1. Applicant Qurban Ali alias Fouji, who is involved in Crime No. 23 of 2005, Police Station Sehwan, under Section 302, P.P.C. on the basis of statement of complainant recorded on 8-5-2005, has moved this application for grant of bail.
2. Facts of the prosecution case are that on 8-5-2005, P.Ws. Behram Khan and Waryal alongwith his son deceased Bahadur Khan were going along railway track at night, they heard fire-arm shot.
3. After opening torchlight they saw three persons duly armed with fire-arm weapons and hatchet, in the meanwhile. P.Ws. saw Bahadur Khan after raising cries fell down on the ground. According to both P.Ws. those culprits after causing injury to his son and had run away from the spot. The injured was taken to police station and therefrom he was taken to hospital.
4. Contention of learned counsel for applicant is that report of the incident was lodged on 8-5-2005 but names of the culprits have not been shown in it though, according to both P.Ws., they had seen them in torch light duly armed with weapons and can identify them. In spite of this, statement of P.Ws. after arrest of the applicant on 22-5-2005 no identification parade was held, nor prosecution was able to collect any evidence against the applicant, therefore, request of Investigating Officer for further remand was declined by the learned Judicial Magistrate relying on 2000 M LD 921 and accused was discharged under Section 63 of Criminal Procedure Code on 26-5-2005. However, an opportunity was given to the Investigating Officer to re-arrest the applicant, if he collects sufficient evidence against him during the course of investigation.
5. Record shows that on the very day i.e. 26-5-2005, 161, Cr.P.C. and 164 Cr.P.C. statements of prosecution witnesses were recorded wherein applicant was named as culprit of the incident with recovery of crime weapon on 1-6-2005. Identification parade too was held on the very next day on 27-5-2005, which shows haphazard manner of prosecution while conducting the investigation.
6. Apparently, the case as made out by prosecution against this applicant after his re-arrest on 26- 5-2005 and his bail was declined just because of recovery of crime weapon after nine days of his arrest and 23 days of the alleged incident.
7. From the perusal of record it appears that except recovery of crime weapon no overt act is appearing in against to this applicant, nor contents of F.I.R. disclose that out of persons, who were seen by the P.Ws. at the place of incident, he is the main culprit who caused injury to deceased as neither the medico-legal report, nor ballistic reports have been placed on record to show the number and nature of injuries caused to deceased. In absence of ballistic report, it is yet to determine that whether it was the same crime weapon recovered from the possession of this applicant, which was used in the commission of offence.
8. It is further urged by learned counsel for applicant that co-accused who too was shown duly armed with deadly weapons at the place of incident has been released on bail, and as the case of this applicant is also on the same footing, therefore, he is also entitle for grant of bail.
9. The irregular way of investigation makes the case of prosecution doubtful. Benefit of which is bound to extent to the applicant, because the principle of coming in Court with clean hand is not limited only to the accused person, prosecution is also bound by it.
10. In view of foregoing reasons being a case of further inquiry the applicant is allowed to be enlarged on bail subject to furnishing solvent surety in the sum of Rs.2,00,000 (Rupees two lac) and P.R. bond in the like amount to the satisfaction of learned trial Court.