1. ' SYED HASAN AZHAR RIZVI, J.---Applicant/accused has approached to this court after rejection of his Bail Application by the Ist Additional Sessions Judge, Malir, Karachi in Bail Application No,810 of 2011 on 14-10-2011.
2. ' The brief facts as narrated in the F.I.R. Are that on 9-9-2011 the complainant lodged the F.I.R.
3. Bearing No,590 of 2011 alleging that the complainant's brother Saeed Ahmed informed him that he and his cousin Naveed had given Rs,14,00,000 to Zubair the owner of Al-Madina Travel Agency Safoora Chowk for going to Saudia Arabia. Complainant's brother and cousin informed the complainant that they were going for taking meal with Zubair, who invited them at his Travel Agency. At about -0010 hours the complainant's brother informed on mobile phone that when they reached at Travel Agency Zubair, his companion Bilal and one unknown person directed them to sit in their car and took them to a hotel at Super Highway on the pretext of taking meal. When they reached at Abdullah Shah Ghazi Toth double road,' they ordered to step down from their car and with the intention to kill them started firing. On that information complainant, his neighbours Sanaullah, Muhammad Sharif and Umar Baloch reached there and found his brother in injured condition having bullet injuries on his stomach and right leg and his cousin Naveed son of Haji Muhammad received injuries on left side of his chest, who succumbed to death at the spot.
4. Complainant took them first to Memon Hospital where treatment was given to his brother and them took the dead body of his cousin to Jinnah Hospital where he informed the police about the incident and then went to lodge the report. Complainant's claim was against Zubair, and one unknown person for causing injuries to his brother and murder of his cousin.
5. ' Applicant filed bail application in the Court of Sessions Judge, Malir, Karachi, which was dismissed on 14-10-2011 by the Ist Additional District and Sessions Judge, Malir, Karachi.
6. ' Learned counsel for the applicant contends that the applicant/accused is innocent and has been implicated falsely in the present case. He submits that F.I.R. Was lodged against Zubair, Bilal and one unknown person, whose name was subsequently known as Fahim. He further submits that neither the name of the applicant has been mentioned in the F.I.R. Nor any role has been assigned to him in the F.I.R. He further submits that according to averments of the F.I.R. The complainant first took the injured and dead body from the place of incident and then reported the matter at Police Station where F.I.R. Was registered.. He further submits that the applicant/accused has .Been robed in the present case on the basis of 161, Cr.P.C. Statement of the complainant's brother Saeed Ahmed, who was lying in injured condition at the spot. He further urged that in the Mashiruama of place of incident the complainant is one of the mashirs and stated that the accused had received fire shots inside the car whereas in the statement under section 161, Cr.P.C. Injured/eye-witness Saeed Ahmed stated that Zubair and others directed them to step down from the car and then started firing. According to the learned counsel this material contradiction makes the case of the applicant of further inquiry and the applicant/accused is entitled for grant of bail.
7. ' Mr. Wazeer Hussain Khoso learned counsel for the complainant submits that according his instructions received from the complainant there is likelihood of compromise between the parties but the counsel for the applicant submits that the process of compromise shall take sufficient/long time therefore, he urged that the present bail application be heard and decided on its own merits.
8. ' Mr. Abdul Rehman Kolachi learned A.P.-G. Submits that the eyewitness Saeed Ahmed is real brother of the complainant, who was injured at the spot in his 161, Cr.P.C. Statement fully implicated the applicant. According to statement recorded under section 161, Cr.P.C. Saeed, Ahmed and his cousin Arbab Naveed desired to visit Saudi Arabia and after obtaining permission from their elders met with Zubair owner of Al-Madina Travel Agency, who demanded Rs,2,25,000 per person for sending them to Saudi Arabia. Three/four months prior to the incident father of the complainant and brother Saeed Ahmed paid Rs,4,50,000 and gave passports of the injured and his deceased cousin to Zubair. On 8-9-2011 in the morning Zubair informed on telephone that their tickets are ok for 9-9-2011 and when they went to Al-Madina Travel Agency at Safoora Chowk in the evening.
9. Zubair, Imran (present applicant) and some other persons came in black colour Toyota Corolla car. Zubair and Imran told to Saeed Ahmed and Naveed that said night was their last 'night in Pakistan and they were taking them for dinner at Super Highway and then would take them to Airport. Saeed Ahmed injured eye-witness and deceased Arbab Naveed occupied rear seat of the car when Imran the present applicant told to Zubair in urdu that "In dono ka kaam utar dain" then Imran chased black car in another car. At about 12-15 a.m. When they reached at Abdullah Shah Ghazi double road they stopped the car in an isolated area on the pretext that tyre of the car has been punctured. They directed both, the injured eye-witness and deceased Naveed to step down from the car and Zubair opened the diggy and brought two pistols and directly fired on Saeed Ahmed and deceased Naveed. Zubair also directed one Bilal to fire at Saeed Ahmed, which hit his stomach and right leg and they ran away in their car. Injured eye-witness stated that with the intention to usurp the amount paid by his father to Zubair, Bilal and Fahim Raza at the instigation of the present applicant Imran killed Arbab Naveed and with the intention to kill Saeed Ahmed made firing upto him and he received bullet injuries on his stomach and leg.
10. For deciding the Bail Application deeper appreciation is to be avoided only tentative assessment of the evidence is to be made and the contents of the F.I.R. And statement of witnesses under section 161, Cr.P.C. And incriminating articles recovered during the investigation are to be looked to form opinion about the prima facie nature of the offence. On perusal of the statements of the prosecution witnesses specially eye-witness Saeed Ahmed who was present at the spot and was injured, it is crystal clear that a role has been assigned to the present applicant for instigating the accused persons to kill the deceased Arbab Naveed and causing injuries to Saeed Ahmed. Case falls under prohibitory clause and the counsel for the applicant has failed to bring any material before this Court which entitles the applicant for grant of bail.
11. The contention of the learned A.P.-G. That the occurrence took place on 9-9-2011, the applicant has been fully implicated by the injured eye-witness Saeed Ahmed seem plausible therefore, in presence of evidence of the eye-witness and the material available on record against the applicant/accused the bail cannot be granted to him.
12. ' Above are the reasons of short order dated 29-11-201 whereby the instant Bail Application was dismissed.
13. ' The observations made are of tentative nature and the Trial Court shall not be influenced by any of such observations.