1. Granted but subject to all just exceptions.
1. ' The facts leading to present application for bail are that applicant/ accused Zahid Khan is facing trial in Sessions Case No,1378 of 1997 before learned VIth Additional Sessions Judge Karachi South arising out of F.I.R. No,252 of 1997 dated 26-11-1997 of Police Station Kalri Karachi South under section 302, P.P.C. The contents of F.I.R. Lodged by complainant Ghulam Ali are reproduced blow: ' Today, one written statement recorded under section 154, Cr.P.C. By S.-I. Beharam Khan of complainant mentioned in column No,2 has been brought by me A.S.-I Muhammad Anwar. The copy of the same is written word by word as under: ' Dated 26-11-1997 at 15-10 hours; statement recorded under section 154 Cr.P.C. Of complainant Ghulam Ali son of Hashim Ali resident of House No, (sic) situated in K.D.A. Flats c/o Manzoor Hotel, near Awami Kantta, Mauripur Road, Karachi in enquiry;" I used to reside on the above given address alongwith my family and brother Azizur Rehman. I used to ply Rickshaw. Today, I went on Rickshaw as usual and came back for taking lunch at home at about 1-30 p.m., when my family intimated me that my relative Zaheer had informed that Habibur Rehman son of Malik Aman had been murdered with bullet firing by Zahid, who is a police constable in the house of Riaz Hussain Shah which is situated at Farooqui Masjid Street, Abdul Rasheed Road, Daryabad, Karachi. So I rushed immediately to the house of Riaz Hussain Shah, where Riaz Hussain Shah and his two sons (1)
2. Safeer Shah (2) Kazim Shah met me. I enquired from them and they disclosed that they all three were present at their house and Habibur Rehman son of Malik Aman arrived in their house early in the morning and they were gossiping. At about 11-00. a.m. Zahid son of Muhammad Yousuf, who is a Police constable came at their house. Some altercation took place between him and Habibur Rehman on account of the dispute over borrowing and lending and Zahid took out pistol at once and fired over Habibur Rehman saying that he would not spare him alive today. The shot hit on the near side of the head of Habibur Rehman and passed through his forehead. Habibur Rehman fell down and Zahid escaped away with pistol from his house. Thereafter, he informed the relatives of Habibur Rehman regarding this incident and they informed the police, who removed the dead- body to Civil Hospital. So I reached at Civil Hospital and got recorded my statement after identifying the dead body of my nephew Habibur Rehman in mortuary. My complaint is against accused Zahid son of Yousuf for committing murder of my nephew Habibur Rehman by firing with pistol. Statement read over and accepted correct."
3. ' Applicant/accused applied for bail before the trial Court but the same was refused by impugned order dated 26-3-1998.
4. ' It is contended by the learned counsel for the applicant/accused that the case is outcome of enmity; that the F.I.R. Is delayed by 5-45 hours whereas police station is situated at the distance of some paces that the incident was initially reported by P.W. Kaloo, a near relative of the deceased Habibur Rehman on 26-11.1997, at 2 p.m. Vide entry No,33 at Police Station Kalri Karachi according to which he informed the police that some unidentified person had murdered the deceased and his dead body was lying in street, No,1 of Doryabad, thus there are two versions of the incident. He has further contended that as per F.I.R., incident occurred in presence of P.W. Riaz Hussain Shah, P.W.
5. Syed Kazim Hussain Shah and P.W. Syed Safeer Shah and all the three eye-witnesses named herein, above have completely exonerated the applicant/accused and they have not supported the prosecution case in their statements recorded by the Trial Court during the trial; that the remaining prosecution witnesses are formal and that except ocular evidence of 3 P.Ws. Stated above there is no other evidence against the applicant/accused. It is, therefore, urged that the applicant/accused is entitled to bail.
6. ' Mr. Ashique Hussain Mehar, learned counsel for the Statehas conceded to the contentions of the learned counsel for the applicant/accused. He has submitted that none of the three prosecution witnesses named in the F.I.R., have supported the prosecution case and there is no other evidence against him.
7. ' I have heard the learned counsel for the applicant/accused and learned State counsel as well as perused the material and impugned order.
8. According to F.I.R. The alleged incident took place in the house of P.W. Riaz Hussain Shah in his presence and in presence of P.Ws. Syed Kazim Hussain Shah and Syed Safeer Shah. It is an admitted position that none of these three eye-witnesses have supported the prosecution version.
9. There is no other incriminating evidence against the applicant/accused. The depositions of these prosecution witnesses filed in support of bail plea reveal that all the three P.Ws. Have not supported the prosecution case and they have given a complete clean slate to the applicant/accused.
10. Depositions of these P.Ws. Further reveal that eye-witness Riaz Shah has not implicated the applicant/accused in the commission of offence and he was declared hostile by the trial Court whereas eye-witnesses Azizur Rehman and Syed Kazim Hussain too have not supported the prosecution version and they have not implicated the applicant/accused. Both these witnesses have not even been declared hostile. The presumption under law would be that whatever the witnesses have deposed is correct. In this regard I am fortified by the decisions in case of Muhammad Nawaz alias Najia v. The State reported in 1991 SCM R 111 Shabir Ahmed v. The State reported in 1980 SCM R 920 and Allah Bukhsh v. Nazar Hussain Shah and another reported in 1979 SCM R 139. In my view under the circumstances stated hereinabove applicant/ accused is entitled to bail and his case necessitates further enquiry as contemplated under section 497(2), Cr.P.C.
11. ' By the short order dated 6-4-1998 I had granted bail to the applicant/accused and above are the reasons for the said short order.