1. ' MUHAMMAD ATHER SAEED, J.---This bail application has been filed against the order of the Additional Sessions Judge Karachi (South) dated 3-12-2007 in Sessions Case No,496 of 2006.
2. ' On the first date of hearing Mr. Muhammad Ashraf Kazi Advocate was present whereas Ms. Akhtar Rehana Additional Prosecutor-General Sindh was present for the State and complainant Shah Jahan was present in person. On this date the Advocate for the applicant and the learned counsel for the State had argued the case but the complainant had sought time to engage a counsel. On the next date of hearing, the complainant appeared before the Court and submitted that due to paucity of funds he had not been able to engage a counsel. At this point of time, Ms. Masooda Siraj Advocate who was sitting in Court in some other case volunteered at the request of the Court to appear probono on behalf of the complainant and today I have heard the arguments of Mr. Ashraf Kazi Advocate for the applicant and Mrs. Masooda Siraj learned counsel for the complainant.
3. ' Before deciding this bail application this Court would like to record its gratitude for Ms. Masooda Siraj Advocate who at the request of the Court had represented the complainant probono and provided invaluable assistance to the Court.
4. ' Brief facts of the case as stated in the F.I.R. Are that the complainant, who is a resident of Lyari and is a driver by profession, was sitting at the Chakiwara Chowk at about 1-25 a.m. On 9-7-2006 when he heard the sound of firing and on hearing the sound he rushed to the place from where the sound was coming. There he saw Aftab and his brother Adnan the present applicant running away from that place and according to the complainant he saw pistol in the hands of Aftab. On reaching the place the complainant saw his brother Khalil Ahmed lying there in the injured condition and on examination he saw that said Khalil Ahmed had sustained fire shot on his right check and blood was oozing and one his neighbor Sajjad who was present there informed him that both Aftab and his brother Adnan the applicant came and immediately Aftab took out his pistol and fired on Khalil Ahmed who fell down and then they fled away. The complainant took Khalil Ahmed to hospital on a Rickshaw where he was informed by Doctors that Khalil Ahmed had expired. This F.I.R. Was lodged at about 0500 hours and the police arrested the applicant Adnan whereas co-accused Aftab is still absconding.
5. ' The applicant filed a bail application before the Additional Sessions Judge who vide the impugned order dismissed the bail application and hence this bail application.
6. ' I have heard Mr. M. Ashraf Kazi the learned counsel for the applicant, Ms. Rehana Akhtar the learned Assistant Prosecutor-General and Mrs. Masooda Siraj the learned counsel for the complainant.
7. ' Mr. M. Ashraf Kazi filed a statement with which he attached a number of documents including statements under sections 161 and 164. Cr.P.C. Of witness Sajjad Ali, statements under sections 161 and 164 ,Cr . P.0 . Of witness Rizw an Iqbal, statement under section 161, Cr.P.C. Of witness Jafar Ali and Zafar Ali, memo of the place of incident, memo of recovery of illegal weapon and medico legal report. The learned counsel took me through this statement to point out the alleged discrepancies in these statements. He pointed out that in the statement under section 161, Cr.P.C. Witness Sajj ad Ali stated that Khalil Ahmed was killed by Aftab and Adnan by firing. However, in the said statement he has also stated that one bullet of Aftab had hit Khalil Ahmed on the right side of his face and after being hit by this bullet Khalil Ahmed fell down. He pointed out that the same witness in his statement under section 164 had said that he had seen Aftab Ahmed fired on the right cheek of Khalil after which he fell down. He also stated that Adnan was just firing in the air and the deceased did not expire due to his firing. Witness Rizwan Iqbal in his statement under section 161 had made the same allegation that Khalil had been killed by Aftab and Adnan. However, he had in this statement said that he saw bullet of Aftab hit the right side of Khalil Ahmed. In his statement under section 164, Cr.P.C. The same witness Rizwan Iqbal says that so far as the applicant is concerned he saw