1. ' This application for bail has been filed by Muhammad Saleem, petitioner in a case registered vide FIR No, 118/88, dated 23-4-1988 at P.S. New Multan, under section 304/34, P.P.C.
2. According to the prosecution story the petitioner and Allah Bakhsh, co-accused had caught hold of Ahmad Yar, deceased and Zulfiqar alias Bhola had given Chhuri blow on his abdomen which resulted in his death. The motive alleged in the FIR is that one day before the occurrence an altercation had taken place between Muhammad Zafar brother of the deceased and Allah Bakhsh co-accused over the sale of Soda water bottles.
3. The learned counsel for the petitioner contends that the case against the petitioner requires further probe and inquiry. He submits that in the investigation conducted by the DSP it was established that the petitioner and Allah Bakhsh, co-accused were not present at the time of the alleged occurrence. He further submits that the petitioner is not connected with the motive. The petitioner was empty-hand and a mere Japhha was attributed to him. The allegation of Japhha is doubtful and even if true, the same is not enough to prove that the petitioner shared the intention to kill. He relies on 1976 PCr.LJ 758, 1981 PCr.LJ 1102, 1981 SCM R 894, 1981 SCM R 850 and 1978 SCM R 357.
2. ' On the other hand, the learned counsel appearing for the complainant as well as the learned Assistant Advocate-General opposed grant of bail in the case on the ground that the occurrence had taken place in the broad day light and a specific role had been attributed to the petitioner in the commission of the offence. It is contended that the case is fixed for evidence in the trial court in the month of January, 1989. Hence bail should not be granted at this stage. It is also contended that the prosecution case shall be prejudiced if the merits of the case are examined. In support of their contentions they relied upon 1979 SCM R 65, 1985 PCr.LJ 744,1985 SCM R 382 and 1980 SCM R 203.
3. ' It is evident from a perusal of the FIR that the altercation which took place On 2-4-1988 was between Muhammad Zafar brother of the deceased and Allah Bakhsh co-accused (who was found innocent' during the investigation). The petitioner is not in any manner connected with the motive part of the prosecution story. On the fateful day, Ahmad Yar deceased had allegedly told Allah Bakhsh co-accused that he should give some space to Muhammad Zafar for doing the business of selling bottles. The deceased complained to the co-accused that one day earlier he had done a wrong to Muhammad Zafar. Thereafter, the three accused allegedly raised Lalkara and attacked the deceased.
4. ' It is significant that in the investigation conducted by the DSP on 9-5-1988 as well as the one conducted by the S.I. Allah Bakhsh co-accused was found to be innocent and his name was placed in column No,2 of the challan. The witnesses who deposed in favour of Allah Bakhsh had also stated that even Muhammad Saleem petitioner was not present at the spot and that the allegation of holding the deceased physically was not correct. The finding of innocence, though given in favour of Allah Bakhsh alone, creates some doubt about the presence of the petitioner as well because the material about both the accused is the same. The benefit of every doubt has to go to the accused even at the bail stage. The FIR does not clearly indicate the manner in which Muhammad Saleem petitioner or Allah Bakhsh co-accused had allegedly held Ahmad Yar deceased. The further question whether it was at all necessary for the two persons to catch hold of the deceased to enable Bhola accused to give knife blow to the deceased on his abdomen also requires further probe and inquiry. It was held in Shahid Iqbal v. The State (1976 PCr.LJ 758) "The solitary blow is said to have been inflicted on the deceased. It is yet to be seen whether it was necessary for two persons to have held the deceased, when their co-accused allegedly inflicted one blow. It would not have taken more than a second for the infliction of one blow. The question whether the other two accused, in reality did secure the deceased by one arm needs further inquiry". In Jamshaid and others v. The State (1981 PCr.LJ 1102) it was held that question of vicarious liability and the fact as to whether or not they shared the intention of the co-accused to murder Farooq Hasan are the matters which can be more appropriately determined at the trial. In Basharat Hussain v. Ghulam Hussain (1978 SCM R 357) the High Court had granted bail to an accused who had held the deceased and thus alleged to have facilitated the commission of murder. The said order was maintained by the Supreme Court and leave to appeal was refused. In a similar case Muhammad Nisar v. Muhammad Arshad and another (1981 SCM R 894) the Supreme Court had refused to grant leave to appeal and maintained the order of High Court granting bail to an accused who had held the deceased in Japhha.
