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Criminal Miscellaneous No. 440/B of 1987, decided on 28th February, 1987.
‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail, grant of‑‑Accused found innocent by police after examining large number of persons including eye‑witnesses‑‑Accused not challaned but subsequently summoned on private complaint‑‑Truth of statements of witnesses examined by complainant, yet to be tested in cross‑examination‑‑Persons found guilty by police, still behind bars‑‑Case found to be of further inquiry‑‑Bail granted in circumstances.
Muhammad Hussain Chhachar for Petitioner.
A.K. Dogar for the Complainant.
Faiz‑ur‑Rehman for the State.
Saeed, Muhammad Ashraf and Zainul Abedin petitioners who have been summoned on a private complaint to face trial under section 302/34, P.P.C. have applied for bail.
2. The prosecution case is that Zainal Abedin had sodomic relations with Muhammad Rafiq deceased and used to be the passive agent. The deceased's son came to know about it and he used to stop them but they did not desist. On the night of occurrence at about 11‑00 p.m. Zainul Abedin and his son Yasin called the deceased to their house where the petitioners alongwith Ghulam Rasul co‑accused killed him with Dangs and a hatchet.
3. Bail is urged on the grounds that the petitioners were found' innocent in the investigation carried out by the S.H.O and Hamid Mukhtar Gondal. D.S.P. and were not challaned but were subsequently summoned on the basis of the complaint filed by Muhammad Mansha complainant. It is next submitted that the order of summoning the petitioners to face trial cannot be equated with the existence of reasonable ground for believing that the petitioners are guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years.
4. Learned counsel for the complainant and the State have strongly contested the application. According to them the occurrence had taken place in the house of the accused and the dead body had also been recovered from there and five eye‑witnesses had appeared before the Magistrate in the complaint filed by Muhammad Mansha and further that 28 injuries were found on the person of the deceased and that the mere opinion of the Investigating Officer about the innocence of the petitioners would not entitle them to be released on bail.
5. A perusal of the police record shows that the police had recorded the finding of innocence of the petitioners after examining a large number of persons including the eye‑witnesses. Hamid Mukhtar Gondal, D.S.P. had also confirmed the conclusion arrived at by the S. H.O. The truth of statements of the witnesses examined by the complainant is yet to be tested in cross‑examination. The persons found guilty by the police namely, Yasin and Ghulam Rasul are still behind the bars.
In the circumstances discussed above, it appears to be a case of further inquiry. Accordingly, I admit the petitioners to bail in the sum of Rs.25,000 each with two sureties each in the like amount to the satisfaction of A . C . , Okara.
S. A. /S‑17/L Bail granted.
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