' Applicant Ali Hassan sought bail in a case instituted against him under section 302, Qisas and Diyat Ordinance in F.I.R. No,47 of 1993, Police Statiori Qazi Ahmed, District Nawabshalt.
2. According to the prosecution, complainant Saifal, lodged the said F.I.R. On 15-4-1993, alleging that, five years prior to the incident, one Ali Gul (brother of the applicant Ali Hassan) had murdered his wife on the allegation of being Kari with deceased Allah Wasayo, who was son of the complainant above named. He stated in the F.I.R. That on the day of incident, at about 12-30 hours, his deceased son Allah Wasayo along with his another son, namely, Roshan as well as nephew Panjoo had gone to Mall Piri of Rais Ali Nawaz Unar in connection with business of cattles. When they were standing near the hotel of Moharram, accused Ali Gul armed with pistol, Ali Hassan (the applicant) armed with Lathi ad one Mir Afzal reached there. Mir Afzal instigated the two other accused to kill Allah Wasayo and as a result of said instigation Ali Gul fired, at Allah Wasayo while Ali Hassan gave him Lathi blows on his chest, after he had fallen down due to injury caused by the fire-arm used by Ali Gul. Allah Wasayo died on the spot and his brother Roshan left the place of incident to inform his father leaving Panjo behind to look after the dead body. The complainant, on receiving the information, reached the place of incident where he found his son dead. He left Roshan and Panjo at the spot and came to the police station to lodge the said F.I.R. Against the accused persons stating that his son was killed under the false allegation of Karo. After usual investigation, Mir Afzal was let off by the police treating him to be innocent and the remaining accused were booked in the challan to face trial.
3. Bail application was moved on behalf of the applicant Ali Hassan before the learned Sessions Judge, Nawabshah but the same was dismissed by hiln vide order, dated 12-7-1993. Hence the present application before this Court.
4. I have heard Mr. Qurban Ali Chohan, the learned counsel for the applicant and Mr. Dhani Bux Dayo, for the State.
The learned counsel for the State has opposed to the grant of bail on the grounds that (i) as the case of the accused persons has not yet proceeded, therefore, it is a premature stage for consideration of the bail application, (ii) the name of the applicant appears in the F.I.R. With specific role, hence he is not entitled for bail and (iii) as Mir Afzal was found innocent, hence exclusion of his name from the list of accused persons in the challan does not entitle the present applicant to be enlarged on bail.
5. I have asked the learned counsel for the State to point out, proper stage for moving bail application if the present stage was premature, but he had no answer to this question. If the accused persons have right to move applications under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. For their acquittal before any Magistrate or a Sessions Judge respectively at any stage of the case i,e, even before framing the charge, on the basis of probabilities not warranting conviction then they have better right to move bail applications under section 497, Cr.P.C. At any stage of the case on the basis of possibilities of their acquittal. Hence no stage can be treated as a premature stage to consider the bail application of accused persons.
' Similarly mention of names of accused persons with their specific role in any F.I.R. Cannot be the base to reject every bail application unless other pieces of evidence corroborate the charges levelled against the applicants. If names of more than one accused are found in any F.I.R. Under section 302, Qisas and Diyat Ordinance and death has been caused due to the act of one person while the acts of other persons were not sufficient to cause death, then it cannot be said that the case of all the accused persons stands on the same footing.
' With reference to the third ground, the learned Advocate for the State could not point out any judgment in support of his contention. Yet the learned Sessions Judge, Nawabshah has dealt this question in the following manners:-- "As concerns the release of Mir Afzal settled position of law is that for the release of one person the case of remaining does not come of bail.
' PLD 1980 SC 95 is clear on this point. Thus, there are reasonable grounds to believe the applicant to be guilty of the offence. He does not deserve to be released on bail."
' Apparently it seems that the certified copy of the order has not been typed properly because no such judgment was found in PLD 1980 SC 95. However, in a judgment reported in PLD 1988 (not 1980) SC 84. It was held that:-- "The mere fact that the person who has been allowed bail in the same case (who in our view) should not have been allowed bail, does not justify grant of bail to a person who is otherwise not entitled to it."
Hence it is clear that the facts of that case were not applicable to the present case because in the present case the name of one accused was excluded from the list of accused persons for the reasons best known to the prosecution or the trial Court who accepted the challan. While in the referred judgment one co-accused had been granted bail and not excluded from the list of main accused persons. The exclusion of Mir Afzal's name from the challan has its own repercussions on the case of the remaining accused persons.
6. The learned counsel for the applicant has pointed out that as per F.I.R. The applicant had inflicted Lathi blows on the chest of the deceased after he had fallen down due to the injury caused by fire- arm used by the co-accused while according to the order of Sessions Judge the applicant had inflicted Lathi blows on the head of the accused. Hence it cannot be said with certainty at this stage whether the Lathi blows (inflicted on the chest as per F.I.R. Or inflicted on the head of the deceased as per order of the learned Sessions Judge) could be the actual cause of death of the deceased after the injury caused by the fire-arm or whether the injury of fire-arm was sufficient to cause death, even if, no Lathi blows had been inflicted by the present accused. The learned counsel for the applicant/accused has also relied upon the. Judgments reported in 1984 SCM R 530 and 1980 SCMR 1987 in support of his contention regarding the principle of inconsistency between the ocular and medical evidence with reference to the injuries caused by the applicant. It has also been contended that the prosecution is delaying the proceedings since 15-4-1993 and till date no witness has been examined. On the other hand, Mr. Dhani Bux Dayo learned counsel for the State has attributed the allegation of delay against the accused persons. However, I would not like to give any opinion about the delay of proceedings with reference to the allegations levelled by the parties against each other's at this stage except to find out whether a case of further enquiry has been made out or not because if weights of presumed possibilities or probabilities regarding conviction or acquittal of an accused in both scales of balance of justice keep its beam in equilibrium then it falls in the dangling cradle of further enquiry as enunciated in section 497(2), Cr.P.C. And the accused shall, pending such enquiry, be released on bail.
7. Keeping in view all the facts discussed above, I felt that a case of further enquiry had been made out. These were the reasons, on the basis of which I had directed on 12-6-1994, by allowing the application, that the applicant be released on bail on furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the trial Court.