitioner have joined the investigation, nothing is to be recovered from them andtheir case is of further inquiry falling under subsection 2 of section 497, Cr.P.C.

2. On the other hand, learned Addl. A.-G. Submits that as far as section 302, P.P.C. Is concerned, ocular account is not corroborated bymedical evidence, as the reports of Bacteriologist and Chemical Examiner shows the same but the ocular evidence is there to support the version of prosecution and the incident has definitely aggravated the heart ailment of the deceased. As far as, section 397, P.P.C. Is concerned, he submits that maximum sentence is seven years and recoveries are yet to be effected from the petitioner, so they are not entitled for the grant of bail before arrest.

3. Learned counsel for the complainant submits that the doctor while conducting the post-mortem examination found congestion on the different organs of the body of the deceased and it was due to the injury and scuffle, which took place between the parties, that accused party is very influential, that one of the co-accused, namely, Dr. Asad Moazzam is real brother of Shehzad Muazzam petitioner, who,is also MPA, from PPP, he used his influence and got this false report from the doctor who conducted post-mortem examination on the dead body of the deceased, that this is a bail before arrest and consideration for the grant of bail before arrest and after arrest are totally different. Adds, that Ashfaq petitioner is already involved in 10 criminal cases. Further submits that not only the deceased received the injury but complainant was also injured in this case, that offence alleged against the petitioners fall within the ambit of section 497(1), Cr.P.C. And they are not entitled for the grant of bail before arrest. He has relied upon PLD 1988 SC 97.

4. I have heard learned counsel for the parties. Complainant in this case is Mian Saeed real brother of Mian Arshad deceased. In the F.I.R. it was stated by the complainant that seven accused whose names have been given in the F.I.R. Alongwith 15/20 persons attacked on the complainant and his deceased brother, injured them, thereafter, they snatched two mobile phones and Rs.40,000 from the complainant party. Occurrence in this case took place on 28-3-2004, while matter was reported to the police on he same day but till today no medical examination of the complainant has been got conducted. The post-mortem report certified copy of which has been placed on record reveals that there was no injury on the person of the deceased, the doctor could not give the opinion and deferred the cause of death till the receipt of reports of Chemical Examiner and Bacteriologist. Report of Bacteriologist and that of Chemical Examiner has been placed on record. According to the report of Chemical Examiner no poison was detected in theviscera. As far as report of Bacteriologist is concerned, that's, reproduced below:- "Histological Feature.--Histological examination of heart sections reveals advanced atherosclerotic changes in the cornories. The myocardial sections reveals areas of fibrosis. These features are suggestive of Active Ischeemic Heart Disease. The lung sections are unremarkable. The meninges are slightly congested. The brain tissue is unremarkable." Prima facie it is apparent that there was no injury on the person of the deceased and he died due to heart failure. Even the learned Addl. A.-G. To be very fair is unable to rebut this fact. Now as far as, section 397 is concerned, seven persons alongwith 15/20 persons are named in the F.I.R. But it was not mentioned that specifically who attacked on the deceased and the complainant, moreover, who was the person who had snatched two mobile phones and Rs.40,000 from the complainant party. It is correct that offence alleged against petitioners is punishable with death or imprisonment for life and it is a bail before arrest but the Court has to see whether the involvement of the petitioners prima facie is proved from the F.I.R., post-mortem report and the.Other documents on record or not and moreover, it has not been denied that both the parties belonged to rival groups. It is, important to note here, that complainant party belongs to Pakistan Muslim League (Q) and accused/petitioners belongs to Pakistan Peoples Party so in these circumstances of the case, how the petitioners could influence that doctor who conducted the postmortem examination on the dead body of the deceased, there was so many remedies with the complainant party, they could have given an application for re-conducting post-mortem examination through Medical Board and they could have also filed the complaint against the 'police for not getting the medical examination of the complainant, although about 25 days have elapsed. Petitioners have also joined the investigation. To my mind, life and liberty of the citizens is too much important, no person can be deprived of this precious liberty, unless allegations levelled against him are prima facie proved from the record. In the instant case, prima facie this Court is of the view that these allegations' against the petitioners are not proved from the record in hand after making tentative assessment of the evidence. After having heard the learned counsel for the parties, going through the F.I.R., post-mortem report, report of Chemical Examiner and report' of Bacteriologist, I am of the considered opinion, that case of the present petitioner is of further inquiry falling under subsection 2 of section 497, Cr.P.C., therefore, interim bail already granted to the petitioner is hereby confirmed by accepting this petition. H.B.T./S-96/L Interim bail confirmed.