RAJA MUHAMMAD SABIR, J. - Petitioners, Ali Muhammad, Ballia and Ali Sher seek their post arrest bail in a case r registered against them and others under sections 302/34/109 PPC with Police Station Gogera District Okara vide F.I.R. No. 356/95 dated 25-8-1995.
2. Brief Facts of the case are that Muhammad Nawaz complainant, who is Reader of D.S.P. Okara lodged above-mentioned F.I.R, against unknown culprits stating that they killed his brother Akbar Ali at 3.00 A.M. On 25.8.1996. During the investigation it was stated by Muhammad Nawaz and Anwar Ali P.Ws that they were sleeping on the roof of the house which is situated in neighbourhood of the house of the complainant, and they had seen Ali Muhammad empty handed, Balia armed with gun, Ali Sher empty handed and Mohabat son of Ali Muhammad armed with Kapa at the spot.
The specific allegation of above said two witnesses against the petitioners and their co-accused is that Ali Muhammad and Ali Sher caught the deceased from his hands and feet and Balia gagged his mouth whereas fatal blow was given by Mohabat with Kapa, Mohabat co-accused of the petitioner has not applied for his bail.
3. Learned counsel for the petitioner submits that it was a blind murder and the complainant being Reader of the D.S.P, has manoeuvred to get the petitioners challaned in the above said case. He further submits that the petitioners are in jail since 13-9-1995 and the trial of the case has not been concluded so far despite expiry of more than I6 months. He further argues that as per F.I.R, the deceased was murdered at 3.00 a.m. (Night) when he was sleeping while the allegation against petitioners Ali Muhammad and Ali Sher is that they caught hold of him from his arms and feet respectively and Balia gagged his mouth whereas Mohabat gave fatal blow to him with Kapa. He maintains that as the deceased was sleeping, there was no need for the accused to catch his hands and feet and gag his mouth, therefore, the allegations against the petitioners warrant further inquiry, and as such the petitioners are entitled to be released on bail.
4. Learned State counsel has opposed the bail application on the ground that the petitioners have been placed in column No. 3 of the challan and their trial has commenced. Thus they are not entitled to grant of bail.
5. I have heard the learned counsel for the parties and have gone through the record. The occurrence is of blind nature. Petitioners are not named as accused in the F.I.R. The veracity of statements of Muhammad Nawaz and Anwar Ali PWs can only be determined after recording of their evidence by the learned trial Court. Ali Muhammad & Ali Sher were empty handed and they allegedly caught hold the deceased from his hands and feet. Balia although was allegedly armed with l2 bore gun had not used it and allegation against him is that he gagged the mouth of the deceased at the time of occurrence which took place at 3.00 a.m. (night) when deceased was sleeping in the court-yard of the house whereas the said witnesses were sleeping on the roof of adjoining house. It cannot be said with certainty that the said occurrence has in fact been seen by Muhammad Nawaz and. Anwar Alt PWs in the manner alleged by the prosecution. Thus the guilt against the petitioners needs further inquiry.
4. Accordingly the petitioners are admitted to bail in the sum of Rs. 50,000/- (fifty thousand) each with one surety each in the like amount to the satisfaction of trial Court. The petition is accordingly allowed.