1. ' SYED HASAN AZHAR RIZVI, J.---Through this Criminal Bail Application, the applicants Himat Khan, Parvez Khan and Nasrullah Khan seek their post-arrest bail in case F.I.R. No,570 of 2010, under section 302/34, P.P.C. Of Police Station Pak Colony, Karachi.
2. ' Brief facts of the case as narrated by the complainant in the F.I.R. Are that he is a Transporter by profession. On the day of incident at about 0930 hours he along with his brother Matiullah Khan and his Nephew Asar Khan were sitting outside the Street No,16 near Pir Bhaijan situated at Chunna Dhobi Ghat, Mianwali Colony, his brother Ahmed Khan son of Abdullah was also standing there at some distance. According to the complainant they have a long standing enmity with Aurangzeb son of Rajmir. All of sudden accused Aurangzeb son of Rajmir along with three other accused persons namely Himat Khan, Parvez Khan and Nasrullah Khan came there on two motorcycles and after their arrival Aurangzeb fired from his weapon and raised lalkara/instigation not to spare his brother Ahmed Khan son of Abdullah Khan and as such above three accused persons opened fire, which hit the complainant's brother Ahmed Khan, who sustained injuries on his chest, abdomen and back and he fell down. On complainant and others commotion, all the accused persons escaped away from the spot. Ahmed Khan succumbed to injuries at the spot and brought to the Civil Hospital.
3. ' It is, inter alia, contended by the learned counsel for the applicants that the applicants are innocent and have falsely been involved in the said crime due to enmity, which has already been admitted by the complainant in his 154, Cr.P.C. Statement recorded before the Police. According to the learned counsel, nothing has been recovered from the possession of the applicants. Learned counsel for the applicants further contended that there is a delay of more than four (4) hours in lodging of F.I.R. Without explanation. He further contended that the main accused Aurangzeb son of Rajmir has already been granted pre- arrest bail by the learned IVth Additional District and Sessions Judge, Karachi West, on the ground of plea of Alibi, which was later on confirmed while interim pre-arrest bail granted to the applicants was recalled and was dismissed. Learned counsel for the applicants further contended that the main accused Aurangzeb son of Rajmir, before the day of incident, was admitted in the Rural Health Center at Buxapur, Kashmore from 12-10-2010 till 17-10-2010 and the present applicants were remained in the said Hospital for care and treatment of the main accused Aurangzeb son of Rajmir who is their father/uncle. In support thereof the applicants filed affidavits of witnesses/staff of the Rural Health Center at Buxapur, Kashmore namely Haji Muhammad son of Ghulam Mustafa (Dispenser), Abdullah son of Shahnawaz (0.T Technician), Abdul Qadir son of Amanullah (Resident of Buxapur), Wali Muhammad Khan son of Jawaya Khan and Shah Muhammad son of Allah Jawaya, sworn before the learned 1st Civil Judge and Judicial Magistrate, Kashmore, those affidavits were sent by the learned IVth Additional District and Sessions Judge, Karachi West to the learned District and Sessions Judge, Kashmore for verification of genuineness of the said affidavits. Learned counsel further contended that admittedly there is an old enmity between the complainant party and the accused persons and many counter F.I.Rs, have been lodged against each of them and cases are pending as well. In support of his case, learned counsel has relied upon the case of Ajmal Khan v. Liaquat Hayat (PLD 1998 SC 97), Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma (1975 SCM R 219), Aminullah v.
4. The State (PLD 1982 SC 429), Muhammad Shahid v. The State (1998 SCM R 217)., Sadruddin v. The State 2007 YLR 1667, Tabassum Ali v. The State 2009 YLR 822 and Syed Amanullah Shah v. The State (PLD 1996 SC 241).
5. ' On the other hand, Mr. Suleman Badshah, learned counsel appearing on behalf of the complainant contended that there is a daylight incident and the names of all the applicants are mentioned in the F.I.R. With specific role and empty bullets were also recovered at the spot as well as from the body of the deceased so that their case is not one of further enquiry as the applicants are nominated in the F.I.R. With specific role and have been charged in a murder case. According to the learned counsel, affidavits of the eye-witnesses filed to support the plea of Alibi cannot be considered at bail stage. He further contended that admittedly there is old enmity between the complainant party and the accused persons and many counter F.I.Rs, have been lodged that is why the applicants and the complainant party know each of them by name. In support of his case, learned counsel has relied upon the case of Abdul Hayee v. The State (1996 SCM R 555), Naseer Ahmed v. The State (PLD 1997 SC 347), Syed Lakhat-e-Hasnain v. The State (2010 SCM R 855) Omer Khan v. Khalid Mehmood (2003 PCr.LJ 1110) and Mst. Zulekha Bibi v. Abdul Samad (1995 PCr.LJ 1730).
