1. ' By this order I intend to dispose of Criminal Bail Application No, 1586 of 2001 in a case bearing F.I.R.
2. No, 40/2001 under sections 377/302/34, P.P.C. Registered with Police Station Kalakot (South), Karachi. The bail plea of the, applicant was rejected by the learned IIIrd Additional Sessions Judge, Karachi South, vide order dated 20-9-2001.
3. ' The prosecution story as enunciated in the F.I.R. Is that on 14-2-2001 one Hashim Khan appeared at Police Station Kalakot and lodged F.I.R. Alleging inter alia as under: - ' Today when A.S.I. Shoukat Awan was present at P.S. One Hashim son of Faqir Muhammad appeared at P.S. Along with written statement which was incorporated in a book under section 154, Cr.P.C. Which is reproduced here under:- ' At 7-45 p.m. On the 14th of February, 2001 complainant Hashim Khan son of Faqir Muhammad, aged 57 years, Awan by caste temporarily residing at Al-Hamd Mashroobat, Allama Iqbal Colony, Mewashah, Bakra Piri, Karachi, permanently residence of post office Gur Gushty P.S. District Hazara and produced a report made under section 154, Cr.P.C. Stating therein that I used to reside in my village. My son Muhammad Irshad, aged 30-31 years also used to reside on the above address in Karachi. He worked in Saria Mills in Shehrshah. When I was in my village, I received information that my son Muhammad Irshad is missing since last Eid-ul-Fitr. On receipt of such information I reached at Karachi. On 11-2-2001 I alongwith my relations went in search of my son. On 12-2-2001 when I reached at Sard. Khana/Mortuary at Suhrab Goth where I saw the picture of my son. The persons concerned Edhi House disclosed that the dead-body of my son was found from the jurisdiction of Kharadar ,Police Station. I alongwith my relatives reached at Kharader Police Station where I came to know that the dead body of my son was found in a box lying on the footpath of Machi Miani Market, G. Allama Iqbal Road, Kharadar, Karachi, in the jurisdiction of Kharadar Police Station on 29- 12-2000. The case of his murder is registered at Police Station Kharadar. Thereafter, I inquired the facts myself and I was informed by one boy Muhammad Sabir son of Sher Afzal Khan, who worked sin. Saria Mills with my son Muhammad Irshad that he had met Irshad at Dera two days before Eid and went back where he came" to Dera on Chand Rat again and stayed with Irshad. He spent Eid day with Irshad. He again stayed in the night at Deta. In the night, the friends of Irshad namely Sarwar, Abrar and Rustam came there. They committed sodomy with him. Thereafter, there was dispute on money amongst the friends of Irshad namely Sarwar, Abrar and Rustom. All the ''three strangulated him by his neck and killed him. I complained against Sarwar Khan son of Muhammad Rafiq, Abrar son of Muhammad Aslam, Rustam son' of not known, who killed my son Irshad after strangulating him from his neck during night of 28/29-12-2000 inside the Dera, situated at Gali No, 19, Allama Iqbal Colony Mewashah Road, Kalakot, Karachi on the money dispute with the common intention and they also committed sodomy with Muhammad Sabir son of Sher Afzal Khan. I had come for report. 'Action be taken,' statement heard and found ccorrect. L.T. I.
4. ' It would' be pertinent to mention that present F.I.R. Was registered at Police. Station Kharadar on 29-12-2000 which was reduced into writing in a complaint book on the complaint of Muhammad Younas for an offence under section 302, P.P.C. The said F.I.R. Was placed on dormant file and was ultimately cancelled.
5. ' Following the investigation applicant Sarwar Khan was sent up to stand trial in the Court of IIIrd Additional Sessions Judge, Karachi, South. It has been contended by the learned counsel for the applicant that the only evidence against the applicant is the evidence of P.W. Shah Nawaz under section 161, Cr. P.C. As per statement on 12-2-2000 the said witness was taken to Police Station on 14-2-2001. During the course of investigation he made a statement that as he along with four persons namely Ibrar, Rustam and Arshad was taken to Dehra Gali No, 19, Allama Iqbal Colony, Mewa Shah Road, Bakra Mandi for commission of sodomy on the person of deceased which resulted in fight between all the four persons, on distribution of money. As per statement of Rustam 'Sarwar got hold of Muhammad Arshad and Ibrar put chain in the neck of the deceased and thereafter caused strangulation which resulted in the death of the deceased. However the above statement was reduced into writing on 5-2-2001.
6. ' On 17-2-2002 164, Cr.P.C. Statement of the said Sabir Nawaz was recorded in presence of Judicial Magistrate No, IX, Karachi South , in which the witness clearly stated that applicant Sarwar along with three others namely Arshad, Rustam and Abrar committed sexual intercourse on the person of deceased, however, in cross-examination of the accused Sarwar the witness admitted in clear terms that as far as Sarwar was concerned he had not committed any sexual intercourse with him.
7. It seems that this witness has given obliging statement in favour of the applicant. The another piece of evidence recorded is the petitioner's confession. The perusal of the confessional statement shows, that same is exculpatory. Coming to the medical evidence it has been propounded b9 the learned counsel for the applicant that the cause of death shown in the post-mortem is strangulation. As far as second aspect which is related to an act of sodomy has not been mentioned in the post- mortem report. Learned counsel while summing up his arguments contended that the material available on record shows that the only role attributed to the present applicant is to the extent of facilitating the crime and not beyond that which calls for further enquiry as contemplated under section 497(2), Cr. P.C.
8. ' Learned counsel for the applicant in support of his arguments referred to the case of Shahid v. The State 1994 SCM R 393, Qasim v. The State 2001 YLR 214 and Mehmood Akhtar and another v. Haji Nazir Ahmed and four others 1995 SCM R 310.
9. ' Mr. Mazhar Ali B. Chohan, learned counsel appearing on behalf of the State reluctantly opposed the grant of bail to applicant, however he has given no reasons for his opposition.
10. I have given my anxious consideration to the arguments of the respective parties and also perused the record, I have also come across the police file and feel that learned counsel appearing on behalf of the applicant Sarwar Khan has been able to make out a case of bail, which is granted subject to furnishing surety in the sum of Rs, 2,00,000/- and PR bonds in the like amount to the satisfaction of the Trial Court.