that the applicant was just abusing and extending threats but the deceased did not expire from his fire. In his statement under section 161, Cr.P.C. Jafar Ali had also testified that although both Aftab and Adnan had tried to fire upon the deceased but it was one bullet of Aftab which had hit the face of Khalil Ahmed at cheek and the same assertion has been made that Khalil Ahmed was hit by the bullet fired from Aftab's pistol. The learned counsel took me through the memo. Of the place of incident to point out that from the place of incident five empties of .30 bore pistol and blood stains of the deceased had been recovered and pistol was also recovered from the applictnt Adnan on.The date of his arrest. However, the pistols and bullets according to the learned counsel were not sent for ballistic expert's report. The learned counsel on the basis of the above submissions argued that though the applicant may have been present on the site of incident and may have taken part in abusing and threatening the accused and may have resorted to firing but according to the evidence and statement of the accused the fatal bullet was fired by the co- accused Aftab who was absconding and the injury, which according to the post-mortem report is the cause of death, has been inflicted from the bullet of Aftab and not Adnan and, therefore, further evidence is required to connect him with the crime. He stated that in a number of cases superior Courts have held that concession of bail may be granted in cases where no specific role has been assigned to the applicant/accused and at worst he has been accused of ineffective firing only. In this connection he relied on the following judgment of this Court.
(1) PLD 2008 Karachi 157 and
(2) 2008 SCMR 884
3. Unreported order of Single Judge of Sindh High Court dated 28-8-2006 passed in Criminal Bail Application No,S-487 of 2006.
4. Unreported order of Single Judge of Sindh High Court dated 18-9-2006 passed in Criminal Bail Application No,S-326 of 2006.
8. ' The learned counsel, therefore, prayed that applicant may be enlarged on bail.
9. ' The learned Assistant Prosecutor-General Ms. Rehana Akhtar opposed the grant of bail and submitted that the applicant has been charged under section 302/34, P.P.C. And the sentence under these sections fall under the exception to section 497 and, therefore, he was not entitled to bail. She, therefore, supported the order of the Additional Sessions Judge and prayed that the bail application may be rejected.
10. ' The learned counsel for complainant Ms. Masooda Siraj contended that the applicant accused had resorted to firing on the deceased and it is yet to be proved as to from which pistol the fatal bullet, which resulted in the death of the deceased, had been fired. She said that even otherwise the offence fully falls within the provisions of section 34, P.P.C. As it is clear that the act was done by the applicant and his brother co-accused Aftab in furtherance of the common intention to kill the deceased Khalil Ahmed. She also brought the case diary of the case from the Court of Additional Sessions Judge and pointed out that the delay in the finalization of the case has occurred due to the non-presence of the different counsel and the requests for adjournment on behalf of the applicant/accused. To substantiate her contention she read the diary entry of 15th October, 2008 when the case was adjourned at the request of the applicant/accused and a number of earlier diaries where the case was adjourned due to the non-presence of the defence counsel. She read out the order of the Additional Sessions Judge to point out that the Additional Sessions Judge had allowed the applicant to file a fresh bail application after the complainant and witnesses have been examined. In support of her contentions she relied on the following judgments:--
(1) Sher Muhammad v. The State (2000 SCMR 1451), (2) Manzoor Hussain v. The State (PLD 2008 Karachi 157 and (3) Riaz Ali v.The State (2008 SCMR 884).
11. 'I have examined this bail application in the light of the arguments of the learned counsel and have examined the record of the case and carefully perused the impugned order, the F.I.R, the various statements under sections 161 and 164, Cr.P.C. Of the witnesses and the judgments relied on by the learned counsel.
