1. ' The applicant seeks bail in a case registered through F.I.R. No,93 of 2001, Police Station Behram, District Larkana under sections 302, 337-H(iii), 148, 149 and 114, P.P.C. Against the applicant and four others.
2. ' The facts leading to the present application for bail are that the applicant/accused is facing trial in Sessions Case No,782 of 2001 pending trial before the learned 1st Additional Sessions Judge, Larkana. The contents of F.I.R lodged by complainant Ghulam Murtaza are reproduced hereinbelow:-- "It is complained that about a year back there was a dispute between us and Muhammad Yousif Qazi and others on matrimonial affairs. Today I and my brother Ali Hassan aged about 45 years, son Irfan and cousin Haji Daud son of Muhammad Younis, by caste Soomra, resident of Karira, Taluka Miro Khan were going towards our houses by the common street and my brother Ali Hassan was walking at some distance ahead of us. When at about 3-30 p.m. We reached near the house of Bakhshal Soomro in the common street, we saw each (1) Muhammad Yousuf son of Abdul Fatah,
(2) Mohsan son of Muhammad Amin, (3) Muhammad Saleh son of Abdul Fatah, (4) Ziauddin alias Guddu son of Muhammad Saleh all armed with pistols, (5) Attaullah son of Muhammad Saleh armed with rifle, all by caste Qazi, resident of village Karira, Taluka Miro Khan were standing who on seeing us, out of them accused Muhammad Saleh Qazi challenged my brother Ali Hassan and asked him that there is a dispute between us, so why we (complainant party) are coming in front of them and saying so accused Muhammad Saleh instigated all the rest co-accused to kill Ali'
3. Hassan. On that accused Muhammad Yousif Qazi directly fired his pistol at my brother Ali Hassan, which hit him, accused Mohsin Qazi also fired his pistol directly at my brother Ali Hassan which too hit him and he fell down on the ground by crying and all the other accused opened fires in the air over us with their weapons. We did not go near them due to fear. Thereafter, all the accused ran away from their towards their houses with their weapons. We all then went and saw brother Ali Hassan, who had a fire-arm injury under the right armpit and fire-arm injury at left side of his belly (axilla), blood was oozing and he was unconscious whom we took to Taluka Hospital, Shandadkot for first aid but he passed away in the hospital. I then left the above P.Ws. To safeguard the dead body and now I am present here and report that about year back we had a matrimonial dispute with Muhammad Yousaf Qazi and others and due to that annoyance all the above named accused in pre-concert with each other being armed with weapons have used violence and at the instigation of accused Muhammad Saleh Qazi, accused Muhammad Yousuf Qazi and Muhsin Qazi have committed the murder of my brother Ali Hassan by making direct pistol shots at him. I am complainant, investigation be made."
4. ' After investigation the police put up the challan which is pending before the learned 1st Additional Sessions Judge, Larkana where bail application was filed by the applicant Muhsin which was rejected on 5-8-2002. The applicant has preferred this application on the similar grounds for grant of bail before this Court.
5. ' It is contended by the learned counsel for the applicant that complainant Ghulam Murtaza and eye-witnesses namely Irfan Ali and Haji Daud have been examined in the trial Court and the applicant/accused has been exonerated from the commission of the offence. Learned counsel further submits that the above named witnesses have also sworn affidavits before recording their statements by the trial Court. It is further urged by the learned counsel that the applicant/ accused was named in the F.I.R. Out of suspicion and thereafter "Faisla" was held between the parties and the applicant was found innocent and thereafter complainant and the eye-witnesses has not implicated the present applicant/accused. It is further urged that the applicant/accused was in confinement since last 9/10 months and the scope of further enquiry as envisaged under section 497(ii), Cr.P.C. Can be taken into consideration. Learned counsel in support of his proposition has relied upon the case of Zahid Khan v. The State 1998 PCr.LJ 2063, Fayyaz Ahmed v. The State 1997 PCr.LJ 847, Malik Amanullah v. The State 1998 PCr.LJ 914 (Quetta) and case of Muhammad Ismail v.
6. Muhammad Rafique 1989 SCM R 997.
7. ' Conversely Mr. Ali Azher Tunio learned Assistant Advocate-General has opposed the application and submits that the trial has been commenced and further examination-in-chief of the eyewitnesses is reserved for want of 164, Cr.P.C. Statement and although the complainant has been declared as hostile and after bringing the 164, Cr.P.C. Statement before the trial Court the demeanor of eye-witnesses will be considered by the trial Court. Learned Assistant Advocate- General in support of his proposition has also relied upon the case of Mehmood Ahmed and others v. The State 1995 SCMR 1247.
