1. ' SYED MAHMOOD ALAM RIZVI J,---This bail application is directed against the order dated 22-4- 2007 passed by the learned VIIth Additional Sessions Judge, Karachi (South), in Sessions Case No,30/2007, in Crime No,290/2006, under sections 302/324/394/34, P. P. C, registered at P.S. Clifton, whereby applications of the applicants were dismissed by a common order.
2. ' Precisely, the facts of the prosecution case are that the complaint Shamsuddin lodged an F.I.R. On 31-12-2006 at 0515 hour regarding the incident which is said to have occurred on 30-12-2006 at 2100 hours near Chandni Chowk, Upper Gizri, Clifton, in which the complainant stated that when he was present at his home he came to know that his son Masood Akhtar had a quarrel with some Brohi boys and his son had been injured as a result of firing and had been transported to the Jinnah Hospital and subsequently to Liaquat National Hospital. The complainant went to the hospital and found his son in it's Emergency Centre and there he came to know that one Imran son of Muhammad Umer along with 2-3 companions caused fire-arm injuries to his son with TT pistol with the intention to kill, hence F.I.R. Was registered under sections 324/34, P.P.C. The police arrested to accused Imran Brohi son of Muhammad Umer and thereafter, inspected the place of incidence and secured three empties of a pistol of .30 bore from the place of incidence, and also prepared site inspection memo. But on the next day the injured succumbed to his injuries, as a result, section 302, P.P.C. Was added.
3. ' The Police also recorded the statements of the witnesses namely Shagufta Parveen, Mst. Saima daughter of Shagufta Parveen and Paroo Khan. Thereafter, on the disclosure of the accused in custody, the police also arrested the applicants in the above crime. That on the pointation of accused Imran Brohi TT pistol without license was also recovered, as a result, separate case under section 13-E of the Arms Ordinance was also registered. Statements of the witnesses under section 164, Cr.P.C. Were recorded before the Judicial Magistrate-VII Karachi (South) in presence of all the three accused. Thereafter, challan has been submitted.
4. ' Per investigation report, it came to be that eye-witness Mst. Shagufta Parveen who claimed to be the "verbal" sister of deceased Masood Akhtar and her daughter Saima, was residing in the house of the complainant for the last two months and due to paucity of place, the accused along with the above two ladies, on the night of 30th December, 2006, went to Upper Gizri to examine a place for rent and when they reached the corner of House No,27 near Fatima Mosque, Upper Gizri, they found a boy sitting in the street namely Muhammad Imran Brohi and there where exchange of hot words between the deceased and the said Imran due to some objectionable remarks delivered by the said accused against the said ladies.
5. ' Anyhow, deceased proceeded towards the house of P.W. Paroo Khan and the said house was examined. The deceased requested P.W. Paroo Khan and accompany them as the said boy might attempt a quarrel again. Therefore, said Paroo Khan accompanied them. When they reached near Chandni Chowk they found accused Irnran with another two companions. The said Imran took out his pistol and pointed it towards Shagufta Parveen and asked her to hand over her gold ornaments, Paroo Khan tried to persuade Imran Brohi to let theta go but Imran Brohi pushed Paroo Khan and snatched the gold ornaments from Shagufta Parveen but on her resistance Imran Brohi caused fire-arm injuries. As a result, Shagufta Parveen fell down. Meanwhile, the deceased snatched the pistol from Imran Brohi and caused injuries to the head of Imran Brohi, whereafter, the gold ornaments fell from his hands. One of the companions of Imran Brohi snatched the pistol from the deceased and again handed it over to Imran Brohi, who beat and injured the deceased.
6. However, Mst. Saima the other lady, succeeded to save her life by escaping from the spot. All the three accused said to have made their escape good.
7. ' All the prosecution witnesses and accused Imran Brohi reached Jinnah hospital for medical treatment. Police also reached the hospital and tried to record statements of injured but as per MLO the injured/deceased was not in a proper condition. Meanwhile, the family members of the deceased transferred him to Liaquat National Hospital where he succumbed to his injuries therefore, section 302, P.P.C. Was also added in the F.I.R.
8. ' It is, inter alia contended by the learned counsel for the applicants that the whole case was false, fabricated and requires further enquiry. ' That neither the names nor the features of the applicants are ' mentioned in the F.I.R. That no injury has been caused by the applicants. He has argued that the applicants have been booked on the basis of so-called statement of the main accused.
9. ' He has further contended that after going through the statements of both the ladies, it transpires, that no case has been made out against the applicants but they are in custody since 1-1-2007 and no witness has been examined as yet. That in the statement recorded under section 164, Cr.P.C.
10. P.W. Saima has not stated anything about the injury of her mother or snatching of gold ornaments and did not identify Imran son of Saddiq and she did not say anything against any of the accused and even no certificate has been appended with the said statement, while the statement under section 164, Cr.P.C. Of Mst. Shagufta is, otherwise, as she claimed, that prior to inspection of the tenant, the accused had snatched gold ornaments from her at gunpoint. Even then they inspected the proposed tenant and when they were coming back, the accused persons started beating the deceased. She further claimed that she had paid Rs,25,000 to the deceased. She has not implicated any of the accused before the Judicial Magistrate.
11. ' He further argued that the main accused Imran Brohi against whom the main charge has been assigned was also sent to the hospital for his medical treatment though it was alleged that all the accused persons escaped from the scene, which is against common sense. That in the F.I.R.
12. Nothing has been mentioned about the presence of ladies therefore, in the above circumstances, applicants are entitled for grant of bail.
13. ' Learned State counsel has opposed the bail application but was not able to controvert the above factual position.
14. ' Heard both the learned counsel and perused the record.
15. It is, an admitted fact that the complainant was not an eye-witness and the F.I.R. Was registered after a delay of approximately 7/8 hours, in which presence of both the ladies were not shown, and the complainant has not stated how he came to know about the above facts as well as the name of Imran son of Muhammad Umer Brohi. That the conduct of both the ladies appears to be very doubtful as being mother and daughter and alleged eye-witnesses both have contradicted each other on material points. Even otherwise, after going through the statements recorded under section 164, Cr.P.C. Nothing is available against the applicants. No statement under section 164, Cr.P.C. Is available of P.W. Paroo Khan and his presence is also not supported by both the ladies.
16. Instead statement under section 164, Cr.P.C. Of one Farooq is available wherein he is said to have admitted that the deceased came to examine the proposed tenement and the accused persons beat him and injured the deceased, as well as one woman, but he did not identify the applicants in Court.
17. ' After scrutiny of the prosecution case, prima facie the involvement of the applicants is highly doubtful, hence the case requires further enquiry. They are therefore entitled to bail, and therefore, bail was granted to the applicants subject to furnishing solvent sureties in the sum of Rs,5,00,000 (Rupees Five Lacs Only) each with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
18. ' Above are the reasons of the short order dated 13-8-2008.