1. ' DR. RANA MUHAMMAD SHAMIM, J.-By this application applicant facing trial for the offence under sections 147, 148, 149,'324, 302, 109 P.P.C. Registered at Police Station Model Colony, Karachi under F.I.R. No,95 of 2005 seeks bail.
2. ' Brief facts of the case are that the complainant lodged the F.I.R. Alleging therein that while he along with his brother and security guards was leaving their agency for home two cars intercepted the vehicle of his brother along with two motorcycles 125cc having two persons on each motorcycles armed with fire-arms, three persons got down each from two cars who were also holding fire-arms in their hands while two persons were sitting lonely and one armed man from each motorcycle got down. All these persons started indiscriminate firing on the vehicle of brother of the complainant in order to kill him. On this the complainant and his guard also started firing upon the assailants due to which they fled away whose Hulia is mentioned in the F.I.R. And can be identified on seeing. The complainant thereafter found his brother in the pool of blood and took him to the hospital where he was pronounced dead. In the said incident one guard was also killed and three received injuries, hence the complainant lodged the F.I.R. Against Rifat Zaman Kiyani, Khalid Zaman Kiyani, Jamil Ahsan Kiyani, Syed Zafar Hussain, Ibn-e-Omar, Imran Kiyani and 6 unknown persons as two days before they have threatened the brother of complainant.
3. ' Learned counsel for the applicant contended that it is second application. He submits that his first Bail Application bearing No, 1167 of 2007 was dismissed by order dated 1-(5-2007. Being aggrieved by the said order the applicant moved Criminal Petition No,86tK of 2007 before the Honourable Supreme Court which was dismissed as withdrawn on 30-7-2007 with direction to the learned trial Court to complete the proceedings against the absconding accused expeditiously and examine complainant and two witnesses namely Jehangir Raza and Hasnain Raza preferably within a period of three months. Learned counsel for the petitioner/applicant prayed that the petitioner may be allowed to file fresh bail application, if no progress is made in the learned trial Court.
4. Honourable apex Court held that the petitioner would be at liberty to move such application if so advised. The applicant moved bail application before the learned trial Court on the basis of the direction period was over. However, his bail application was dismissed by the learned trail Court vide order dated 11-10-2007 hence this application.
5. ' Learned counsel for the applicant contended that the first investigation was conducted by SIP Chaudhry Muhammad Ilyas of Police Station Model Colony Karachi* No post-mortem was conducted and the dead body was shifted to Eidhi Cold Storage, Sohrab Goth Karachi. Earlier to this one A.S.-I. Aijaz Hussain on 10-7-2005 , at 22-30 hours reached the Erhergency Ward of J.M.P.S. And prepared memo, of dead body of the guard Sawat Khan in presence of P.C. Shoukat Ali and Azhar Hussain and he recorded the statement under section 161 Cr.P.C. Of three injured guards namely Alam Khan, Jan Gul and Peer Rehman, accompanying the deceased guard at the time of incident but none of these injured guards have supported the case of the complainant who subsequently lodged F.I.R*. All the security guards who claimed to be sitting in the double cabin car stated that they could not see the assailants due to firing. He further submitted that after the delay of more than 13 hours on 11-7-2005 at 11-00 a.m. i.e, on next day of the incident, site memo, was prepared without any explanation despite the fact that the distance between the police station and the place of incfdent was about 2-1/2 K.M. Only. He further submitted that on 18-7-2005 S.S.P.
6. A.V.C.C. Assigned the investigation to Sub-Inspector Zafar Iqbal who recorded further statement of the complainant Rais Farooq on 19-7-2007 who gave name of the three guards of deceased Jan Gul, Alam Khan and Peer Rehman to the Investigating Officer for the first time. The complainant stated the motive for the murder to be the dispute of plots. The Investigating Officer after the delay of 10 days recorded the statement of P.W. Muhammad Shahid and Muhammad Ishaque without any explanation. The witnesses for the first time disclosed that in the first week of June, 2005 they had gone to the house of the applicant known as Ghakhar House in connection with sale/purchase of _ plots where they found one Zafar Hussain of the society along with Abu Umer and they saw that they were planning to murder Rais Khurram with the assistance of two young people on payment of unknown price and they heard the conspiracy hatched at the house of the applicant.