8. ' I have considered the arguments so advanced by the learned counsel for the respective parties and examined the bail rejection order. As per F.I.R. The name of the present applicant/accused is mentioned and he was specifically attributed for causing fire-arm injury to deceased. Although the injuries are borne out from medical certificate and pistol was also recovered from applicant but while recording the statement of complainant in the trial Court the complainant Ghulam Murtaza has clearly stated that the police obtained his thumb-impression on the paper which was not read over to him and the contents read over to him in the Court are not correct and he had not seen any assault while firing at his brother (deceased). It is further deposed by the complainant that he had not named any accused in the F.I.R. And the applicant present in Court are innocent and they were not seen by him at the place of incident. The complainant was declared hostile by the prosecution and it was suggested by the prosecutor that he has been won-over by the accused and statement has been made due to compromise. As per deposition of P.W. Irfan Ali he had specifically stated that he was not produced before any Magistrate for recording 164, Cr.P.C. Statement and the accused present in Court were not seen by him at the place of incident and they have not caused any injury to deceased Ali Hassan. It is further stated in the deposition by the said P.W. That his 164, Cr.P.C. Statement was not recorded by the police and on the day of the incident he was available in his house and the complainant and the prosecution witnesses were available in the said house and all the witnesses had proceeded to the place of incident of hearing gun shot reports and when they reached near the house of one Bakhshal Soomro in the street they saw deceased Ali Hassan was dead having fire-arm injuries and they did not see any assailant at the place of occurrence.
9. P.W. Haji Daud has deposed the similar statement like P.W. Irfan Ali and their further examination- in-chief was reserved for want of 164, Cr.P.C. Since both the witnesses have exonerated in their examination-in-chief and at the most the prosecution declared them as hostile witness. The scope of further enquiry as provided under section 497, Cr.P.C. Is available to the accused at the last stage of trial if otherwise accused is found to be entitled to bail then the same cannot be withheld merely the trial had commenced. 'After considering the evidence so far collected during the course of investigation and recording of the evidence of the trial Court the conduct of the complainant and the other eye-witnesses is clear that they have exonerated the accused from the charge framed against the present applicant/accused.
10. ' In view of the evidence so brought on the record it could not be doubted that there are reasonable grounds for believing that the applicant is guilty of offence fallen within the prohibitory clause of section 497, Cr.P.C. And his case is of further enquiry, as such he is entitled to bail. Honourable Supreme Court in case of Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 588 has held as under:-- "The first point is not much in context, it is well-known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. The observation of learned Judge in the High Court with regard to prejudice, with respect, it is pointed out, would not be correct; because the principle underlying the above-stated practice is directly relatable to the question of prejudice.
11. ' However, the above stated position notwithstanding, after hearing the learned counsel we feel that this appeal merits to be dismissed. Firstly if the merit points involved herein are determined, the very practice relied upon by the learned counsel will go against the appellant. The trial is to commence within a fortnight; hence cancellation of bail at this stage would not be proper. But in the circumstances of this case there is a more vital point on account of which this appeal merits to be dismissed.
12. ' It appears from the tenor of the impugned judgment of the High Court that the respondents case was treated as one falling under subsection (2) of section 497, Cr.P.C. That being so, the Court had no option but to release the accused on bail. The subsection reads as follows:-- '(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be that there are not reasonable grounds for believing that the accused has committed (a non-bailable offence) but that there are sufficient grounds for further enquiry, into his guilt the accused shall pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.'
13. ' It is apparent that when the Court finds that the two essential conditions contained in section 497(2), Cr.P.C. Are satisfied the accused shall become entitled as of right to bail. In the impugned order the learned Judge, it seems, without saying so in so many words, felt that the two conditions existed in this case (a) that there are not reasonable grounds for believing that the accused has committed (a) non-bailable offence; (b) that there are sufficient grounds for further enquiry into his guilt. Accordingly the accused had become entitled to be released on bail.
14. ' The question then arises; whether, subsection (2) of section 497, Cr.P.C. Would have operation notwithstanding the afore-stated practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection (2) of section 497, Cr.P.C. The same cannot be withheld on the ground of practice; because, the later is relatable to exercise of discretion while the former is relatable to the exercise and grant of right."
15. ' In view of the dicta laid down by the Honourable apex Court the above cited authority, the applicant is allowed bail in the sum of Rs,1,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. These observations and findings are tentative in nature and made merely for the purpose of considering the case for grant of bail, therefore, it will not be taken as expression of opinion on the merit of the case.