12. From a perusal of the statements of the witnesses under sections 161, and 164, Cr.P.C. And the F.I.R. It transpires that the complainant and the witnesses have all stated that the bullet which caused the death A of the deceased, had been fired by the brother of the applicant and co-accused Aftab although some witnesses have stated that the applicant had also resorted to firing, but none of them have accused the applicant of firing the fatal bullet. It has also been mentioned by the witnesses that the incident had erupted when the deceased had asked Taj Muhammad the neighbor whose daughter was getting married and to celebrate the occasion his guests were resorting to aerial firing, to get the firing stopped which enraged Taj Muhammad and he started fighting with the deceased. At this point of time, the applicant and his brother Aftab were stated to have come out of the house and started abusing and threatening the deceased and firing upon him. In the F.I.R. The complainant had stated that he has no enmity with the accused persons and, therefore, in my opinion the action of the applicant was spontaneous and further enquiry is required to prove the common intention. The learned counsel for applicant has also relied on my judgment in Criminal Bail Application No,487 of 2006 dated 28-8-2006 and in Criminal Bail Application No,326 of 2006 dated 13-9-2006. In both these cases I had after examining a number of cases on the issue, had come to the conclusion that bail cannot be denied to accused person whose role in a murder of deceased was just that of instigator or who is accused only of ineffective firing and, or abusing or threatening the deceased. In this case I had also discussed the judgment in the case of Sher Khan v. The State (1980 SCMR 193) where the Honourable apex Court had granted bail after reaching the conclusion on the facts of the case as under: "The contention raised is that Respondents were a member of the party, two of whom killed the deceased by firing and therefore, they should be deemed to be the members of the unlawful assembly for the furtherance of whose common intention or object, the accused persons Dost Muhammad and Kohri killed deceased Fida Muhammad. In this connection Mr. Manawar has referred me to the statement of Muhammad Khan brother of deceased Fida Muhammad recorded by the police under section 161, Cr.P.C. But according to this statement as well it is not clear if all these persons formed occurrence with intention of killing Fida Muhammad or even that they had the knowledge that they would encounter the deceased there."
13. ' I have also perused the judgments relied on by the learned counsel for the complainant. In the case of Sher Muhammad v. The State quoted supra the Honourable Supreme Court of Pakistan had refused to grant bail where it was alleged that the petitioner had caused fire-arm injury on the left eye of the deceased and corroboration of assertion was proved by the postmortem report.
14. ' The case of Riaz Ali v. The State quoted supra was a case of pre-arrest bail and the Honourable Supreme Court has held that the considerations for grant of pre-arrest bail were quite different of those of post-arrest bail. In that case also specific role was assigned through F.I.R. But it is not clear from the judgment as to what specific role was assigned 'to the applicant/accused.
15. ' In the case of Manzoor Hussain v. State quoted supra the learned Single Judge of this Court had refused an application for grant of pre-arrest bail because he had reached the conclusion that the accused/ applicant had shared common intention with the main accused on the facts of the case and it was premeditated murder whereas in the present case the facts point out that it was on spontaneous action and was not premeditated. I am, therefore, of the opinion that all the three cases relied on by the learned counsel for the complainant are distinguishable on the facts of the case.
16. At this stage, it may also be pointed out that the accused has been in custody for more than two years and so far for different reasons including seeking of adjournments by the applicant/accused on some occasions, the case has not progressed and although the impugned order was passed in December, 2007 but till today despite passing of ten months the statements of the complainant and witnesses could not be recorded.
17. On the basis of above discussion, I am of the considered opinion that the applicant is entitled to bail. I had, therefore, after hearing the arguments of the learned counsel in Court today admitted the applicant on bail subject to furnishing solvent surety in the sum of Rs,500,000 (rupees five hundred thousand only) and P.R. Bond in the like amount to the satisfaction of the trial Court.
18. Further, I had also directed the applicant to appear before the Court on every date of hearing and I warned him that if he fails to attend the trial Court on any date this concession of bail shall automatically stand cancelled and the bail bond shall be forfeited.
19. ' In the end it is clarified that the observations in this order are tentative in nature for the purpose of bail only and the case should be disposed of by the trial Court without being influenced by these observations.
20. ' The above are the reasons in support of my short order delivered in Court today.