7. On 21-7-2005 the said Investigating Officer also recorded the statement '' of one Abdullah Lashari, personal staff of deceased who stated that two days before the incident in the Shola Estate Agency the deceased informed him that he had received a threatening call from the applicant. On the basis of this the applicant/ accused was arrested on 26-9-2005 in the District Court premises soon after his pre-arrest bail application was dismissed. On 30-9-2005 the investigation was again transferred to Inspector Azeem Khan SlO Police Station Pak Bazaar but no progress made. On 4-10- 2005 the investigation of the case was again transferred for fourth time to Inspector Aijaz Ahmed Qaimkhani, S.-I Police Station, Gulshan-e-Iqbal, Karachi, who on 6-10-2005 again recorded the statements of the witnesses Jehangir Raza and Hasnain Raza and thereafter statements under section 164 Cr.P.C. Were recorded before the Mgistrate. Both the said witnesses stated that they heard the conspiracy hatched up at the house of the applicant to murder the deceased. The said Investigating Officer has also recorded the statement of shopkeepers namely Shaikh Muhammad Ishaque and Waqar Hussain where the incident took place. Both have* stated that they have not witnessed the incident. Consequently on 12-10-2005 the final challan was submitted in the Court of law.
8. ' Learned counsel for the applicant submits that the applicant admittedly was not present at the time of incident. The allegation against him is only that he abetted and instigated the actual culprits for killing the deceased person. All the four Investigating Officers who investigated the case failed to connect the applicant with the commission of the offence. The conspiracy and abetment, as alleged, was for the first time disclosed by two witnesses after 30 days of the alleged offence, which makes the case itself the case of further inquiry. He submits that the injured guards, who were present with the deceased at the time of incident and whose statements were recorded on the same night of incident, have not implicated the applicant. He further submits that the statements of the prosecution witnesses were recorded after considerable delay without any explanation. He further submits that it appears that no reasonable ground exists for believing that the applicant is guilty of offence- as alleged. He further submits that four investigations by different Investigating Officer makes the case itself of further inquiry and there are no reasonable grounds to believe that he is guilty of such offence punishable with death, imprisonment for life or with ten years. The Court will not conduct preliminary trial/inquiry but will make tentative assessment.
9. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage. He further submits that there is a tendency in the society to involve innocent persons with the guilty person for ulterior motives and once an innocent person is falsely involved in a serious case then he has to remain in jail for considerable and indefinite period to conclude the. Trial. When a person is detained in jail not only the accused but all his dependents suffer hardships. He further submits that whenever reasonable doubt arises with regard to the participation of an accused person in the crime he should not be deprived of benefit of bail. Lastly he submits that neither the direction of this Court nor the Honourable Supreme Court for examining the complainant and two witnesses were complied with. In support of his contentions he has placed reliance' on the cases of Abdullah Khan v. Abdul Qayyum (1996 SCMR 493), Malik Muhammad Iqbal v. Syed Abid Hussain Shah (2000 PCr.LJ 1171). Allama Syed Sajid Ali Naqvi v. The State (PLD 2004 Lahore 549) Maratab Ali v. The State (1997 PCr.LJ 1183), Qabil Shah v. The State (PLD 1960 (W.P.) Karachi 697), Syed Amanullah Shah v. The State (PLD 1996 SC 241). Muhammad Sharif v.
10. The State (2002 YLR 2619). Syed Saeed Muhammad Shah v. The State (1993 SCMR 550).
11. Muhammad Sadiq v. The State (PLD 1960 SC (Pak) 223). Bashir Ahmed v. The State (2007 MLD 1872)
12. Kaloo Khan v. Muhammad Manzoor Khan (1997 MLD 660). Vikio v. Abdullah (1980 PCr.LJ. 602), Gul Hasan Penhwar v. The State (1997 SCMR 390), Ashok v. The State (1997 SCMR 436), Muhammad Aslam v. The State (1999 SCMR 2147), Anwar v. The State (2003 PCr.LJ 1416), Rahim and Rahmak v.
13. The State (1998 PCr.LJ 821), Nazar Muhammad v. The State 1987 PCr.LJ 1754), Khalik Taqi v. The State '
14. (1999 PCr.LJ 271) and Nasrullah v. The State (1995-MLD 515).
15. ' On the other hand learned counsel appearing for the complainant and learned A.A.-G. For the State have vehemently opposed the grant' of bail to the applicant as it is a double murder case and they were murdered by the unknown assailants with the abetment and connivance of the applicant as evident from the statements of two witnesses recorded under section 164 Cr.P.C. That they heard the conspiracy hatched between the two unknown young men and the applicant.
