' This order disposes of application for enlargement on bail of Bashir, Abdullah and Nawab accused in case for the offence of murder under section 302/34, P. P. C. Allegedly committed by them along with Rashid another accused in the case in furtherance of a common intention.
2. Heard either side. The case was registered against the accused on a report by Ghulam Rasool Sarbarah Lambardar which was lodged next day of the occurrence at Police Station, Kuthiala Sheikhan, District Gujrat five miles from the site of occurrence. Abdullah petitioner No. 2 is son of Nawab petitioner No.
3. As stated from the bar Bashir petitioner No. 1 and Rashid who are real brothers are closely related to Nawab. The report alleges that the petitioners actively aided by Rashid and had dealt a number of injuries to Niaz alias Najja deceased in the compound of their house with hatchets etc. At about 6-45 p.m. Viz. At dusk hours. The deceased died instantaneously. The motive attributed to the accused being that deceased who was resident of Lahore used to visit the village frequently. He had settled down in the village l month before the incident and had developed illicit intimacy with Ms/. Khurshid wife of Nawab. The scandal was widely known in the village. The report also gives an impression that the deceased had also been residing with the accused and was turned out a day before the incident. However, the deceased visited house of the accused on the day of incident and was assaulted mortally by the accused. Bashir and Rashid applied jointly before learned Additional Sessions Judge, Gujrat for grant of bail. Rashid who had allegedly held the deceased in his clasp was alone admitted to bail. Bashir was refused bail as he had allegedly also caused injuries to the deceased with a sota in his hand.
3. Learned counsel for the petitioners contended at the outset that report was lodged after a delay of more than 12 hours. The explanation in the report that the offence could not be reported promptly for want of proper means of communications is not plausible in any way. Police Station is at a distance of 5 miles from the place of incident which took place at sunset. It could not have been much difficult for the informant to set oat for the police station immediately for report. This contention does not merit a serious consideration at this stage for fhe question whether or not explanation for delay in the report was plausible will be determined at the trial. Ordinarily, bail must be refused in cases punishable with death etc. If there are reasonable grounds for believing that the accused was guilty of charge. Reasonable grounds for believing are not to be equated with proof. Allegations made in the first information report as confirmed by medical evidence tend to connect the petitioners with the crime. Learned counsel for the petitioners does not dispute the above view that charge against the accused was not groundless. However, he maintained vehemently that on the allegations made in the first information report itself which forms the ground-stone for the case of prosecution, offence under section 302, P. P. C. Was not made out. The offence predominantly falls under section 304, P. P. C. Visit of the deceased to the house of the accused must have caused provocation to the accused which was grave and sudden as well and had the effect of depriving them of the power of self-control. The deceased was killed instantaneously during continuation of deprivation of power of self-control by the accused. In suitable cases the question of precise nature of offence can be determined tentatively for the purpose of grant of bail in murder cases also e.g. Where right of private defence is glaringly manifest or where on the facts alleged by the prosecution itself the case was manifestly covered by any of the exceptions in section 300, P. P. C. This contention is supported by the judgment of Supreme Court in Abdul Malik v. State (1). It was held by their Lordships (page 352 of the report) that : "The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case, both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refused, without the need to go into a deeper appreciation of the merits of those grounds and the evidence on which they are rested, which functions ought to be assumed at the trial stage. However, if it is found that the charge is groundless, i.e. To say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Court's discretion is removed which must then be freely exercised in favour of the grant of bail."
4. The offence under section 304(1), P. P. C. Is punishable with life/ten years imprisonment. Learned counsel for the petitioners meets the situation successfully with the argument that it is unlikely that the accused who had suffered worst dishonour by a sordid act of the deceased which he wanted to persist despite the known reaction of the accused will be awarded sentence of imprisonment of 10 years or above. Moral values of the society are kept in view by the Courts in passing order of sentence in such cases. Therefore, prohibition in subsection (1) of section 497, Cr. P. C. Will not apply to the case. It was held in Ameer v. State (2) that "if in a particular ease, the Court is in a position to come to a conclusion on the data placed before it even at bail stage that the prosecution case if taken to its extreme would not entail the maximum punishment, it would go out of the prohibition.
The Court would then have the jurisdiction to grant or refuse bail in exercise of its discretion."
Additionally the petitioners are in the lock-up for the last about 2 years. Learned Sessions Judge has reported that the case will come up for trial after about a year. The facts that there was a doubt if on the allegations made in he first information report, the accused wer guilty of offence of murder, which doubt must be resolved in their favour, that they may not be awarded sentence exceeding 10 years if charge I established against them and the Court comes to the conclusion that the was covered by exception I to section 300, P. P. C. And delay of three years in the proceedings justify the prayer for grant of bail. The petitioners are allowed bail in the sum of Rs.
10,000 with two sureties with personal bonds in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Gujrat.
5. Before parting with the order I would like to clarify that what I have said above is merely incidental to the disposal of the application for bail and shall not be treated' even a provisional view on the precise nature of charge against the petitioners.