1. ' This application for bail has been filed on behalf of 3 applicants Pirdino, All Buz and Bilawal who are accused along with 20 others in a case un ler section 332/333/302/307/342/353/395/397, P. P.
2. C. Pending in the Sessions Court at Nawabshah.
3. ' The facts are that a police party had gone to Nawab Wali Muhammad Khan village for executing a search warrant issued by the Civil Judge and F. C. M., Moro for securing Mst. Siani who was alleged to have been detained by deceased Misri. When the Police party reached the village they were surrounded by the residents of the village and an encounter took place between the Police party and the villagers as a result of which Constable Muhammad Chuttal died on account of the hatchet injuries given to him by All Out and Ohulam Nabi and two villagers Misri and Khamiso died as a result of fire-arm injuries. The applicants applied for bail to the Sessions Judge, Nawabshah which was rejected. Hence this bail application.
4. ' Mr. Muhammad Hayat Junejo, learned counsel for the applicants contended that the deceased Chattel died on account of four hatchet injuries which are said to have been caused, even according to the prosecution's own case, by the accused All Gul and Ghulam Nabi and no specific part of causing any injury to the deceased or anyone else from the Police party or to the other two deceased has been attributed to any of the present applicants, and, therefore, the applicants could not be held constructively liable for the alleged murder on account of their presence which was only natural as they resided in that very village. 7,0 learned counsel nest contended that in view of the admitted position that 2 of the villagers also died as a result of fire-arm injuries, the correct version of the incident has yet to be established at the trial which is likely to be delayed in view of large number of accused involved and the fact that as many as 17 accused have been shown in the challan as absconders. In support Mr. Junejo relied upon 1976 SCMR 159.
5. ' Mr. A. Satter Shaikh, learned Assistant Advocate-General, stated that since the applicants were among the accused who are alleged to have resisted the Police party in performance of their official duties, he would have ordinarily opposed their bail but in view of the fact that the injuries resulting in the death of Police Constable Chuttal were specifically attributed to All Gul and Ghulam Naffi and no role of causing any injury to the deceased, or to any one else has been attributed to any one of the applicants, their constructive liability for the alleged murder has }et to be established at the trial and, therefore, he has no objection if the applicants are released on bail. He, however, requested that it be left open to the Sessions Court to cancel the bail of the applicants at any stage of the trial if the evidence implicating them is brought on record by the prosecution.
6. I fully agree with the learned Assistant Advocate-General. The applicants admittedly resided in the village and it is also an admitted position that the injuries on account of which the death of the police constable occurred have been attributed to accused Ali Gul and Ghulam Nabi and none of the present applicants are alleged to have caused any Injury to the deceased Chuttal or any one else. Their constructive liability for the alleged offence therefore, has yet to be established at the trial. Further, it is also conceded that as many as 33 persons have been challaned and according to the F. I. R. Nearly 70 to 80 accused are alleged to have participated in the incident and, therefore, the correct version of the incident has yet to be established, particularly in view of the application made by Mat. Sohni widow of deceased Misri to the Martial Law Administrator Zone "C" complaining against the highhandedness of the Police party who is alleged to have caused the death of her husband Misri. Further, the trial of the case is also likely to be delayed because of the large number of accused involved and 17 persons having been shown in the challan as absconders. In these circumstances, and keeping in view the observations of their Lordships of the Supreme Court made in the case of Waked Hassan v. The State (1) I find this to be a fit case for bail and accordingly order that the applicants be released on bail on their furnishing one surety each in the sum of Rs, 15,000 with P. R. Io the like amount to the satisfaction of the trial Court. It will, however, be open to the trial Court to cancel the bail of any of the applicants at any stage of the trial if the evidence brought on record warrants such a course.
(1) 1976 SCM R 159