1. ' WAJIHUDDIN AHMED, J.--- As to the facts of the case, we are informed that F.I.R. No,22/1992 was registered by one Aloodo son of Rahim Khan at 19-30 hours on 15-2-1992 at Taluka Police Station, Larkana, alleging that one Wahid Bux son of Moonder Khan was killed by some unknown persons.
2. The crime case was registered under section 322, P.P.C. (Qisas and Diyat Ordinance, 1991).
3. ' Shortly thereafter (20-00 hours on 15-2-1992), at the instance of H.C. Khadim Hussain of Special Team No,2, Larkana, F.I.R. No,23/1992 was registered, at the same police station and concerning the same incident, with the allegation that Wahid Bux, the aforesaid deceased boy, was killed by dacoits in an encounter with the police but the accused named therein were Ghulam Shabbir (applicant), Muhammad Ali alias Mumtaz (applicant), Khadim Hussain, Kouro and others (unidentified). Because use of Klashnikov was also alleged, the case was registered under sections 302, 353, 324 (Qisas and Diyat Ordinance), 148, 149, P.P.C. Read with section 13-D, Arms Ordinance.
4. ' The next stage of the controversy came to transpire when, on or about 20-2-1992, a private complaint was lodged by the referred first informant Aloodo before the learned IInd Additional Sessions Judge, Larkana, on allegations that the first informant's nephew, Wahid Bux son of Moonder Khan, was killed by the police and more specifically by constables Badaruddin, Abdul Qadir and Masood, all of Police Station Larkana, but the station house police did not transcribe the first informant's true version for motives of their own. Witnesses cited in the complaint were Mooder Khan son of Rahim Khan, father of the deceased boy, Kewro, Tagial and the complainant himself. It is thus obvious that the first informant was not satisfied with the manner in which his F.I.R. Was registered nor was he satisfied, apparently, with the investigation taken in hand by the police because, within a matter of minutes, the police registered its own F.I.R. Giving a totally different version of the incident. It is also plain that relatives of a deceased persons should be more anxious to bring the real culprits to book than any Law Enforcing Agencies, even if it be assumed, though it is difficult so to assume in our present day circumstances, that the police functionaries are acting in the best interests of the State and the prosecution.
5. ' In consequence, there have proceeded two sets of independent prosecution pertaining to the same incident and it can possibly be argued that these prosecutions involve counter-versions, since on the one side some police functionaries are accused persons and on the other they figure as the complainant party.
6. ' In course of time first informant Aloodo and witnesses Moonder Khan (father of deceased boy Wahid Bux), Kewro and Muhammad Tagyal filed affidavits before the VIth Additional Sessions Judge, Larkana, who was seized of the trial in relation to crime case No,22/92 and because such prosecution witnesses, on the basis of these affidavits, totally exonegated the applicants-accused, Mumtaz and Ghulam Shabbir, the learned Judge, on 2-8-1992, granted bails to both the applicants-accused in sums of Rs,1,00,000 each.
7. ' There, apparently are, no bail orders pursuant to the private complaint, registered on 24-3-1994, and therefore, none of the accused Police Officers seem to have any grievance as to the grant or otherwise of bail to them.
8. ' Coming to Crime No,23/92 in question registered at the instance of H.C. Khadim Hussain, aforesaid, pending before the Special Court (S.TA.), Larkana, the applicants-accused applied for bails before such Court, submitting copies of the four referred affidavits, relied upon by them before the learned Additional Sessions. Judge, who, as seen, had granted bails to them. The learned Judge of the Special Court has declined the applicants' prayer and denied the concession of bail to them. The applicants have come here.
9. ' We have examined the provisions in the prohibitory clause of section 497, Cr.P.C. And subsection
(8) of section 5-A of the Suppression of Terrorist Activities Act, 1975, minutely comparing the one with the other, and are of the view that the phraseology in the two provisions is identical except for the nature of the offences.
10. ' Such are in these words:-- Section 497(1), Cr.P.C.
11. "(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years:"
12. ' Section 5-A(8), Suppression of Terrorist Activities Act.
13. 1975.
14. "(8) An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released."
15. (Underlining added)
16. ' As a result, similar principles are applicable for grant bail or its refusal in relation to matters covered by the prohibitory clause in section 497(1) and the operative portion of subsection (8) of section 5-A aforesaid. We have also, on the subject, been referred by the learned counsel for the applicants to the decision of the Supreme Court of Pakistan in the case of State v. Qaim Ali Shah 1992 SCMR 2192 and a Full Bench decision of this Court in Asif Ali Zardari w. State 1993 P Cr. L J 781.
17. Consequent upon such examination of statutory law and judicial precedents, we have little doubt that the principles of justice, equity and good conscience, as promulgated in the various provisos of section 497(1) and other procedural sections of the Code of Criminal Procedure are equally applicable to grants or refusals of bails under subsection (8) of section 5-A of the Suppression of Terrorist Activities Act, 1975 and it is in such perspective of legislative and precedent law that the instant matter of bail has been considered.
18. ' Speaking tentatively, it seems to us that in the presence of the four affidavits in question there is scant likelihood that the two applicants would be convicted in Crime Case No,22/92 pending trial in the ordinary Court of criminal jurisdiction. If that be so and if the applicants are not so convicted in such case, there may be equally remote likelihood of their being convicted before the Special Court, benefit of doubt, relatives to the same incident, being extendable to them. This is more so as all but one witness in the case last mentioned are police functionaries, probably involving non- compliance with the mandate of section 103, Cr.P.C., highlighted in Yameen Kumhar v. State PLD 1990 Kar.
275. Further, counter-versions are also apparently, involved and the case may be one of further inquiry. Thus, we feel that a case for grant of bail in relation to the crime case pending before Special Court (S.TA.), Larkana, is also made out.
19. ' For such reasons the learned AA.-G., while he has forcefully argued the matter on behalf of the State, has exhibited little cavil with the justness of the order we propose to make.
20. Accordingly and as a result, the two applicants are allowed bails in the sum of Rs,2,00,000 each with P.R. Bonds in the like amounts to the satisfaction of the trial Court. The applicants, however, would be enlarged only if not required in any other case.