1. ' MUHAMMAD AFZAL SOOMRO, C.J.-This Criminal bail Application in respect of three applicants namely Muhammad Aslam Khan, Irfan Ali Bahadur and Syed Safdar Ali Shah in respect of F.I.R.
2. Bearing No, 101 of 2006 at Sakrand Police Station under sections 364, 302, 342, 201, 202/34 of Pakistan Penal Code in which the applicants are seeking anticipatory bail. The case of the prosecution is that one Lai Bibi wife of Rasool Bux Brohi lodged the said F.I.R. Which is reproduced hereinunder:-- ' "The complaint is that I am working in the houses and I am doing domestic work in the house and reside at the aforementioned address. My deceased husband Rasool Bux son of Muhammad Brohi aged about 34-35 years was working at Hub Chowki on the land of Iqbal Memon. On 7-7-2006, Muhammad Shoukat, Rasool Bux and his cousin Muhammad Siddique came to village from Hub Chowki where they disclosed the name of Khadim Brohi who is resident of Hub Chowki who had stated that he is coming to Sakrand and shall arrange for the father Muhammad Ismail brother Muhammad Hassan and uncle Ibrahim their respective sureties. My father-in-law, brother- in-law and uncle Ibrahim who were detained at Central Prison, Hyderabad. On 8-7-2006 Khadim Brohi had telephoned on the mobile phone of my husband and stated that you both should not come as he is reaching Sakrand himself. Upon this my husband and cousin Muhammad Siddiq son of Muhammad Ibrahim Brohi both together prepared themselves to go to Sakrand. On 10-7-2006 at 9-30 a.m. My husband rang me up on my mobile phone and told the meeting with my nephew Rafiq and he wants to talk with uncle Hashim and stated that Rs,2000 are to be arranged and for that Khadim Brohi and Nazir Brohi are guarantors. He further stated that he, Siddique and Nazir Khashkheli are going to Hyderabad by bus. Rafiq stated that he will talk to me after sometime. At about 9-45 a.m. Rafiq spoke with my husband on mobile phone and stated that he could talk with father Hashim but my husband's mobile was switched off. At the evening time from Sakrand Khadim Brohi talked with my husband's nephew Rafiq on telephone and stated that he has got them departed namely Rasool Bux, Siddiq and Nazir Khaskheli in Bus No,P-0118 to Hyderabad and with them in the said bus Sahib Khan Chandio, resident of village Hakim Chandio, Taluka Sakrand was also accompanying. I informed Ghulam Qadir Brohi that your guest Nazir alias Nazro Khashkheli along with guarantors has gone. At that time it was 9-45 a.m. Near link road, National Highway, which goes towards Hyderabad, near village Mir Khan Laghari Road, one Government mobile and private car some persons were sitting in police uniform and without uniform that is in plain dress who brought your guest from the bus and took them blind-folded. I also watched them and look for them they tried their best but found nothing. On 13-7-2006, I saw in the newspaper the photographs of my husband was printed in the newspaper and there was a news captioned that dacoits "Mashooq Brohi" has been killed in Police encounter by S.P. Choudhary Aslam, head of Lyari Task Force ADRC, Karachi seeing the photographs, I along with my mother-in-law, whose name is Pathani and my husband's uncle Ghulam Hussain reached Karachi where at Edhi Centre Sohrab Goth at the cold storage I identified the dead body of my husband. I requested the Edhi Centre people for the delivery of dead body of my husband who upon such demand required a police letter. I went to police and demanded the letter. The police stated that you say that this dead body is of "Mashooq Brohi" but I refused and when I said that this body is of my husband Rasool Bux Brohi.
3. Upon this police refused to give the letter and the dead body. Again on 18-7-2006 I reached Karachi and received the dead body of my husband Rasool Bux Brohi from police and brought the same at village. Accordingly burial took place. Thereafter, the result is that I being the complainant at the police station against Ch. Aslam and members of his team ADRC at the above place of wardat who have killed my husband Rashool Bux Brohi with an intention to kill and his cousin Siddique Brohi and Nizam Khaskheli and had taken them to Karachi where my husband Rasool Bux Brohi had been kept in illegal custody for two days and after giving torture to him the name of dacoit Mashooq Brohi and had murdered him in false police encounter and remaining to have been kept at a secret place.
