1. ' The applicant is facing trial under section 302 read with section 34, P.P.C. Before the learned Vth Additional Sessions Judge (South) Karachi.
2. ' After the case was challenged, an application for bail was moved but the same was rejected vide order, dated 21-3-1990.
3. ' The brief facts giving rise to the present application are that on 16-2-1990 one Muhammad Yousuf lodged a report that he and his brother Siraj were coming to their house at about 4-40 p.m. And when they reached in front of Bungalow No,150-A, they found Nadeem Baloch sitting on footpath.
4. He told his brother Siraj not to visit his Mohallah, on which there was exchange of hot words between them. Nadeem fired on them from T.T. Pistol. He and his brother started running, when applicant Dur Muhammad started firing pistol shot at them from near the wall of a water tank. His brother Siraj was hit and he fell down on the ground of bullet sustained from the shot fired by Dur Muhammad. His father Islamuddin reached at the place of Wardat on hearing gunshot report. His brother Saleem also reached there. The incident was witnessed by Khalid and Abid and other members. His father took Siraj to Abbasi Shaheed Hospital, while he went to the police station and lodged his report.
5. ' However, the investigation was transferred to S.D.I.P. Baghdadi, who ' However, the investigation was transferred to S.D.I.P. Baghdadi, who verified earlier investigation and not being satisfied with the witnesses examined in the first investigation, he examined six neighbors namely, All Akbar, Hanif, Abdul Qadir, Abdul Razzak, Abdul Hakeem and Faqir Muhammad who exonerated the present applicant. He also examined 7 witnesses more, and therefore, opined that the present applicant Dur Muhammad was innocent. However, the prosecution branch ordered that the case should be sent up before the Court and it will be for the Court to decide.
6. ' It has been contended by MrA.Q. Halepota, learned counsel appearing for the applicant, that the deceased and his father were notorious bad characters and were history-sheeters of bounded 'A'.
7. He has further contended that out of the 8 witnesses examined in the first investigation some were near relations of the deceased and the remaining namely, Waqar Ahmad was cleaner of a Suzuki, Anwar was a Driver, Abid was a washer man and they were men of the complainant. He has further contended that 13 independent neighbours examined in the 3rd investigation by S.D.I.P. Baghdadi have exonerated the applicant, and therefore, he was entitled to bail. He has further contended that out of 2 eyewitnesses named in the F.I.R. Namely Abid was examined but Khalid has not been examined. He has further contended that although the applicant was arrested on the same day of the incident but there was no recovery from him. That the applicant had no relationship or connection with the co-accused Nadeem and there was no motive for the applicant to attack deceased. In support of his contentions the learned counsel has relied upon 1974 P Cr. L J 450 and 1984 SCM R 429 and 529.
8. ' Mr. Shoukat H. Zubedi, learned AA.-G. Appearing for the State has contended that the counter- report lodged by Dur Muhammad being Crime No,54/90 shows that deceased Siraj was found firing at co-accused Nadeem. That co-accused Nadeem has made extra-judicial confession before six persons admitting his guilt. That there was no recovery from the applicant, and since no motive is alleged against him, he had no objection if the applicant was allowed bail.
9. I have considered the contentions of the learned counsel. No motive is alleged against applicant Dur Muhammad in the F.I.R. The objection if any to the visit of the deceased was raised by co- accused Nadeem. P.W. Islamuddin is father of deceased, while complainant and Saleem are his brothers. Out of remaining 2 witnesses Khalid and Abid named in the F.I.R. P.W. Khalid has not been examined. P.W. Waqar Ahmed is a cleaner of Suzuki, Anwar is driver, while Abid is washer man.
10. When the investigation was transferred to the S.D.I.P. Baghdadi, he called the witnesses for verification and he was not satisfied with their statements, and therefore, he examined 13 more witnesses residing or having shops in the neighbourhood and all of them have exonerated. The applicant. Six of the witnesses namely, Ali Akbar, Hanif, Abdul Qadir, Abdul Razzak, Abdul Hakeem and Faqir Muhammad specifically stated that co-accused Nadeem had deceased. That the fight had taken all of a sudden, while the parties were playing football, and while they were playing, the ball went in the Baloch house and when Imran went to bring the ball Nadecm gave him a fist blow on his nose on which there was a fight. There is no incriminating recovery from the applicant and the B evidence of the above witnesses clearly shows that applicant Dur Muhammad was with them and he did not participate in the fight. The report of the S.D.I.P. Dated 28-2-1990 clearly shows that the applicant is innocent. However, when the matter was placed before D.S.P. Legal, he opined that looking to the different versions it will be appropriate to challan the accused before the Court. From the above C discussion, it is clear that the report given by S.D.I.P. Is based on proper materials and is supported by as many as 13 witnesses. In the case of Muhammad Hayat v. The State 1974 P Cr. L J450, it was observed that:- "Where an Investigating Officer found the accused innocent but refrained from taking final responsibility qua guilt or innocence of accused and challenged him. Since the opinion of Investigating Officer regarding innocence of accused was based on moral conviction on proper investigation conducted by him, accused could take benefit of such opinion and bail was granted."
11. ' In the case of Muhammad Afzal v. Nazir Ahmad and others 1984 SCMR 429, it was observed that:-- "Relevancy of opinion of Investigating Agency regarding complicity of an accused person depends on soundness of material upon which such opinion is based. The opinion of Police Officer based on statements of respectable person, could be taken into consideration by the Court while granting bail and the petition for leave filed by the complainant for setting aside the order passed by the High Court granting bail to the accused was dismissed.
12. ' In the case of Amir Ali and others v. The State 1984 SCMR 529, the Honourable Supreme Court, while granting bail to the petitioners, their Lordships of the Supreme Court were pleased to observe that:-- "In this case the view expressed by the A.S.P. That the petitioners were not present at the spot, is based on sufficient material. As such we are of the view that in this case the benefit of doubt arising from the A.S.P.'s report must go to the petitioners even at the bail stage and the petitioners were allowed bail."
13. In view of the above factual as well as legal position, I am of the considered view that the case of the applicant requires further inquiry with regard to his participation in the crime and, therefore, I direct that he shall be released on bail on furnishing surety in the sum of Rs,1,00,000 (Rupees one lac only) and D P.R. Bond in the like amount to the satisfaction of the learned trial Judge.