' The petitioners, Ansar son of Ahmad and Muhammad Ali son of Barkhurdar, have moved this petition for bail after arrest in a case registered against them under section 302/148/149/109, P.P.C.
At Police Station Sadar Chiniot, District Jhang vide F.I.R. No.316, dated 4-9-1988.
2. The precise allegation against the petitioners is that they while armed with guns alongwith five other co-accused, namely, Liaqat, Manzoor, Ghulam Hussain, Abid and Nawaz, committed the offence of murder of Theraj on 4-91988. The part attributed to Ansar petitioner is that of ineffective firing whereas Muhammad Ali, petitioner, is alleged to have fired from the house of Ameer Machhi which hit Theraj deceased on the forehead.
3. The Investigating Officer has given a categorical finding saying that it cannot be said with certainty as to whose fire hit the deceased Theraj during occurrence. Further, one Akber Haral was appointed as an arbitrator by the parties and as per his decision on Holy Qur'an within the premises of mosque, the complainant party is the aggressor and that it cannot be said at this stage as to whose fire hit the deceased. It was also found out by the arbitrator that Manzoor on the side of the petitioners received five injuries with fire-arm at the hands of the complainant. It is further argued that the Investigating Officer has come to a conclusion that from the house of Ameer Machhi firing at the accused party was not simply possible. The last argument of the learned counsel is that under similar circumstances the remaining five co-accused have already been allowed bail by the learned trial Court on the ground that this was a case of further inquiry.
' Mr. Walayat Umar Chaudhry, learned State counsel argued that specific date has been fixed in the case for the trial and as such the petitioners are not entitled to the grant of bail.
4. I have heard the learned counsel for the parties and have perused the record. Admittedly, Liaqat, Ghulam Hussain, Manzoor, Abid and Nawaz, co-accused have already been admitted to bail by the learned trial Court, almost under similar circumstances. It was found out by the trial Court that their case is A that of further inquiry. The Investigating Officer as well as the learned State counsel conceded that no clear distinction could be drawn in the case of the five co-accused from that of the present petitioners. In other words, the case of the two petitioners is identical with that of the co-accused already allowed bail by the learned trial Court. The contention is that Manzoor from the side of the petitioners is injured and that the fire-arm injuries on his person have not been explained by the complainant party. This is an important question worth consideration. However, it is for the trial Court to come to a conclusion one way or the other after recording the evidence, as to which party is aggressor. For the time being it is sufficient to observe that the Investigating Officer has given his opinion that nothing can be said with certainty as to whose fire hit the deceased. A mention has also been made by the learned trial Court about the decision having been made by the arbitrator in the case. The decision of the arbitrator too is alleged to have been given against the complainant party. I find that the case of the present petitioner is identical to that of the remaining five co-accused. Frankly this position has been conceded by the Investigating Officer and the learned State counsel. The case of the two petitioners too falls under subsection (2) of section 497, Cr.P.C. The fact that the trial has been fixed for its conclusion is no ground to reject the bail petition of the petitioners, if they are otherwise found to be entitled to the grant of bail. This view was expressed by the Honourable Supreme Court of Pakistan in Muhammad Ismail v.
Muhammad Rafique etc. PLD 1989 SC 585. Respectfully following the judgment referred to above, I too proceed to admit the two petitioners to bail in the sum of Rs.80,000 (Rupees eighty thousand) each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Chiniot.
' The trial Court is directed to conclude trial of the petitioners within next three months without fail.
Whatever is said, held and observed by me in this order shall not at all influence the opinion of the trial Court or the course of the trial in any manner whatsoever.