' Khadim Hussain aged about 20 years, Shabbir Hussain aged about 18 years and Nazir alias Najja aged about 16 years, real brothers inter se were arrested on the 29th of June, 1994 and are in jail ever since, in pursuance of F.I.R. No,227 of 1994, dated the 8th of June, 1994, lodged by one Muhammad Rafique a real brother of Muhammad Siddique deceased on the 8th of June, 1994 at about 12-20 p.m. And registered at Police Station Nishatabad, Tehsil and District Faisalabad under sections 302, 148 and 149, P.P.C. Regarding an occurrence which took place on the same day at about 6-30 a.m. In the area of, Chak No,48/J.B. Of Tehsil and District Faisalabad.
2. The case of the prosecution is that eight accused persons including the three petitioners variously armed launched a murderous assault upon Muhammad Siddique deceased who suffered multiple injuries and as a result thereof died the same day in the local hospital.
3. Khadim Hussain petitioner was allegedly armed with a .12 bore gun with which he fired thrice at the deceased. Shabbir Hussain petitioner was allegedly armed with a pistol with which he fired twice at the deceased. Nazir alias Najja was allegedly armed with a wooden club with which he caused injuries on the person of the deceased. The other accused persons were allegedly armed with sharp-edged weapons like hatchets and a scythe with which they inflicted. Injuries upon the person of the deceased.
4. A .12 bore gun was recovered on the 6th of July, 1994 at the instance and pointation of Khadim Hussain petitioner. A .30 bore pistol was recovered at the instance and pointation of Shabbir Hussain petitioner on the 6th of July, 1994. On the 6th of July, 1994 a wooden club was recovered at the instance and pointation of Nazir alias Najja.
5. Two empty cartridges were also recovered from the place of occurrence. According to the learned counsel appearing on behalf of the State these empty cartridges seem to be relatable to the .12 bore gun recovered at the instance of Khadim Hussain petitioner. However, learned counsel for the State is not in a position to state as to whether according to the Fire-arms Expert these cartridges were fired from the gun recovered from Khadim Hussain petitioner.
6. Learned counsel for the petitioners contends that the injury allegedly caused by Nazir alias Najja petitioner according to the prosecution is on the leg of the deceased and is simple in nature and that Nazir alias Najja is, therefore, entitled to the concession of bail. Learned counsel for the petitioners places reliance upon the case of Meeran Bux v. The State and another reported in PLD 1989 SC 347. Learned counsel for the petitioners further submits that there is a delay of about six hours in lodging the first information report and A that there is no explanation for the said delay.
According to the learned counsel for the petitioners this unexplained delay of six hours is fatal for the prosecution case. In this context learned counsel for the petitioners places reliance upon the case of Mehmood Ahmad and others v. The State and others reported in 1995 SCM R 127. Learned counsel for the petitioners further submits that three co-accused who were allegedly armed with sharp-edged weapons and caused incised wounds on the person of the deceased have already been found to have been falsely involved and, therefore, have been declared to be innocent by the Deputy Superintendent of Police and also the B Superintendent of Police of Faisalabad and that the legal effect of three co-accused having been declared innocent is that it casts a doubt on the truthfulness of entire prosecution case. In this context learned counsel for the petitioners places reliance upon the case of Muhammad Akram and others v. The State reported in 1993 PCr.LJ 329. It is further argued by the learned counsel for the petitioners that the ocular account is belied by the medical evidence because according to the ocular account five shots had been fired at the deceased but the medical evidence shows only two injuries on the arm of the deceased and as a matter of fact these two injuries on the left arm of the deceased are in fact the result of just one shot because one is a wound of entry while the other is a wound of exit. It is, therefore, contended by the learned counsel for the petitioners that the case against the petitioners is a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. Which entitles them to the grant of bail.
7. Learned counsel appearing on behalf of the State informs me that the challan has been submitted in Court since November, 1994 but the trial has not yet commenced. Learned counsel further informs me that only five persons including the three petitioners have been sent up for trial while the other three have been discharged. Learned counsel appearing on behalf of the State argued that the petitioners are named in the first information report and had been assigned specific role regarding a daylight occurrence and are, therefore, not entitled to the grant of bail.
Learned counsel also has rightly pointed out that in this case the delay of about six hours has been explained in the F.I.R. Itself wherein the first informant has stated that he took the dying man to the Hospital and was attending to him in the Hospital and that upon his death, he proceeded to lodge the first information report.
8. It is indeed true that their Lordships in the case of Mehmood Ahmad and 3 others v. The State and another reported in 1995 SCM R 127 held that in particular circumstances of that case even an unexplained delay of two hours was significant but in the same case their Lordships have also held that this would not necessarily be true in every case particularly where the delay has been explained.
9. As far as Khadim Hussain petitioner is concerned it cannot reasonably be said at this stage that reasonable grounds to believe that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not exist. At the same time I do not want to record any opinion at this stage which may prejudice his case. Yet, from the material available on the record, no case for grant of bail has been made out as far as Khadim Hussain petitioner is concerned. Therefore, the petition of Khadim Hussain petitioner is dismissed.
10. As far as Shabbir Hussain and Nazir alias Najja petitioner are concerned, prima facie the case against them seems to be a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C.
' Therefore, Shabbir Hussain and Nazir alias Najja petitioners are granted bail provided they furnish bail bonds in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate of Faisalabad.