4. ' According to the learned counsel for the applicants while giving the true background of the case has contended that prior to the lodgment of said F.I.R. By Mst. Lai Bibi wherein the applicants seek bail, yet another F.I.R. Much prior to the said F.I.R. Had also been lodged by the applicant No,l Muhammad Aslam Khan. That for the purposes of recapitulating the factual aspect of the case, the proceedings initiated by the applicant No,l, Muhammad Aslam Khan against complainant's husband and the deceased accused and others that on 12-7-2006 at 20:05 hours F.I.R. No, 101 of 2006, Police Station Gadap had been lodged at District Gadap Town, Karachi by applicant No,l, Muhammad Aslam Khan while posted as the head of the Lyari Task Force ADRC Karachi which was to the following effect:- ' "On 12-7-2006, statement under section 154 Cr.P.C. Duty Officer, Police Station Gadap Town, Karachi. Today on 12-7-2006, I,S.P. Aslam Khan, head of Lyari Task Foret, ADRC, Karachi received information through special spy that accused Mashooq Brohi, who is wanted in cases of abduction for ransom and other heinous offences of Sindh Police and Government to Sindh for whom the Government has announced award on his arrest namely Mashooq Brohi dead or alive. DSP Irfan Bahadur, Umer Shahid Hamid TPO, Lyari, Inspector Muhammad Ishaq Lashari, Sub-Inspector Asif Jamil Qureshi, Sub-Inspector Muhammad Iqbal, Sub-Inspector Mir Faroosh, Inspector Nasir-ul- Hassan S.H.O. P.S. Baghdadi, Inspector Ozair Shah, S.H.O. P.S. Sher Shah, Inspector Muhammad Ismail Lashari A.S.I. Arif Shah A.S.I., Mujeeb, A..S.I. Muhammad Ameer, A.S.I., Abdul Ghani, Lyari Town, A.S.I. Raja Khalid and the employee on Government Mobiles reached at Konkar Road, Dagara Hotel on the road and surrounded the area when at the time of 07:30 hours, accused Mashooq Brohi with his three companions riding on Silver Colour car on which number plate of ADG-648 was affixed were coming. Upon pointation made by accompanying special spy they were given signal to stop when accused Mashooq Brohi who was sitting on the driving seat. Suddenly with his three companions opened fire and started firing on me SP and accompanying officer with an intention to kill and had thus interfered in the performance of Government duties. Firing was so harsh that if not countered there was apprehension of loss of lives, therefore, for such reasons and for self-defence, I S.P. Countered the firing in response. In encounter accused Mashooq Brohi, got injured and his three companion accused firing on the police escaped from the place of incident. Injured accused Mashooq Brohi, in whose possession Kalashnikov without number and ten live loaded rounds with chamber magazines were recovered and from his shalwar's nefa on left side, one pistol 9.Mm without number and 6 rounds loaded magazine and from front seat one unnumbered repeater with 5 rounds were also recovered. On the back seat one magazine SMG in which 28 rounds were loaded was also recovered. Accused Mashooq Brohi was arrested according the rules in presence of the witnesses namely (1) Inspector Muhammad Ishaq Lashari, and (2) Inspector Nasirul Hassan.
5. Recovered unlicensed arms and immunations were taken into possession by police and were sealed at the spot. At once, injured accused Mashooq Brohi was sent for treatment through Inspector Sarwar Khan and employees on F.I.R. And the statement made be sent to TPO."
6. ' That at the very outset firstly the learned counsel for the applicants contended and argued that the applicants were surrendered/arrested in the instant crime and thereafter the investigation was transferred while violating the section 156(11) of Criminal Procedure Code read with Article 18, sub- clauses (4) and (6), of Police Order, 2002 which speaks about investigation to be conducted in case of cognizable offence by any officer In- charge of Police Station Investigation Branch.
7. ' That Sub-clauses of Article 18 of Police Order further make it clear that investigation shall not be changed except after due deliberation and recommendation by a Board headed by an officer not below Senior Superintendent of Police, one being Incharge of the concerned District. Proviso of Sub- clause 6, further provides that final order for the change of investigation shall be passed by head of Investigation in the general Police Area who shall record reasons for change of investigation, whereas, in the present case it revSals that just by making a statement and on the .Direction of SSP/INV/II, investigation of the case has been transferred from Police Station Sakrand to Police Station Aziz Bhatti to one Inspector Mobin and S.I.P. Raja Tariq. That neither any recommendation of the Board is appearing on record nor reasons for change of investigation have been assigned in the interim or final challan. Learned Counsel for the State is also silent on this point.
8. ' The learned counsel for the applicants placed an unreported case of this Honourable Court in Criminal Bail Application bearing No, 884 of 2007 decided on 18-10-2007, 2007 Pakistan Criminal Law Journal 89 and 2007 Pakistan Criminal Law Journal 1103 in which it is held that "Apparently, thus by itself order of transfer of investigation without assigning any reason therein and without recommendation of the Board is a clear violation of Provision of Article 18(4)(6) of Police Order, 2002.
