' HASNAT AHMAD KHAN, J.---The petitioner seeks bail after arrest in case under sections 302, 380/324, 148/149, P.P.C. Registered vide F.I.R. No,113, dated 10-7-2005 at Police Station City District Rajanpur.
2. The allegation against the petitioner and his co-accused as levelled by the complainant namely Sadheer Ahmad is that on the right of 9-/10-7-2005, the petitioner committed theft in the house of the complainant and ran away. The complainant party stated search of the culprits in the light of torches. During the chase, the complainant party was confronted with six accused. The person who was armed with a gun fired but fortunately nobody was hit. Haji Gabol tried to apprehend him upon which he gave "butt" blows on the head of Haji Gabol as a result of which he died.
3. The petitioner applied for bail after arrest but the same was refused by the learned Additional Sessions Judge, Rajanpur vide order, dated 5-9-2006 which has necessitated the present petition.
4. Learned counsel for the petitioner has contended that the petitioner was not named in the FIR; the description of the accused/petitioner as given in the F.I.R. Being totally vague could not be made a base for his identification; Mureed Hussain and Ghulam Shabbir co-accused have already been allowed bail vide order, dated 20-4-2006 and 6-7-2006 passed in Criminal Miscellaneous Nos. 436-B/2006 and 1949-B/2006 respectively and on the basis of principle of consistency the petitioner is also entitled to bail.
5. The learned state counsel assisted by the learned counsel for the complainant has opposed this bail application on the ground that during the identification parade, the petitioner was correctly identified by the eye-witnesses and recovery of gun and some gold ornaments has beeneffected at the instance of the petitioner.
6. I have heard both the parties at some length.
7. It has been straight away observed that the petitioner was not named in the F.I.R. The record shows that the petitioner was primarilyinvolved in this case on the basis of the statement of co- accusedon 12-7-2005 which is not admissible in evidence. It has been noticed that the complainant is resident of Basti Sirki while the petitioner is resident of Mouza Jahanpur which according to Muhammad Iqbal, A.S.-I. Who is present in the Court with record is situated at a distance of 1/2 or 3/4 Kilometers from Basti Sirki. The normally villagers residing in the adjoining "abadies" are known to each other and in this backdrop fact of non-mentioning of the name of the petitioner in the F.I.R. Is very significant and cannot be lost sight of.
7A. Another piece of evidence which has been relied upon by the prosecution is the supplementary statement of complainant which was recorded on 31-7-2005. It would be pertinent to point out here that said statement was recorded after holding of identification parade. In said statement the allegation of causing of injuries to the deceased at the hands of the petitioner has not been levelled at all. This fact also makes the case as that of further inquiry. Furthermore it is a night time occurrence and according to the complainant, the accused were search and identified in the light of torches. The description of the person armed with the gun was given as person having a beard.
Apart from that barring the colour of his clothes no description of features of said person was given in F.I.R. As such the identification of the accused at the time of identification parade is also open to serious doubts especially when the accused at time of such parade had stated that before the parade they were kept in police custody for ten days and were shown to the witnesses. Though it would be for the trial Court to determine this question after the conclusion of the trial, yet tentative assessm ent can be made at the bail stage. It is settled law that benefit of doubt can be given even at bail stage.
8. Prima facie all the facts mentioned above make the case as that of further inquiry. Apart from that it is observed that the petitioner was rested on 18-7-2005 but the early conclusion of the trial is not in sight.
9. For all the reasons mentioned above, the petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds of Rs,1,00,000 (Rupees One Lac) with one surety in the like amount to the satisfaction of the learned trial Court.
Before parting with the order, it is observed that the observations made in the bail granting order are tentative in nature and the trial Court would decide the case without being influenced by the same.