5. ' The judgments relied upon by the learned counsel for the complainant are distinguishable. In Habibullah Khan v. Mir Ali Khan and others (1985 PCr.LJ 744) it was held that the mere ground that the accused was attributed the role of catching hold of the deceased and other had inflicted the fatal injury was not sufficient for holding the case to be one of further inquiry. In the present case, there are other factors as well which make the case to be one of further inquiry; firstly the petitioner is not connected with the motive and secondly in the investigation conducted by the police Allah Bakhsh co-accused was found to be innocent although some witnesses had deposed against him.
6. In Ibrahim v. Hayat Gul and others (1985 SCM R 382) the prior conditions for granting bail on the ground of further inquiry have been laid down. On facts, the said judgment is not relevant in the present case. The case of Mst. Barkat Bibi v. Gulzar and another (1979 SCM R 65) relied upon by the learned counsel for the complainant is also distinguishable on facts. In Barkat Bibi's case Gulzar accused, accompanied by Kala co-accused armed with a dagger had entered the Deorhi of the complainant. Gulzar accused physically dragged Mst. Perveen Akhtar out of the Deorhi and then caught hold of her and Kala co-accused inflicted three blows with his dagger causing her death at the spot. In this case there was no doubt whatsoever that Gulzar accused was present at the spot and had initially dragged the deceased out of her house and then held her enabling his co- accused to inflict three daggar blows to her. In this view of the matter the bail allowed by the High Court was cancelled by the Supreme Court. In Muhammad Sadiq and others v. The State (1980 SCM R 203) the Supreme Court declined to go into the merits of the case at bail stage and refused leave to appeal because the date for holding the trial had been fixed. The said case pertained to an offence under section 120-B PPC for conspiracy to murder Nasim Kharal, Advocate and there existed a confessional statement of Saleh, petitioner before the Court and also confessional statements of three other co-accused. Moreover, the accused had been responsible for causing delay in the trial on the pretext of engaging some counsel or to file an application for transfer of the case etc. In that background the Supreme Court refused to enter into merits of the case as the trial was going to commence soon.
7. ' It is true that the case is fixed for the prosecution evidence in the month of January, 1989. But this fact alone cannot disentitle the petitioner to claim bail. The present case is one requiring further probe and inquiry into the guilt of the petitioner. Once it is found that the case of the accused person is covered by subsection (2) of section 497 of the Cr.P.C.,then he is entitled to claim bail as of right and cannot be detained in the jail. The argument that the Court should not examine the merits of the case sounds plausible. I do not propose to enter into deeper analysis of the material on the record or give a definite finding about the guilt or innocence of the petitioner. There is no bar on a tentative appraisal of the material placed before the Court while deciding a bail application as held in Khalid Javed Gilani v. The State (PLD 1978 SC 256).
8. ' As discussed above the petitioner's case is covered under section 497 (2), Cr.P.C. And at this stage he is entitled to the concession of bail as a matter of right. There is no question of any prejudice to the prosecution case. No allegation was made against the petitioner that he would either abscond or in any manner tamper with the prosecution evidence. The observations made in this bail order are purely of tentative nature and not binding on the trial Court which shall decide the case independently without being influenced by the same.
9. ' In view of the foregoing discussion this petition is accepted, and the petitioner is allowed bail provided he furnishes bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with two sureties, each in the like amount to the satisfaction of the trial Court.