1. ' MUHAMMAD TASNIM, J.---The present applicant is booked in Crime No,152 of 2011 under section 302/34, P.P.C. Police Station Kharadar, Karachi. In the first place the applicant applied for bail before the learned trial Court through Bail Application No,453 of 2011 which was dismissed by the learned IIIrd Additional Sessions Judge Karachi (South) vide his order dated 5-5-2011. Feeling aggrieved against the aforesaid order, the present application for pre-arrest bail has been made. The case of the prosecution as set out in the F.I.R. Is that complainant being a businessman having his business place at Block-7, Clifton, Karachi. It is further stated that cousin of the applicant namely Gul Nawab Khan was running a Tea Cabin down the staircase of the building known as "Bulbul Nazar Dastan". It is stated in the F.I.R. That while the complainant was at home, he received a message on his cell telephone that his cousin Gul Nawab Khan had received bullet injury at his cabin and had been shifted to Civil Hospital. The complainant along with other relatives reached at Civil Hospital where he found the dead body of the deceased. On inquiry the complainant found that on 1-4-2011 at about 0530 hours his cousin was sitting at his Tea Cabin when two unknown persons came in a car one was having beard while the other was slim The slim person was remained seated in the car while the person having beard came out from the car and went to the cabin and fired upon the deceased with .30 bore pistol. The deceased received bullet injury at below the neck on right side, the other bullet hit him on the right shoulder while the other 3 bullets hit him on the legs. The injured fell down on the ground and the accused persons ran away. The locality people brought the injured to the Civil Hospital then the matter was reported to the Police.
2. ' Learned counsel for the applicant in support of the bail application has submitted that it is an unseen incident and none of the prosecution witnesses have seen the occurrence. Learned counsel for the applicant has submitted that as many as 6 prosecution witnesses including the complainant have given their statement under section 161, Cr.P.C. And out of six three persons the complainant Muhammad Khan, P.W. Sher Zameen and P.W. Himmat Shah have already filed their affidavits stating therein that neither they were present at the seen nor they have seen the applicant committing the above offence. Learned counsel has also read the statement under section 161, Cr.P.C. Of P.W. Zeshan, P.W. Umer Khan and P.W. Sher Muhammad but all the P. Ws have stated that they were not present at the scene and they reached the dead body after hearing the firing and saw the deceased lying on the floor then he was taken to the hospital. Learned counsel has submitted the following case law in support of his contention:--
(1) ALLAH BAKHSH V. NAZAR HUASSAIN SHAH AND ANOTHER (1979 SCM R 137)
(2) MUHAMMAD NAWAZ V. THE STATE (1991 SCMR 11).
(3) NOOR MUHAMMAD V. THE STATE (2008 SCM R 1556)
(4) TAHIR ABBAS V. THE STATE (2003 SCM R 426).
(5) MUHAMMAD ISMAIL V. MUHAMMAD RAFIQUE AND ANOTHER (PLD 1989 SC 585).
(6) MITHO PITAFI V. THE STATE, (2009 SCM R 299).
(7) SYED ZAHID AL/ V. THE STATE (1993 PCr.LJ 1489).
(8) MUHAMMAD ASHRAF V. THE STATE (2000 PCr.LJ 2080).
3. ' Conversely learned A.P.-G. Has vehemently opposed the grant of bail by contending that there is ample material available with the prosecution to connect the present applicant with the commission of offence. Learned A.P.G. Further argued that at the bail stage the affidavits filed by some of the prosecution witnesses may not be taken into consideration as it will amount to deeper appreciation of the record learned A.P.-G. Further argued that value of the affidavits filed by the complainant and other witnesses are to be adjudged by the learned Trial Court who is seized of the matter. In support of his contention learned A.P.-G. Has placed reliance on the case of NASEER AHMED V. THE STATE (1997 S.C. 347).
4. ' I have heard the learned counsels for the parties and have perused the record. I am mindful of the fact that deeper appreciation of the record cannot be gone into at the bail stage but only tentative assessm ent is to be made just to find out as to whether the applicant accused is connected with the commission of offence or not. If record of this case is examined, it will be noticed that admittedly the incident is unseen and none of the prosecution witnesses has connected the present applicant with the commission of offence. So much so three P. Ws. Including the complainant have already filed their affidavits stating therein that present applicant has no concern whatsoever with the present crime and have stated their no objection for grant of . Bail to the present applicant.
5. ' In the case of " Allah Bakhsh supra the Honourable Supreme Court of Pakistan while dealing with the affidavits filed by the prosecution witnesses exonerating him from the charge has observed as under:-- "The two affidavits filed by the alleged eye-witnesses exculpating the respondent herein from the commission of the crime were there on the record of the case forming, the necessary material which had to be considered by the learned Judge in reaching the conclusion whether the respondent could be said to have been connected with the offence. This is indeed what the learned Judge in the High Court has done to which no exception can be taken. We therefore, respectfully agreed with his conclusion that this was a case for further inquiry under section 497(2), Cr.P.C. And consequently it was not a case in which bail could be refused to the respondent".
6. ' In the case, of Muhammad Nawaz supra, the honourable Supreme Court of Pakistan while dealing with the above issue has observed as under:- "Me P. Ws. Have been questioned by us and they supported the averments made in their affidavits to the effect that the present petitioner Muhammad Nawaz alias Naga is not implicated in the occurrence.
7. ' Mr. A.S. Hashmi, learned counsel for the State was unable to oppose the prayer for bail, in view of the above statements".
8. ' In the case of S. Zahid Ali, a learned Single Judge of this court (as he then was while dealing with the above issue has observed as under:- "Although, 1 agree with the learned counsel for the applicant that when the main witnesses in the case come and swear affidavits not supporting their earlier version recorded by the police under section 161, Cr.P.C., the accused in such case should be released on bail because there would be no likelihood of the accused being convicted in the case but some proof must first be produced before the Court in regard to the authenticity of such affidavits".
9. Tentative assessm ent of the record further shows that presently there is no material available on record which connects the present applicant with the commission of offence. In the circumstances vide order dated 13-5-2011 without touching the merits of the case, the present applicant was admitted to pre-arrest bail on his furnishing solvent surety in the sum of Rs,100,000 (Rupees one lac only) with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. From perusal of record it further appears that surety has beep furnished and the applicant present in court is on bail In the circumstances order dated 13-5-2011 admitting the present applicant to bail is hereby confirmed on the same terms.
10. ' The bail application is disposed of in the above terms.
11. Pre-arrest .