1. ' The F.I.R. In this case was registered on 4-9-1998 for offences under section 324, 34 Qisas and Diyat Ordinance. Learned Sessions Judge Karachi West rejected the bail application of applicants on 6- 10-1998 mentioning as under:-- ' "It is pointed out by them that injured was admitted in hospital on 4-9-1998 and remained as indoor patient upto 14-9-1998 and these arguments advanced by learned D.D.A. Find support from he Medicolegal Report placed on record as well as police file and by 'final report injury caused to injured has been declared as 'Jurh-e-Jaifah' which prima facie is not bailable. Learned D.D.A. Has further opposed that both appellants facilitated the absconding accused in causing injury as such they cannot absolve themselves from liability of causing injury to injured."
2. ' The learned Advocate for applicant has requested for bail on the ground that the injury is attributed to absconding accused. The present applicant did not cause any injury and they were empty handed. They have been involved falsely and in such cases they are entitled to bail. He has placed reliance on decisions reported in 1978 SCMR 357, 1981 SCMR 359 and 504, 1989 SCMR 1987, PLD 1963 Karachi 118, 1981 SCMR 894 and 1997 PCr.LJ 1203.
3. ' Learned Advocate for complainant opposed the grant of bail on the grounds that the presence of applicants is admitted and they facilitated the commission of crime. They are brothers of the absconding accused. He placed reliance on decisions reported in 1996 SCMR 1270 and 1995 PCr.LJ 971; NLR 1992 Criminal Law Judgments 566 and PLD 1992 Peshawar 125.
4. ' It is admitted position that the injury was caused by accused Muhammad Sharif who is absconding. The applicants did not cause any injury to any-one. According to F.I.R. Applicants had caught hold of Abdul Aziz and accused Muhammad Sharif caused injury to Abdul Aziz in order to kill him. Learned Advocate for applicants relied on decision reported in 1978 SCMR 357 wherein their lordships have ruled as under:-- ' "It is quite clear from the F.I.R. That respondent No,1 was alleged to have held the deceased when his son Abdul Qayoom hit the deceased on his head. Respondent No,1 is, therefore, charged with the facilitating the murder of the deceased. It has been rightly pointed by the High Court that this question requires further inquiry and the petitioner was entitled to bail. In our opinion the High Court has exercised the discretion vested in it properly. This is not a fit case for interference."
5. ' As against this learned Advocate for the complainant has relied on decision reported in 1996 SCMR 1270 on the point that the offence under section 324 (as amended) is punishable upto imprisonment for 10 years notwithstanding the nature of injury caused by him. This decision cannot be applied to the present case as injury was caused by accused Muhammad Sharif and not by applicants. The second decision cited is reported in 1995 PCr.LJ 971 which is a decision of Lahore High Court on the point that the presence of accused at the spot would prove his common intention and would disentitle him to bail. This cannot be accepted as there is decision of Supreme Court mentioned above where even in murder case bail was granted in identical circumstances.
6. The third decision cited by the learned Advocate for complainant is reported in NLR 1992 Cr.LJ 566 on the point that the accused against whom section 34 has been applied cannot be granted bail on ground that no overt act is attributed to him. The fourth decision cited on behalf of the complainant is reported in PLD 1992 Peshawar 125 on the point that grant of bail in non-bailable offence is not a matter of right. These decisions cannot be accepted because in a case of identical nature their lordships of Supreme Court refused to interfere with order of the High Court observing that High Court had rightly held that it was a case of further inquiry (1978 SCMR 357, Basharat Hussain v. Ghulam Hussain).
7. No injury was caused by applicants. As regards part assigned to them that they caught hold of injured Abdul Aziz to facilitate co-accused who is alleged to have caused injury, requires further inquiry. I, therefore, grant bail to applicants subject to furnishing of surety in the sum of Rs,75,000 (Rupees seventy five thousand) by each applicant and P.R. Bond in the like amount to the satisfaction of trial Court.