6. ' Mr. Muhammad Iqbal Awan, learned A.P.-G. Has strongly opposed the bail plea of the applicants while supporting the arguments of the learned counsel for the complainant.
7. ' I have heard the learned counsel for the parties and .Perused the entire material available on record as well as the case-law cited by them in support of their case.
8. ' Admittedly, there was a daylight incident and took place in a thickly populated area but no private witnesses have been associated by the prosecution and the prosecution witnesses named in the challan are close to of the complainant Party. The said incident was occurred due to old enmity between the parties and there are many F.I.Rs, lodged against each of them and there is a delay of more than four (4) hours in lodging of F.I.R. Without explanation.
9. ' Prima facie, it appears from the record that the main accused namely Aurangzeb son of Rajmir, who have already been granted bail by the learned trial Court, has taken a plea of Alibi.- as he was admitted in the Rural Health Center at Buxapur, Kashmore from 12-10-2010 till 17-10-2010 and the present applicants were remained in the said Hospital for his care and treatment, in support thereof the applicants filed affidavits of witnesses/staff of the Rural Health Center at Buxapur, Kashmore, which were sent by the learned IVth Additional District and Sessions Judge, Karachi West to the learned District and Sessions Judge, Kashmore for verification of genuineness of the said affidavits. Though the said affidavits cannot be given deeper appreciation at bail stage, but prima facie there is sufficient material to make the case of the applicants of further enquiry to grant bail to the applicants.
10. ' A bare reading of the statements recorded under section 161 Cr.P.C. Of the eye-witnesses namely Afzaal Ahmed, Ghulam Farid, M. Azmat Hayat and Muhammad Khalid, it transpired that, according to them, there were only two young boys in pent shirts with muffled faces riding on Motorcycles with fire-armed having wheaty colour, which creates doubt as according to the complainant there were four persons, who fired upon the brother of the complainant and nowhere it has been stated by the complainant that the Motorcyclists were muffled faces.
11. ' It may be observed .That whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial.
12. ' Though no doubt there is no binding upon the Court regarding opinion of the police in respect of the plea of Alibi taken by the accused persons, as during investigation the-police came to a definite conclusion that accused had not participated in the occurrence, but it can be considered for grant of bail, if the same is based on sound reasoning.
13. ' It may further be observed that role assigned to the main accused namely Aurangzeb son of Rajmir (already on bail) in the F.I.R. Is of instigation, the learned trial Court has granted bail to him on the ground of his plea of Alibi after recording the statements of other persons admitted enmity between the parties, learned counsel for the applicants contention that role attributed to the main accused in F.I.R. Coupled with the admitted enmity, calls for further enquiry under section 497(2), Cr.P.C. Keeping in view the statements under section 161, Cr.P.C. Which are in favour of the applicants, possibility of acquittal of the applicants or conviction of lesser punishment cannot be ruled out and no reasonable grounds for believing that the applicants have committed a non- bailable offence falling under the prohibitory clause of section 497(1), Cr.P.C. And this is a fit case for further enquiry into the guilt of the applicants. No doubt enmity between the parties is a double edge sword, which cut both sides and the effected party try to involve as many people of the rival party in the crime as they can, specially when they have a grudge with each other and in the said incident effected party lost their family members.
14. ' After hearing of arguments of the learned counsel for the parties at length, I am of the opinion that the applicants counsel has made a case of further enquiry under section 497(2), Cr.P.C. And the applicants are entitled to concession of bail. Consequently; the applicants Himat Khan, Parvez Khan and Nasrullah Khan are granted bail subject to their furnishing solvent surety in the sum of Rs,5,00,000 (Rupees Five Lac only) each and PR Bond in the like amount to the satisfaction of the learned trial Court.
15. ' Criminal Bail Application No,1501 of 2011 stands disposed of in the above terms.
16. ' The above assessm ents are tentative in nature. The learned trial court shall not be influenced with the above observations and the same shall not effect upon the merits and demerits of the main case of the applicants. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.