' SYED HASAN AZHAR RIZVI, J.-This bail application has been filed on behalf of applicant Ibrahim, who is involved in F.I.R. No.418 of 2011 under sections 302, 324 and 34, P.P.C. Of Police Station Sir Syed, Karachi.
2. Facts leading to the F.I.R. Lodged on 12-8-2011 by the complainant are that he is running his whole sale business of soap. On 12-8-2011 at about 0030 hours his employee namely Ibrahim has informed him through telephone that your son-in-law Mustafa and employee Kashif have sustained bullet injury upon which he enquired from him as to how they sustained bullet injury upon which he replied that you are aware about the situation of Karachi and there was aerial firing due to which 'they both have sustained injuries and Police took them to Abbasi Shaheed Hospital.
The complainant along with his relative reached at Abbasi Shaheed Hospital and saw dead body of his sin-in-law and his employee Kashif was found in injured condition in Emergency Ward. The police reached there and after completing formalities hand over the dead body of his son-in-law to him. He stated that his son-in-law and Ibrahim were deputed ,on supply of articles and recovery and his son-in-law was looking after affairs of the same. He stated there was his outstanding amount of Rs.10/11 lac against Ibrahim. His son-in-law, his employees Ibrahim and Kashif left for recovery of articles on a Suzuki No.KC 9721. There were some outstanding amount of Ibrahim against Khawar which was disclosed to him by his son-in-law but he asked him that this is the matter between Ibrahim and Khawar. Khawar has called Ibrahim at Bi-Amma Park for making payment of amount and when his son-in-law and his employees Ibrahim and Kashif reached at Bi-Amma Park in the Suzuki at Service Road opposite Rajput Milk Shop Sector 11-C/1, North Karachi at about 1230 hours of night where Ibrhaim and Khawar were talking with each other and there were 2/3 other persons with Khawar who at the instance of Ibrahim and Khawar made firing upon his son-in-law and Kashim who were standing outside the Suzuki. He claimed that Ibrahim and Khawar and their companions have committed the murder of his son-in-law and caused injuries to his employee Kashif, hence this F.I.R.
3. I have heard the arguments of learned counsel for the applicant, learned counsel for the complainant, learned A.P.G. For State and perused the material available on record.
4. Mr. Nadeem Ahmed, learned counsel for the applicant argued that no role has been assigned to the applicant/ accused in the present F.I.R. And no convincing evidence available with the prosecution to connect the applicant with the alleged offence. He further argued that the applicant is poor person and has falsely been involved by the complainant with ulterior motive. He also argued that the eye-witnesses of the incident in their statements recorded under section 161, Cr.P.C.
Have not stated a single word against the applicant. He contended that the eye-witnesses namely Hasan Ali and Anil Ahmed Siddiqui both stated that Faizan was busy in texting in his mobile but the I.O. Of this case has not taken the mobile of Khawar in order to see whether Khawar or someone else was texting to Faint and what was the stuff in the texting therefore the matter requires further inquiry. He further contended that nothing has been recovered from the possession of the applicant and not a single word has been shown in the police file to implicate the present applicant. He urged that challan of this case has already been submitted and there is no chance of tampering of prosecution evidence and keeping the applicant behind the bars for longer period of time will serve no purpose as the prosecution has cited 12 witnesses in challan and it will take inordinate time to complete the trial. He, therefore, prayed that the applicant is entitled for concession of bail. Learned counsel in support of his submissions has placed reliance upon the cases of MUHAMMAD AKRAM y. THE STATE (1995 PCr.LJ 1037), NISAR AHMED AND ANOTHER v. THE STATE (2005 PCr.LJ 652), MUHAMMAD AMIN alias IRFAN AND ANOTHER v. THE STATE (2004 SCM R 1560), AKHTAR HUSSAIN AND ANOTHER v. THE STATE (2005 M LD 1904), MUHAMMAD KHALID v. THE STATE (2007 YLR 1281), SYED ALI SHAH ALIAS SHAHJI v. THE STATE (1993 PCr.LJ 1118), HAYATULLAH v. LAL BADSHAH AND ANOTHER (PLD 2009 Peshawar 28) and ALI HASAN v. THE STATE (1997 PCr.LJ 767).
5. Raja Ali Asghar, learned counsel for the complainant contended that it is a case of double murder. He contended that the applicant is an abettor and would be punishable in consequence of the abetment. He contended that conspiracy hatched by applicant and Khawar to murder the deceased Mustafa. He also contended that the applicant had taken the deceased at the place of incident. He further urged that the applicant was very much present at the spot and was apprehended by the police from there. He urged that motive behind the murder was money, as there was no enmity between the applicant and deceased. He further urged that the applicant's name was in the F.I.R. With specific role, therefore there is no case of further inquiry and the applicant does not deserve the concession of bail. Learned counsel in support of his submissions has placed reliance on the cases of SARDAR MUNIR AHMED DOGAR v. THE STATE (PLD 2004 SC 822), RAMZAN AND ANOTHER v. THE STATE (2011 M LD 1436), KHAMISO AND ANOTHER v. THE STATE (1999 PCr.LJ 09), HAJI GULU KHAN v. GUL DARAZ KHAN AND ANOTHER (1995 SCM R 1765) and RAMAZAN AND ANOTHER v. THE STATE (2011 M LD 1436).
6. Mr. Abdullah Rajput, learned A.P.G. For State has vehemently opposed the grant of bail to the applicant on the ground that the applicant is the person who was supervising the scene and arrested at the place of incident. He has submitted that challan has been submitted before the trial Court. He suggested that bail application may be disposed of with "directions to learned trial Court to record the evidence of eye-witnesses within three months and if there is nothing comes on record against the present applicant, he may repeat his bail. Learned A.P.G. Sindh has placed reliance on a recent case of MULO AHMED v. THE STATE (2011 M LD 1171), whereid the learned Single Judge of this Court has observed that though the allegation against accused was making aerial firing along with co-accused and had not caused any firearm injury to the deceased, but his undeniable presence at the place of incident, duly armed with weapon, had shown his motive of preplanned concert in furtherance of common object with principal accused.
7. I have considered the submissions advanced by the learned counsel for the parties and perused the police file. Admittedly, the name of the applicant is mentioned in the F.I.R. Though no specific role has been assigned to him, but no plausible explanation was rendered to justify the presence of the accused at the place of occurrence, which had led to a tentative view that the accused shared common intention to commit the murder of deceased. -Reasonable grounds were available to believe that applicant had shared the common intention with co-accused in the commission of murder unless evidence of eye-witnesses is recorded. Further, nothing was available on record to show that complainant party had any motive or reason to falsely implicate accused in the case.
Moreover, the case was at preliminary stage and evidence of none of the prosecution witnesses has been recorded. Now the police has submitted challan, as informed by learned A.P.-G. Sindh and learned counsel for the complainant, therefore the suggestion made by learned A.P.-G. Is quite reasonable.
8. In the circumstances, I ant of the considered view that the case of the applicant does not fall within the purview of further enquiry as he has formed an unlawful assembly in furtherance of their common intention where two young innocent persons have lost their lives and as such the applicant is vicariously liable for the same.
9. Foregoing are the reasons for short order dated 7-12-2011 whereby bail plea of the applicant was rejected and trial Court was directed to examine the complainant and eye-witnesses namely Syed Hasan Ali, Aneel Ahmed Siddiqui and Abdul Rehman within a period of three (03) months from the date of receipt of this order and submit compliance report on fortnight basis to learned MIT-II.