16. ' I have heard the learned counsel and with their assistance perused the material available on record and so also the case-law cited by the learned counsel.
17. ' Admittedly the applicant was not present at the time of incident and no specific role has been assigned to the applicant connecting him to the alleged offence. The witnesses of incident i.e, guards have not supported the version of the complainant who have also not implicated the applicant. In such-like situations it has been held in the case of Muhammad Sharif (Supra) that accused not present on the spot and no overt act is attributed to him and allegation of conspiracy did not match the contents of F.I.R., accused cannot be kept as hostage for acts of others and bail was granted.
18. ' Prima facie the case against the applicant is of a conspiracy hatched to kill which has been disclosed by the two witnesses after 30 days of the incident to the fourth Investigating Officer.
19. Nobody made such disclosure in first three investigations which creates doubts that it is afterthought. It has been held in the case of Malik Muhammad Iqbal (Supra) that case of conspirator not present on the spot is at lower footing; allegations of conspiracy can easily be set; up between inimicial parties and in such circumstances the bail was allowed. In this case it has also been observed that the prosecution witnesses, despite having the knowledge of conspiracy being hatched did not report the matter to police immediately and kept mum for thirty days for which no explanation was available on record.
20. ' The statements as to the abetment and conspiracy were admittedly recorded after a delay of about 30 days and as held in the case of Abdullah Khan (Supra) the bail cannot be withheld simply on the basis of statements of witnesses recorded under section 164 Cr.P.C. Supporting allegation of abetment made at a very belated stage.
21. ' Admittedly the statements of the prosecution witnesses were recorded after a considerable delay and no explanation whatsoever was offered by the Investigating Officer. It has been held in the case of Syed Saeed Muhammad Shah (Supra) that if the statements of prosecution witnesses recorded under section 164 Cr.P.C. After a considerable delay without any explanation are to be ruled out of consideration. It has also been held in the case of one Nasrullah (Supra) that no doubt statements of witnesses recorded under section 164 Cr.P.C. Can be used for cross-examining the witnesses who made it and a result can be achieved accordingly but mere recording statements of prosecution witnesses does not establish that whatever the witness stated was true.
22. ' The direction of Honourable Supreme Court for examining complainant and two witnesses was not also cpmplied with by the learned trial Court. Perusal of the diary sheet of the learned trial Court shows that there was no lapse on part of the defence in the trial of the case. Even the prosecution witnesses were not examined in spite of fact that on 9-10-2007 complainant was present but he was not examined and other P.WL Hasan Raza who is confined in Central Prison Karachi could not be produced and examined. On 11-10-2007 the complainant was present but not examined by the prosecution. It clearly shows that the directions of the apex Court were not complied with and the complainant and the two prosecution witnesses were not examined. In such circumstances when the orders of the superior Courts are not complied with within the stipulated period, it has been held that the applicant is at liberty to move his bail application and in the cases of Gul Hasan Penhwar and Ashok, Muhammad (Supra) the Honourable Apex Court has been pleased to grant bail to the accused.
23. ' The applicant is in custody for the last 2 years and six months without any progress in the trial and only charge has been framed so far. It has been variously held by the apex Court that the accused may not be kept behind the bars for an indefinite period as a punishment for an offence, which is yet to be proved in trial. I am also guided by the judgment of the Division Bench of this Court in case of Ghulam Abbas alias Abasi v. The State (PLD 2005 Karachi 255) wherein it has been held that the delay was acknowledged as statutory right by the legislation but for the best known wisdom same has been withdrawn but bail has always been conceded by the apex Court even when such provisions were not available on the statute book and even in some cases where such restriction was imposed the Court conceded bail on the ground of undue delay. It has also been further observed that inordinate delay if not explained amounts to abuse of process of law even in cases of capital punishment and there is consensus of opinion that if the delay is so shocking and scandalous, it amounts to abuse of process of law. Even where the directions of the superior Courts are not complied with without any justifiable reason may furnish a good ground for bail.
24. ' In view of the above, in my humble view, the applicant has made out a prima facie case for grant of bail. Accordingly, he is admitted to bail subject to his furnishing surety in the sum of Ks.500,000 with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. The complainant/State may move for cancellation of to the applicant in case material evidence against the applicant come on record during the trial of the case.