' The petitioner seeks bail in a case registered through F.I.R. No,34, dated 22-4-1995, under section 302/324/148/149, P.P.C., at Police Station Kakrali, District Gujrat, against the petitioner and four others.
2. The complainant is the son of the deceased Fateh Khan. Fateh Khan was admittedly more than 85 years old. According to the version given in the F.I.R. By his son, Fateh Khan deceased, his other son Shakeel Ahmad and one Amjad Iqbal alias Jagga were talking with each other up to 1-00 p.m.
On 22-4-1995 when the complainant went to his house to sleep. He heard the noise of the firing and when came to the spot found that Fateh Khan had been murdered by fire-arm and Shakeel i,e, son of the deceased and Amjad Iqbal alias Jagga were not present there. He went to the police station to get the F.I.R. Registered and suspected Amjad Iqbal alias Jagga having committed this murder at the instance of somebody else.
3. On 22-4-1995 at day time the complainant namely Muhammad Ilyas Ahmad got his supplementary statement recorded in which he appears to have 'changed the stand taken in the F.I.R. As he stated that in the evening on the day of occurrence the deceased along with Shakeel Ahmad and Amjad Iqbal alias Jagga were sleeping in the Dera and he i,e, the complainant was sleeping in his house when he heard noise of the fire-arm and came to the spot and found that Shakeel Ahmad and Amjad Iqbal alias Jagga were not present when after getting the F.I.R.
Recorded he came to his house, he found Shakeel Ahmad in his house who stated that the present petitioner alongwith four others namely Tariq, Shakeel, Ghulam Abbas and Nasir Mahmood committed this murder. He also attributed motive to the present petitioner which was to the effect that the present petitioner had developed illicit relations with the wife of the son of Lal Khan brother of the deceased and the deceased told him not to indulge in this affair and visit the house of Lal Khan about six months ago which was taken as insult by Fayyaz and in order to take revenge, he committed this murder.
4. There is nothing in this supplementary statement of the complainant as to the cause of disappearance of Shakeel Ahmad the other son of the deceased from the spot after the occurrence and his avoidance to approach the police station immediately to get the F.I.R.
Recorded. It was not stated by the complainant in this supplementary statement that he even showed his anxiety to inquire from Shakeel Ahmad as to the reasons of his disappearance from the spot.
5. The other person i,e, Amjad Iqbal alias Jagga according to his statement, went to the village Gulyana after occurrence from where he boarded a wagon and went to Lala Musa. According to him he sustained injuries of fire-arm but no explanation has come on record as to why in these circumstances, he instead of approaching the police station alongwith Shakeel Ahmad to report the occurrence went to Gulyana and Lala Musa and did not get himself medically examined and also did not feel it necessary to get medical treatment for the injuries sustained by him. He was suspected as a murderer, therefore, this conduct of disappearance from the spot and not getting himself medically examined is very much relevant for considering whether it is a case' of further inquiry, till both of them are examined as witnesses and explain this conduct.
6. According to supplementary statement of the complainant the petitioner had illicit relations with the wife of son of Lal Khan the brother of the deceased but no such fact was mentioned in the F.I.R.
Itself.
7. Learned counsel for the State submitted that the challan has been submitted to the Court and the trial is likely to commence which may not take a long period to conclude, therefore, according to the long standing practice of the superior Courts bail application should be rejected at this stage.
8. Learned counsel for the petitioner relies upon judgment reported as Muhammad Ismail v.
Muhammad Rafiq and another PLD 1989 SC 585 and sections 497(2) and 497(4) of the Cr.P.C. To argue that it has been held that provisions of section 497(2), Cr.P.C. Do not become inoperative merely because the trial had commenced if otherwise an accused person is found to be entitled to the grant of bail on its own merits which if granted would not in any way amount to expression of opinion about the merits of the case which have to be decided by the trial Court after recording evidence, therefore, no prejudice will be caused to the prosecution regarding the trial.
9. I have examined this reported judgment in which it has been clearly held that the long standing practice cannot render section 497(2), Cr.P.C inoperative if an accused person is otherwise found to be entitled to bail the same cannot be withheld merely the trial had commenced.
10. It has been laid down that the long standing practice may be relevant for the purpose of exercise of discretion whereas section 497(2), Cr.P.C. Relates to the right of an accused person which are not mutually destructive.
11. After considering the evidence so far collected and the conduct of Shakeel Ahmad and Amjad Iqbal alias Jagga and the statement of the complainant in the F.I.R. As originally recorded and the change of the stand made through supplementary statement, it appears to be a case in which it can 'be doubted that there are reasonable grounds for believing that the petitioner is guilty of an offence falling within the prohibitory clause of section 497, Cr.P.C. And his case being a case of further inquiry, as such, he is entitled to bail which cannot be withheld merely because the trial is yet to be commenced or has commenced in view of the rule laid down in PLD 1989 SC 595.
12. These observations and findings are tentative in nature and made merely for the purpose of considering the case for grant of bail, therefore, will not be taken as expression of opinion on the merits of the case or the evidence to be recorded the case shall be decided on the basis of evidence uninfluenced by any observations made in this order for the trial Court may ultimately feel persuaded to accept the explanation of the said two witnesses about their abovementioned conduct, after recording the evidence.
13. The petitioner is allowed bail in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the' satisfaction of A.C./Duty Magistrate, Kharian, District Gujrat.
' Copy Dasti on payment of usual charges.