9. ' Indeed, transfer of investigation from one Police Station to another may not have the effect of vitiating the trial, but will disrupt and jeopardize entrenched Principle of Law which might reflect adversely to the credibility of the Officer concerned.
10. ' It was further contended by the learned counsel for the applicants that after the lodgment of F.I.R.
11. By applicant No,l, Muhammad Aslam Khan, a Human Right Case bearing No,3861-K of 2006, was filed before the Honourable Supreme Court and the same was disposed of on 27-9-2006. Further it was pointed out by the learned counsel for the applicants that the observation made therein by the honourable apex Court while disposing of the said case is:- "The Trial Court to proceedwith the matter independently without being influenced in any manner from the present proceedings".
12. ' It was submitted by the learned counsel for the applicants that after the lodgment of-F.I.R. By Mst.
13. Lai Bibi on 8-8-2006 Mst. Lai Bibi (wife of deceased), Mst. Pathani (mother of the deceased), Muhammad Ismail (father of the deceased), Muhammad Hashim (father-in- law of the deceased) and uncle Ghulam Hussain had appeared before, the Justice of Peace duly empowered under the provisions of Section 22-A of the Code of Criminal Procedure as Magistrate at Karachi and had stated that they had lodged the F.I.R. At the instance of their relatives against the police officials.
14. However, they further stated that they had appeared before the Investigating Officer along with their affidavits and submitted before him and shown ignorance of the case and exonerated the applicants.
15. ' It was also submitted that not only the above said prosecution witnesses have exonerated the applicants but on 9-10-2006 Muhammad Azeem, Ali Hasan and Sahib Khan Chandio have appeared before the Investigating Officer and denied the facts narrated by the complainant Lai Bibi, and have not corroborated the case of complainant as stated by her in First Information Report.
16. ' It was contended by the learned counsel for the applicants Aamir Mansoob Qureshi that the case of the prosecution totally based upon the circumstantial evidence and in support thereof the prosecution has examined and recorded the statements of altogether seven witnesses connected with such narration (1) Azeem Khan (The driver of the bus), (2) Ali Hassan (conductor of the bus),
(3) Nazro Khaskheli, (4) Sahib Khan, (5) Ghulam Qadir and Muhammad Siddique alias Pandhi.
17. Learned counsel while referring the statements of the above referred prosecution witnesses contended that none above said witnesses except Muhammad Siddique have implicated the applicants, that after recording statements of said prosecution witnesses before the learned Judicial Magistrate (Sakrand) at Nawabshah, the prosecution witness namely Muhammad Siddique alias Pandhi has retracted from his statement under section 164 of Criminal Procedure Code and has filed Constitution Petition before this Honourable Court bearing No,500 of 2006 stating therein that his statement under section 164 of Criminal Procedure Code was recorded by police under duress and under coercion. It was further pointed out that Muhammad Siddique also made statement in shape of an affidavit before the learned Sessions Judge Nawabshah on 16-11- 2006 who seized of the case. Learned counsel for the applicants emphasizes that after the filing of such affidavit the prosecution has framed the charge and has examined the alleged sole star witness of the prosecution case Muhammad Siddique alias Pandhi which was also in consequence and in direction of the Honourable Supreme Court in Criminal Bail Petition bearing No,33-K of 2007.
18. That learned counsel for applicants has pointed towards the statement recorded by learned trial court and upon scrutinizing the evidence of the sole star witness Muhammad Siddique alias Pandhi it reveals that the said prosecution witness has supported his affidavit and constitution petition and denied that neither he & witness of this case nor the applicants are known to them or seen them ever before and have not supported the case of the prosecution at all.
19. ' It was submitted that the incident is shown to have taken place on 10-7-2006, while F.I.R. Had been lodged in the case on 21-7-2006, after the delay of more than 11 days thus F.I.R. Has been lodged after consultation. It was further contended by the learned counsel for the applicants that based upon the aforementioned, It is submitted that the fact is that the complainant had reported her husband Rasool Bux Brohi to have been killed which is Mashooq Brohi as the claim of the police. In fact admittedly he was a person with interchangeable names so as to confuse his identity before the public at large and such interchangeable names are Mashooq Brohi, Noor Muhammad alias Nooral alias Rasool Bux, alias Mashooq Brohi, alias Khairo alias Allah Dino.
20. ' It was further submitted that DNA test was conducted and the same was received by the Senior Superintendent of Police investigation Zone III, Karachi under report dated 2nd September, 2006 issued from the Ministry of Science and Technology, Government of Pakistan, 87, West Canal Bank Road, Tokhar Niaz Baig, Lahore.- The learned counsel had also pointed out and drawn the attention towards the report and upon examining the report it and its conclusion that Mst. Pathani and Muhammad Ismail Brohi are the biological parents of deceased Mashooq Brohi.
