1. Granted subject to all just exceptions.
2. Heard learned counsel for the applicant as well as Additional Prosecution General.
The counsel for the applicant has contended that the applicant/accused mother inducted in his house one Muhammad Afzal as tenant four years prior to the incident who was tailor master by profession and that said Muhammad Afzal who is an absconder in this case used to store explosive material for preparing fire crackers and on the day of incident the material was exploded and the wall of the house also collapsed and in the incident one boy namely Kashif aged about 9 years was injured along with other three children but subsequently Kashif died. The police registered the FIR No, 284/2006 under Sections 302, 324, 285, 420; 34 PPC and Section 4/5 of Explosive Act at Police Station Mominabad, Karachi. After three days of the above FIR police registered another FIR No, 287/2006 under Section 188 of Explosive Act. According to the learned counsel there is a contradiction between these two FIRs, He further contended that the present applicant who was not even present at the spot on the day of incident nor he had any connection regarding the storage of explosive material by his tenant Muhammad Fazal (absconding accused). After registration of the case the applicant approached this Court vide. Cr. Bail Application No,261/2007 and he was admitted to interim pre-arrest bail vide order dated 4.4.2007 and subsequently the said it ier was recalled and his bail application was' dismissed vide order dated 31.10.2007. Learned counsel further contended that the accused was not taken into custody by the Court nor he was arrested by the police and the police after delay of 18 months submitted the challan before the Court of Ist ADJ, Karachi (West) under Sections 322/329/285 and 427/34 PPC. The learned counsel thereafter advised the applicant/accused to surrender himself before the Court and the accused voluntarily did that on 20.10.2008 and the application for post arrest bail was dismissed on 24.10.2008 and against that order has filed the present application for bail.
He has further contended that the police has converted the offence under Section 302 to one under Section 322 PPC after investigation which is punishable only for diyat whereas the other offences are bailable. Not only this the complainant Pervaiz Akber who being the father and Wali of deceased boy Kashif also swear an affidavit before the learned trial Court whereby he in clear words stated that he shall be thankful to the Court as he did not want to proceed with the case against the present accused person namely Muhammad Khalid Qureshi and others except the absconding accused Muhammad Afzal.
Learned Additional Prosecutor General opposes the bail on the ground that police has no authority to change the offence from Sections 302 to 322 PPC and normally the complainant who is the father and Wali of deceased boy can only exonerate the accused as far as his son is concerned whereas the other Walis have not consented nor it has been brought on record how many Walis are there except the father of the deceased boy. He further contended that in the incident this Kashif was not only injured but subsequently died but there are three other children and their parents have not exonerated the applicant/accused and he further referred to the memo of vardat whereby according to him the applicant/accused was the business partner of the absconding accused Muhammad Afzal and he was equally responsible for storing the explosive substance.
As admittedly the police has submitted challan after 18 months of the incident and that too converted the offence under Section 302 PPC to Section 322 PPC which is only punishable only for Diyat and other offences are bailable, the affidavit filed by the complainant exonerating the applicant/accused made the case of the applicant/accused of further inquiry and more over there is nothing in the police file which can reveal that the applicant/accused was business partner and equally responsible with the absconding accused for storing the explosive substance. All these factors have made the applicant/accused liable to be admitted on bail and as such he is admitted on bail subject to his furnishing surety in the sum of Rs,200,000/- and P.R bond in the like amount to the satisfaction of the trial Court.
The above discussion is of tentative in nature and will not prejudice the mind of the dial Court and the trial Court is directed to frame the charge on the next date of hearing and proceed with the case as quickly as possible.