1. ' DR. GHOUS MUHAMMAD, J.--- This order will dispose of bail application submitted on behalf of the applicant/accused Shahzad who is facing trial in Crime No,51 of 1995 registered at Police Station Phuleli Hyderabad for the offences under sections 436, 427, 148, 149, P.P.C. The Judge, Special Court No,1 (Suppression of Terrorist Activities), Hyderabad (Mr. Abdul Majeed Bhatti) rejected the bail application of the applicant on 27-8-1995.
2. ' The complaint was lodged on 5-6-1995 at 20-35 hours by Muhammad Siddique who is Assistant Operator in Micro Exchange and Equipment Room Railway, Hyderabad. The English translation of the material facts in the F.I.R. Reads as under:- "This week, I had to perform night duties, commencing from 10 p.m. To 9 a.m. Morning. As usual I come to attend my duties in the evening at 10 p.m. And relieved my fellow operator Abdul Ghani.
3. After his departure, I closed the door from inside and remained seated there. At about 10-30 p.m..Somebody knocked the door, I asked from inside as to who was standing outside the door.
4. Somebody spoke in Urdu and replied that one person related to him had expired, and as such he had come to make telephone call to Tando Adam. As soon as I opened the door, I saw 5 (five) persons entering inside the room who were armed with T.T. Pistols, two persons held one bottle each, which containing petrol and their faces were opened, if they ever came in my sight I will be able to identify them. The moment they entered and they warned me not to raise cries. I kept silence due to fear. Out of them, two persons sprinkled the bottles filled in with petrol at different places of exchange and set them to fire. And after collecting the files of the record, threw them in burning fire, which were too burnt. After their departure I saw the Exchange had suffered damages, described hereunder:--
(1) D.C. Unit No,3.
(2) Exchange Card.
(3) Three Micro Video transmitters.
(4) 4 Micro Wave Receivers.
(5) Damages to Chine Reactor and Filter.
5. ' Thereafter, I went direct to the station and after accompanying my A.T.E. Returned to the Exchange. The A.T.E. After inspecting the said place, directed me to go to the police station and lodged report of the incident."
6. ' We have heard Mr. Nawab Mirza learned counsel for the applicant and Mr. Abdul Latif Ansari learned A.A.-G. For the State and have perused the police papers.
7. ' Learned counsel for the applicant vehemently urged that the F.I.R. Is silent about the name and description/features of the applicant/accused. According to him he was already in the custody of police but was falsely implicated in this case as well as in another case under section 13-D, Arms Ordinance due to ulterior motive and mala fide intention. He pointed out that co-accused Shoukat has been granted bail by the learned trial Court and cases of both the accused are identical but the applicant's request for bail was turned down. Lastly he contended that the alleged offences except 436, P.P.C. Are bail able and the prosecution has failed to collect any material evidence.
8. Learned A.A.-G. Initially opposed the bail application but after going through the bail order of the co-accused and police papers be reluctantly conceded to the grant of bail.
9. ' While rejecting the bail application of the present applicant the trial Judge observed as follows:-- "Learned S.P.P. Has vehemently opposed the grant of bail to the accused on the ground that the case has recently challenged and no charge has so far been framed. Let some evidence come on record, then this bail application would be considered, until then the accused is not entitled to be released on bail.
10. ' I have carefully considered the submissions of both learned D.C. And learned S.P.P. And I am in full agreement with learned S.P.P. That the accused is not entitled to be released on bail. In my view the accused has committed a scheduled offence as he was armed with a T.T. Pistol and petrol bottles were also found in his hand. Moreover the case is recently challenged and charge is also not framed against the accused persons. In my view, to assume the guilt or innocence of the accused it is necessary to record some evidence in the matter, this stage has admittedly not yet come until then I do not find it necessary to release the accused on bail as he has committed a very heinous offence, and burden lies upon the accused to prove his innocence, which stage of course will come after recording evidence in the matter until then the accused is not entitled to be released on bail and his bail application merits no consideration and is hereby dismissed."
11. ' It would be relevant to note that we have seen many bail orders passed by the trial Judge. He has given the above reasons invariably in every order for rejecting the bail applications.
12. ' In the bail order of co-accused Shoukat the trial Judge has observed as under:-- "Learned S.P.P. Vehemently opposed the bail application and submitted that the case is fresh and there are sufficient grounds on record to believe that the accused has committed the present offence, therefore, he is not entitled to be released on bail at this stage.
13. ' I have heard arguments of learned counsel for the accused and learned S.P.P. And also perused the case papers and also police papers. From the record it appears that there is no recovery from accused Shoukat Ali viz. Any fire-arm or any petrol bottle as alleged in the F.I.R. Carrying by the accused. No name of this accused is mentioned in the F.I.R. Nor ' his description or features have given in the F.I.R. I, therefore, admitted and P.R. Bond in the like amount.
14. ' After going through both the orders we are constrained to observe that the reasons for rejecting to bail application quoted above are totally perverse. This shows his lack of application of judicial mind. It is quite surprising that as was rightly pointed out by the learned A.A.-G. Evidence against both the accused is the same, therefore, instead of following the rule of consistency and the guideline provided by the Superior Courts the trial Judge had chosen to adopt different standards for rejecting the application of the applicant/accused and for allowing the bail application of the co-accused. In case where there are several accused they should be treated alike. If one accused was allowed bail, the other accused against whom the same offence is alleged and there is similarity of evidence and circumstances should also be allowed bail. Likewise when bail application of one accused is rejected, bail cannot be allowed to a co-accused who is similarly placed. Granting bail is a relief resting primarily on the discretion of the Court which should be exercised with the due care and caution keeping in view the facts and circumstances of each case. Under the law grant of bail is the rule and its refusal is only an exception. If an accused person is otherwise entitled to bail there is hardly any justification to keep him behind the bars even for a moment. Deprivation of liberty which is a cherished right of a person is equal to conviction. The learned trial Judge is reminded that the law presumes an accused person to be innocent till his guilt is proved. This is also the principle of Islamic Jurisprudence which is required to be followed in letter and spirit in our Islamic Democratic State. As a presumably innocent person the accused is entitled to every freedom during trial and he will be in a much better position to pursue his case and properly defend himself than if he were in custody. On this principle the Courts ought to generally grant bail unless the facts and circumstances are such that he should not be enlarged in bail as was held by Honorable Supreme Court in Khalid Saigol v. The State PLD 1962 SC
495. Once the learned trial Judge on a tentative assessment of the evidence had granted bail to co-accused Shoukat the case of the present applicant being at par with the said co-accused, the bail should not have been refused. Accordingly following the law laid down in Muhammad Fazal alias Bodi v. The State 1979 SCM R 9, Abdul Sattar v. The State 1982 SCM R 909, Khadim Hussain v. The State 1983 SCMR 124, Walayat and another v. The State 1984 SCM R 530 the applicant/accused is admitted to bail in the sum of Rs,10,000 (Rupees ten thousand only) with one surety and P.R. Bond in the like amount to the satisfaction of the trial Court.