21. ' Learned counsel further invited my attention that in case where the applicant No,l, Muhammad Aslam Khan lodged the F.I.R. Was disposed of under Class "B". The applicant No,l, had filed Criminal Miscellaneous Applications bearing Nos.258 and 259 of 2006 against the order of learned Magistrate who had accepted the report under section 173, Cr.P.C. Under Class B, the said order was set aside by this Honourable Court with the direction to reinvestigate the case headed by the I.G.P, the case was re-investigated and the later the prosecution had submitted the report under section 173 of Criminal Procedure Code, in Crime No, 101 of 2006, lodged at Gadap by the applicant No,l Muhammad Aslam Khan on 12-7-2006, the prosecution witness No,5 is shown to be Muhammad Siddique alias Pandhi son of Ibrahim resident of Qadan Shoro Goth, Taluka Kotri, District Jamshoro. It was further pointed out that there are as many as 4 accused persons including the deceased culprit and rest of the three companions of deceased accused are shown to be absconders under section 512 of Criminal Procedure Code while the number of prosecution witnesses cited in the final charge sheet are 94 prosecution witnesses including the applicants and others who are facing trial before the learned Trial Court in the instant case.
22. ' It is argued by the applicants counsel that the F.I.R. Lodged by the applicant No,l, Muhammad Aslam Khan and after the directives given by this Honourable Court to Inspector-General of Police for reinvestigation, the Board was constituted and the investigation was assigned to one Inspector, the investigating officer procured the attendance of as many as eight witnesses including the eyewitnesses before the learned Vth Civil Judge and Judicial Magistrate Malir at Karachi Mr. Zakaullah Abro, for the purpose of recording of statements under section 164 of Criminal Procedure Code and all of the witnesses have corroborated the version of applicant No,l and few of them in their statements recorded under section 164 of Criminal Procedure Code have identified the deceased accused being the culprit of their cases and shown him as Mashooq Brohi while taking ransom.
23. ' That learned counsel lastly contended that there is no iota of evidence against the present applicants and stated that in fact the case in hand is a case of no evidence but is the product of counter version after the re-investigation and submission of challan/charge-sheet in case Crime No, 101 of 2006 lodged by the applicant No,l Muhammad Aslam Khan at Police Station Gadap on 12- 7-2006, further, stated that admitted circumstances there is no possibility of conviction at all, the charges allegedly made against them are worthless and groundless, hence the case of further inquiry is made out as per the judgments of the Honourable apex Courts and prayed for bail.
24. Learned Counsel for the applicants has cited 1995 SCM R 1730, 2006 PCr.LJ 47, 2007 YLR 694, 1996 SCM R 1845, 2005 PCr.LJ 2004, 1997 PCr.LJ 762 and 2006 SCM R 66.
25. ' Arshad Lodhi State Counsel has conceded the facts narrated above by the applicants' counsel and has not opposed the grant of bail to the applicants, he has further pointed towards the order of the Honourable Supreme Court whereby the Hon'ble Supreme Court has directed the learned trial court to examine prosecution witness Muhammad Siddique. He further stated that after the recording of evidence of prosecution witness Muhammad Siddique alias Pandhi by the learned trial court, the compliance of the order of the Honourable Supreme Court has been made so far and consequently the applicants are entitled to be released on bail.
26. ' Anyhow from the tentative assessment of the material placed on record and the guideline provided by the Honourable Supreme Court in case of (Suba Khan v. Muhammad Ajmal and others) 2006 SCM R 66, "Deep discussion and detail discussion of evidence at bail stage so as to prejudice the merits of the case of either party at the trial cannot be permitted and we strongly deprecate the expressions of opinion on the merits of the case at bail stage. Observed that the court should be conscious not to cross the barrier of possible limits while making tentative assessm ent of the evidence at bail stage. I, am of the view that it is a case of no evidence, the prosecution has shown Muhammad Siddique alias Pandhi as the star witness of the case but after framing of charge the same prosecution star witness was examined by the learned trial court and has not supported the case of prosecution at all so there is nothing left in the case of the prosecution. The judgments cited by the counsel for the applicants are quite relevant, the prosecution has failed to produce a single piece of evidence against the applicants. At this juncture the case of the applicants requires further inquiry. I allow the bail application of all the three applicants being a case of further inquiry subject to furnishing surety in sum of Rs, 500,000 each (Rupees Five Hundred Thousand) each and P.R. bond in the like amount to the satisfaction of Nazir of this Honourable Court. The observations made above are tentative in nature and would not affect the case.
27. ' This Criminal Bail Application No, 1151 of 2007 stands disposed of in the above noted terms.
28. ' The above are the reasons of my short order dated 24-12-2007.