The petitioners have been arrested on 26-2-2000 in connection with a case registered at Police Station Oghi, District Mansehra vide F.I.R. No.405 dated 21-12-2000 under section 302/34, P.P.C. At the behest of Mst Basso, widow of Faqir Muhammad deceased.
2. The prosecution case in brief is that on the night of 21-11-2000, at about 1 a.m. Faqir Muhammad (victim of the assault) his wife Mst. Basso complainant and daughters Mst. Mehraj and Mst. Robina were asleep in their house situated in Mauza Kaval distant 7/8 kilometres from Police Station Oghi and the lantern was burning when pasta Din accompanied by his brothers Roshan Din and Sher Din petitioners called the deceased by his name and asked him to bring a glass of water outside.
The deceased left the house with water followed by the complainant. Immediately after leaving the house Khasta Din and the petitioners duly armed with rifles encircled the victim. Khasta Din fired at the deceased which hit him. The culprits then started beating the victim with the butts of their rifles.
After having accomplished the mission they succeeded to run away from the spot. The complainant and her daughters named above were stated to have witnessed the occurrence. The motive leading to the incident was stated to be that Mst. Taj Rafana daughter of the deceased was married to Khasta Din absconder and she was residing in separation in the house of her parents on account of which Khasta Din and his brothers were nursing grudge against the deceased.
3. The petitioners moved an application in the Court of Civil Judge/Judicial Magistrate, Oghi for grant of bail which was declined by order dated 3-2-2001. The prayer of the petitioners for bail was also turned down by Sessions Judge, Mansehra through his order dated 20-2-2001. The petitioners have approached- this Court with similar prayer.
4. Qazi Shamsud Din, Advocate for the petitioners in support of the bail application contended that the petitioners are innocent and have been falsely associated with the guilt due to previous enmity with their brother Khasta Din; that they have been simply shown to be present at the spot without any overt act assigned to them; that daughters of the deceased contradict their mother, qua the role attributed to the petitioners in the F.I.R. And that the occurrence having taken place at mid- night time identification of the petitioners is highly doubtful. To augment the submission reliance has. Been placed on "Shafaqat alias Gunga and 2 others v. The State" 1994 SCM R 1680 and "Muhammad v. The State respondent 1998 SCM R 454.
5. Conversely Mr. Muhammad Ayub, Deputy Advocate-General for the State assisted by Mr. Gul Muhammad Khan, Advocate for the complainant opposed, the bail application and contended, inter alia, that in view of the presence of the petitioners at the spot in sharing common, in ion with their brother Khasta Din absconding co-accused, the concession of bail has been rightly refused to the petitioners and the impugned order hardly calls for interference of this Court. In support of the submission reliance has been placed on "Zahid Shah v. The State" 200i PCr.LJ 134. Additionally it has been urged that the principal accused in this case namely Khasta Din is still absconder and admission of the petitioners to bail is likely to hamper and impede the efforts of the police to arrest the said fugitive.
6. Be that as it may, without adverting to the merits of the case I find that Khasta Din absconder alone has been singled out and assigned the role of firing at the deceased. It is true that the petitioners are directly nominated in the F.I.R. For the commission of offence but it is equally true that an insignificant role has beer, attributed to them. It has been vehemently contended by the learned counsel for the complainant that the principal accused is still absconder and admission of the present petitioners to bail is likely to create obstacle in the way of the police to arrest the absconder. The submission of the learned counsel has not impressed me. It is established law that one accused person cannot be kept in jail as a hostage for the arrest of another.
7. Whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation it would better to keep an accused person on bail than in the jail B during the trial.
8. The circumstances attending to this case bring it within the mischief of section 497(2), Cr.P.C. For further inquiry and the petitioners are entitled for the grant of bail. Accordingly the petitioners are granted bail on furnishing bail bond in the sum of Rs. 50,000 with two sureties each in the like amount to the satisfaction of Judicial Magistrate.
9. The present order should be viewed in the context of under-- consideration application only.
Announced.