1. The present is an application on behalf of five persons the first-named being Jumo who are undergoing committal proceedings in respect of the murder of one Shaman. Since the case is pending and the learned Assistant Advocate-General has repeatedly emphasised, observations of this Court even if not intended to influence the mind of a Magistrate may be so construed and I propose to deal with the allegations as lightly as the duty of deciding this bail application permits me.
2. It is an admitted position in this case that Shaman and others were brought to the police station by the present accused party who alleged that the deceased party had come and committed theft of their cattle and that in the course of that incident some persons had been injured on both sides.
3. Shaman was actually brought to the police station by the present accused party and was alive but died later in the hospital. The F. I. R. Was lodged on the 14th of May 1992 at 7-00 p. m. Subsequently Shaman died and upon the 15th of May. 1972 at 2-30 p. m. a counter F. I. R. Alleging among other things an offence under section 308 against the applicants was lodged. Of coarse by reason of the death of Shaman the case then fell under section 302.
4. It is, therefore an admitted position in this case that, whether or not the story put forward by the present accused be true, they at any rate brought hits to the police station on that charge and the question, therefore, worthy of examination in this case is whether in the terms of section 497 and in view of a number of cases in which their Lordships of the supreme Court lave explained the meaning of the relevant provision, bail could be granted. The case bas not yet been committed to the Court of Session but even if it were it was laid down in P I. D 1966 SC 1003 that the mere existence of an order of commitment for trial need not be equated with the findings that "there appear reasonable grounds for believing that the respondents were guilty of an offence punishable with death or transportation life. " It is only a prima facie case their Lordships held which must be deemed to exist on the basis of the order of commitment. In other words the criterion for the examination of evidence for commitment and that for the grant of bail is not the same.
5. I am also referred by learned counsel for the appellants a decision eel` the Supreme Court reported in PLD 1972 SC 277 where the High Court having refused bail without examining the question whether a right of private defence would apply refused to interfere but directed the petitioner to renew his application before the High Court who would consider the whole case for the purpose of bail on the available data. Their Lordships went on to remark that even for the purposes of bail the law is not to be stretched in favour of the prosecution and the benefit of doubt must go to the accused.
6. Now in the present case according to the prosecution the wounds were inflicted upon the deceased by Jumo and one Sharfoo who is absconding. As to the others it is not alleged that there is any evidence that they inflicted the blows but only that they instigated if that be the position then prima facie it is difficult to see how section 34 or section 149 would be applicable to their cases and prima fade again a serious question at least as to the right of private defence does arise and would have to be examined. Even sit to Jumo learned counsel says--and this is of course correct- that then: is a conflict of testimony as to whether he took part or not.
7. Now as to Jumo since there is evidence which if believed would lead to a conviction. I do rust think it tight to hold that be would be entitled to bail but w; to the others on the criteria which I have indicated I think they ought to be released on bail. It must be understood very clearly that any examination of the case that I have done merits has been for the purposes, of bail and bail only. As I have already pointed out the criteria for determining bail and for committing the accused person to the Court of Session are not the same. It must clearly, be understood by the Courts below that these remarks arc not at all relevant to their consideration of the case, either for the purposes of commitment or if there is commitment for final decision in the case.