1. NAM HASAN SHAH, J.--This petition for special leave to appeal is directed against the order dated 26-7-1978 of a learned Judge of the Lahore High Court, whereby bail was refused to the petitioners.
2. The petitioners and two others are accused of committing the murder of Muhammad Nawaz, while he was asleep, on the night between 9/10th November, 1977. The first information was recorded at the instance of the brother of the deceased, Sheikh Muhammad (hereinafter referred to as the complainant), in the morning according to which he had seen the petitioners who were armed with guns killing the deceased. The other two accused were stated to be armed with hatchets, but no overt act was attributed to them and they were allowed bail by the High Court.
3. The complainant subsequently resiled from his version as given in the First Information Report by making a statement under section 164, Cr. P. C. That the persons accused by him were innocent, they had falsely bee implicated and he himself learnt of the incident only in the morning ; his affidavit to the same effect was also attached with the bail application in the High Court.
4. Muhammad Sharif, an eye-witness according to the F. I. R., and the mother and sister of the deceased have also sworn affidavit to vouch for the innocence of the petitioners and their co- accused. Before the High Court reliance was also placed on a writ petition filed to complain of the unhappy manner in which the investigation of the case had proceeded.
5. The High Court allowed bail to the co-accused, but declined the petitioners this concession on the ground that notwithstanding the above there was other ocular evidence which included two eye- witnesses, together with the recovery of the guns and other circumstances and, therefore, it could not be said that there were no reasonable grounds for believing that the petitioners had committed the murder. The plea that the case was one of "further enquiry" entitling the petitioners to bail under section 497(2), Cr. P. C. Was rejected. The High Court also, and this in our view correctly, observed that the question whether identification of the accused was possible on the fateful night required a deeper appreciation of evidence for which neither the stage had arrived nor the bail proceedings were the proper forum.
6. But without commenting as to what weight, if any, can and ought to be attached to the aforementioned statement of the complainant and the affidavits relied upon by the petitioners in support of his plea for bail, we are inclined to think that at this stage at least it is difficult to say if the petitioners have committed the offence, more particularly when the complainant himself seems at the moment to disown the prosecution case. In the circumstances of this case we think that the case of the petitioner is one of "further enquiry" under section 497(2), Cr. P. C. The petition is, accordingly converted into an appeal and is hereby allowed. The petitioners/ appellants will be released on bail subject to their furnishing security in the sum of Rs. 20,000 each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner concerned.