2010 P Cr (PLP)

MUHAMMAD TASNIM, J.

Through this application the applicant, who is facing trial in Crime No.640 of 2008 lodged at Police Station Gulistan-e-Jauhar, Karachi under section 302/34, P.P.C., is seeking bail. Brief facts of the case are that complainant Lal Bux son of Qadir Bux, lodged F.I.R. at Police Station Gulistan-e-Jauhar on 7-12-2008 to the effect that on the said date his son, namely, Jahanzeb and his friend Adil were having dinner at Haidri Hotel, Hussain Hazara Goth, Gulshan e-Iqbal, Karachi when the applicant/accused Muhammad Khan alias Thakur son of Juma Khan and Salman came at a motor cycle and started abusing the said Jahanzeb. Thereafter the applicant/accused took out pistol and made straight firing at Jahanzeb who sustained bullet injuries and fell down on the ground and died on the spot. The said Adil informed the complainant on phone about such incident and took the deceased in an ambulance to Jinnah Hospital. The complainant also reached the said Hospital and found dead body of his son in the mortuary. Thereafter, he lodged the F.I.R., as above. The applicant filed an application for bail before the trial Court which was dismissed by the Vth Additional Sessions Judge, Karachi East vide order dated 11-7-2009. Hence this application. I have heard Mr. Muhammad Ashraf Kazi, learned counsel for the applicant and Mr. M.A. Qureshi, learned A.P.G. for the State as well as have perused the record and the case-law cited before me. Learned counsel for the applicant submitted that though the witnesses in their 161, Cr.P.C. statements have implicated the applicant but none of them came forward to depose in the Court; that two prosecution witnesses who have been examined have not involved the applicant in the crime; that four prosecution witnesses have filed their affidavits before the trial Court wherein they have stated that neither they have seen the incident nor they were present at the site and that they have been wrongly cited as witnesses in the case. The learned counsel also submitted that there is unexplained delay of three and a half hours in filing of the F.I.R. and that no recovery has been made from the applicant. It was also submitted by the learned counsel that there is no eye witness in the case except Adil and Zeeshan but both are absconders and Adil is booked in the murder case of the applicant's father in F.I.R. No.207 of 2009 at Police Station Gulistan-e-Jauhar under sections 324, 302/34, P.P.C. He also submitted that 161, Cr.P.C., statement of eye-witnesses is entirely different than the medical report. Finally he submitted that none of the prosecution witnesses examined till date have implicated the applicant with the crime. The learned counsel also sought bail on the ground of hardship as there is delay in proceeding with the case which is not attributable to the applicant as the prosecution has failed to produce any witness on the last several dates. The learned counsel for the applicant relied on the following cases:-- (1) Mehmood Ahmed Khan and others v. The State 1995 SCMR 127, (2) Khalid Javed Gillani v. The State PLD 1978 SC 256, (3) Muhammad Sadiq and another v. The State PLD 1960 SC 223, (4) Syed Saeed Muhammad Shah v. The State 1993 SCMR 550, (5) Manzoor and others v. The State PLD 1972 SC 81, (6) Amir v. The State PLD 1972 SC 277, (7) Rehmat Ali and others v. The State 1979 SCMR 30, and (8) Allah Bux v. Nazar Hussain Shah 1979 SCMR

137. On the other hand, Mr. M.A. Qureshi, learned A.P.G., for the State opposed the bail application on merit. In this case, admittedly, the complainant is not an eye-witness of the incident and, therefore, his evidence cannot be of more than academic help. The only material witnesses who could be of any help in this case are Adil and Zee:han, however, both the absconders and Adil is also booked in the murder case of the father of the applicant. Although a number of submissions have been ma& by the learned counsel for the applicant but the same cannot be discussed for the reason that in bail matters deeper appreciation of the evidence is not permissible. Prima facie, it appears that it is a case of further inquiry and hardship as the two material witnesses are not traceable and the applicant is in custody sinc8 13-12-2008. On the last fifteen dates of hearing no witness has been produced by the prosecution. In view of the above, I accept this application and admit the applicant to bail subject to his furnishing solvent surety in the sum of Rs.300,000 with P.R. bond in the like amount, to the satisfaction of the trial Court. The observations made hereinabove are tentative in nature and shall not affect the trial. H.B.T./M-55/K Bail granted.