This is an application for bail under section 498, Cr. P. C. By Mansha. Yousuf and Shahdat petitioners. They are accused along with Habib and Sadiq of offences under sections 148 and 302/149, P. P. C.
The facts of the case briefly are that the five accused (including the three petitioners) armed themselves with fire-arms and in prosecution of the unlawful assembly that they had formed, they attacked and caused the dead? Of Ghulam Abbas deceased. The allegation against Habib co- accused and Sadiq (absconder) is that they had fired at the deceased while the allegation against the present three petitioners is that they merely aimed their firearms at the deceased and Yousuf petitioner is also said to have raised a lalkafa. There, were two successive investigations in this case. In the first investigation the police found the three petitioners to be innocent. The second investigation was then ordered at the request of both the parties. In the report dated 5-6-73 submitted by the second Investigating Officer they were again declared to be innocent. Another report was, however, sub--mitted on the next day in which all the five persons were recommended for challan. The D. S. P. Concerned had also gone through the case as some respectables of the village had stated that only Habib and Sadiq were in fact responsible for the murder. The D. S. P.
Expressed the view that if Habib makes a statement to that effect before a Magistrate then only Habib and Sadiq should be challaned otherwise all five of them should be challaned. Sine Habib co-accused refused to make a confessional statement before the Magistrate, all the five accused, including the three petitioners were challaned.
3. The learned counsel for the petitioners submitted that the earlier bail application of the petitioners (Cr. Misc. No. 873/C of 1973) was dis--missed on 25-3-73 because at that time the second report had not yet been available. He contended that the fact that the petitioners were declared to be innocent even by the second Investigating Officer is a new factor, en--titling the petitioners to apply for bail once again.
It is admitted by the learned State counsel that they were found to be innocent by both the Investigating Officers. But he contended that since the Police had in fact challaned them as well as the two co-accused the petitioners cannot be given the benefit of having been declared innocent by the Investi--gating Officers,
4. The learned counsel for the petitioners pointed out that although all the five accused are said to have wielded the firearms and the deceased is said to have been shot at by two of thetas, the post-mortem examination revels incise, injuries on the person of the deceased which have not at all beta explained either in the F. I. R. Or by the prosecution witnesses in their statements under section 161, Cr. P. C. He submitted further that although the police had reached the place of occurrence shortly after the occurrence none of the eye-witnesses was available and therefore two of them, namely, Ghulam Sabir and Muhammad Younas P. CVs., had to be called and examined on the next day while Muhammad Sharif the third eye-witness was examined after four days. He submitted that this casts doubt on the prosecution case.
5. No doubt the view of the police is not binding on the Court but is certainly a factor that can be taken notice of and wherever the circum--stances of the case indicate that there is substance in the report bail can be granted to the accused. As already pointed out, according to the F. I. R. And the eye-witnesses the accused/petitioners had used only fire-arms to kill the decease), yet the post-mortem examination has revealed incised injuries---t some of which were grievous. This casts a serious doubt on the prosecution case. No doubt, if the testimony against the petitioners to the effect that they bad only aimed their weapons at the deceased or that Yousuf petitioner had raised a lalkara is believe) it would be enough to make them vicariously by liable for the main offence. But in view of the circumstances mentioned above one has to see whether implicit reliance can be placed on the prosecu--petition witnesses who made the aforementioned allegations against them.
6. In view of the circumstances mentioned above, namely, the two investigation reports declaring the petitioners to be innocent together with the fact that some incised injuries were found on the body of the deceased which have not at all been explained by the prosecution, I think it is a fit case for grant of bail to the petitioners. They are, therefore, granted bail in the sum of Rs. 15,C00 (Rupees fifteen thousand) each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner.