' SALMAN HAMID, J.---Haroon Khan, son of Sari Khan, (applicant) is booked in F.I.R. 401 of 2011 of Police Station Shah Latif Town, Karachi for offences punishable under sections 353, 324, 186, 302, 34, P.P.C. Earlier in time bail application in Sessions Case No,501 of 2001 was moved by the applicant which was dismissed by the 1st Additional Sessions Judge, Malir, Karachi in terms of Order dated 18-8-2011 where-after present bail application has cropped up.
2. It is unfolded in the F.I.R. Dated 3-6-2011 by A.S.-I. Khetomal that the applicant along with other four co-accused duly armed started firing on a sugar truck at main Chowk of Quaidabad on 3-6- 2011, on which date there was KESC strike and because of cross firing one Muhammad Ramzan, son of Abdul Rasheed received a bullet injury who subsequently died at Jinnah Hospital. Because of such firing the applicant also received bullet injuries on his hand and hip. Applicant was arrested at the time of such firing from whose possession a mobile phone, a knife and an unlicensed TT pistol was also recovered. A case against him under section 13-D Arms Ordinance was also registered.
3. In above view of the matter, the learned counsel for the applicant argued that the applicant is innocent and has been implicated in the case with mala fide intention. It was argued that F.I.R. Was lodged after a delay of 05 hours and therefore the case of the prosecution became doubtful. It was also argued that there was no private Musheer despite the fact that according to the F.I.R. Itself it was a day light incident in a thickly populated area. It was also mentioned that actually the applicant is a student of Swedish Technical Institute, Quaidabad and at the time of incident he was just passing from the area to attend the above Institute and he has nothing to do with the alleged incident whatsoever. It was also argued that the applicant himself sustained bullet injuries because of such firing and he has nothing to do with the death of Muhammad Ramzan who died because of firing of either police or because of the firing of other miscreants. It was also argued that there was no FSL report as yet to show and connect the applicant with the alleged firing and that sections 353 and 186 P.P.C. Are bailable and as far as section 324 is concerned, it was lateron converted into section 302 and admittedly since there were allegations of firing of four persons it is yet to be seen at trial as to from whose firing Muhammad Ramzan died. Therefore it was argued that the case require further inquiry. In support of his contentions learned counsel for applicant relied upon the case of Muhammad Asif v. The State (2006 PCr.LJ 883), Tasaver and another v. The State (2006 PCr.LJ 629), Muhammad v. The State (2007 PCr.LJ 1848), Imran Sikandar v. The State (2007 PCr.LJ 1497) and Abou Bakar v. The State (2010 PCr.LJ 984).
4. The learned state counsel opposed the application and stated that the name of the applicant is mentioned in the F.I.R. And that recovery has also been made from him of the TT pistol, therefore no case of bail has been made out.
5. I have heard the learned counsel for the applicant as well as the state counsel and perused the record.
6. Though it may be true that the name of the applicant appears in F.I.R. But it seems that no specific role has been attributed to him in such F.I.R. And there are bald statements without any substantiation. There also seems to be violation of law when it comes to recovery of the alleged weapon from his possession and its sealing and it is highly improbable that in cross firing from either end no injuries were sustained by the police personnel and no damage had been caused to their official vehicle. It has also come on record that the applicant is a student of Swedish Technical Institute, Quaidabad where he was going. Since the applicant received bullet injury on his hip, prima facie shows that he was not involved in the firing otherwise he would have had not received bullet injury on his hip. It is yet to be ascertained as to from whose bullet when there was cross firing between the applicant and other culprits, Muhammad Ramzan died. All this require further inquiry.
7. In the case of Muhammad Asif, he was enlarged on bail when a single judge of this court came to the conclusion that no specific role had been attributed to him whereas in the case of the Tasaver again a single judge of Lahore High Court enlarged him on bail by coming to the conclusion that no role was ascribed except that ineffective firing at the time of occurrence had been attributed to him and such ineffective firing was yet to be establish to the effect that the accused had common intention in killing the deceased therein and the intention being held to be always subjective state of mind and difficult to determine at the bail stage in absence of compelling stage for positive deduction, the applicant therein was enlarged on bail as the case required further inquiry. In the case of Muhammad, a single Judge of this court observed that though the name of the accused was specifically mentioned and he was also present at the place of incident, duty armed with pistol, but except allegation that he also made firing and no specific role having been found attributed against such applicant in causing of death to the deceased, he was enlarged on bail. In the case of Imran Sikandar again a single Judge of Lahore High Court enlarged the accused on bail when it was found that no specific role had been attributed to him despite the fact that a rifle was recovered from him and it was found to be immaterial as no crime empties had been sent to FSL for comparison at the time of bail. Similarly in the case of Abou Bakar where again a single Judge of Lahore High Court enlarged the accused on bail when it was found that the case required further inquiry and to such conclusion the learned Judge arrived at because of the reason that though the accused was carrying a rifle it was yet to be proved whether from it, murder had taken place.
8. Gauging the above precedents from the case in hand, it would become abundantly clear that first of all the recovery of TT pistol itself is highly doubtful and in violation of law and that there is no FSL report available as of day to connect the applicant from the commission of offence of firing, whereby Muhammad Ramzan had died which again is yet to be proved and require further inquiry and that though the name of the applicant is mentioned in the F.I.R. But no specific rote has been assigned to him. Only general allegation in the F.I.R. Are available. All this makes the case that of further in inquiry as contemplated under subsection (2) of section 497, Cr.P.C. The applicant is therefore enlarged on bail forthwith, if not involved in any other case subject to his providing a solvent surety of an amount of Rs,100,000 (Rupees One Hundred Thousand only) and PR bond in the like amount to the satisfaction of the Nazir of this court.
9. The observations made hereinabove are tentative and/or for the purposes of present bail application which would by no stretch prejudice the trial of the case. Application is disposed of in above terms.