ORDER SHEET
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Date Order with signature of Judge
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Date of hearing : 09.02.2007
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Mr. Muhammad Jamil, advocate for Applicants.
Mr. Haider Shaikh, advocate for the State.
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Applicants Toufiq alias Babar Kala son of Muhammad Ashraf and Ch. Younus son of Abdul Aziz have moved this bail application in a case registered against them at Police Station Al-Falah, District Shah Faisal Town under Section 302/34 PPC.
It was reported by complainant Gul Wali Khan that on 28.04.2003 when he alongwith his uncle deceased Azam Khan, Azizullah Khan and other relative were returning after attending the Valima ceremony in a car and had reached at Malik Block Works, Al-Falah Society, at about 12.15 a.m. three persons duly armed riding on a motorcycle got their car stopped and soon thereafter they fire on complainant’s uncle Azam Khan with fire arm weapon and had escaped towards Al-Falah Society. Azam Khan died at the spot. According to complainant, he, Azizullah and Ch. Ausaf, who were with them in the same car can identify the culprits if produced before them.
It is argued by learned counsel for applicants that both these applicants have been falsely implicated in the matter. No satisfactory evidence has been brought on record by the prosecution to connect these applicants with the incident happened on 28.04.2003. Both these applications were arrested on 21.05.2003 and their custody is shown to had been taken from a mazar of Malir but in fact they were arrested from Lahore. In proof thereof he has placed clippings of newspapers Daily Ummat dated 21.05.2003 and Daily Qaumi Akhbar dated 20.05.2003, wherein their arrest has been shown from Lahore. Nothing incriminating used in the commission of offence was also recovered from the possession of applicants. However, by placing report of Ballistic Expert prosecution had tried to involve the applicants as culprits.
From the perusal of Ballistic Expert report, it appears that three crime weapons were sent to Criminalistic Division, Sindh, Karachi on 06.06.2003, wherein three pistols without numbers were examined alongwith certain empties shown to had been fired from all the three pistols. This report of Criminalistic Division is in conflict to the case of prosecution, wherein though according to prosecution witnesses the total figure of culprits was three, but in practical only one had fired on him while the rest two were just standing and no fire was shot by them. In view of these statements, it remains unexplainable that how the rest two pistols were connected by ballistic expert with the empties recovered form the place of incident. In view of giving facts the doubt appears that the pistils recovered and empties sent to Ballistic Expert were not the same, which was recovered by police from the custody of accused Muhammad Ali. Otherwise, report would not had been so as it is.
Next is, that as per prosecution accused fired on deceased from a distance of 06 inches, but medical report placed on record does not support it as no mark of blackening was shown on the injuries sustained by the deceased. Reliance was placed on the cases of MAA DIN AND ANOTHER VS. THE STATE AND ANOTHER (1998 S.C.M.R. 1528) and ABDUL RAHIM AND ANOTHER VS. THE STATE (2005 Y.L.R. 418) to support the ground of conflicting view by two institutions.
It is further argued by learned counsel for applicants that in identification parade as well as in court during trial of case both the applicants have been identified as accused of this case but no specific role has been assigned to them in the murder of deceased Azam Khan. All the three witnesses, whose statements have been placed on record though had identified both these applicants in company of main accused Muhammad Ali but except their presence with fire arm weapons, they are silent to the effect of role played by them.
Learned counsel for applicants further argued that according to complainant, he with the help of other PWs took deceased in injured condition from driving seat and after shifting him on the rear side he brought him to hospital but neither the clothes of complainant nor that of other PWs who helped him in shifting, were secured by Investigating Officer. So also no blood was found in the vehicle wherein deceased was said to had been murdered. Learned counsel for applicants has also placed certain bail orders of the other co-accused, who have been granted bail by the trial court as well as by this court but from perusal of record it appears that the rule of consistency is not appearing as they were released on some other grounds than taken by the applicants in this bail application. The applicants are in custody for the last three and half years. Only three witnesses are said to have been examined in the matter, prosecution is not definite s to how much time more they will take to complete the evidence. Therefore, besides other aspects as pointed out, the applicants are entitled for grant of bail on this ground too.
Learned State Counsel has opposed this bail application but he has not been able to place any satisfactory ground on record to justify that whether the case of prosecution of arrest of both these applicants from a mazar in Malir be taken as correct or the news as appearing in the newspapers be considered. The Ballistic Expert report as discussed above too is in contrary to the version of prosecution as according to complainant only one person Muhammad Ali had fired on deceased, whereas in the report, fires were shown to have been shot by all the three pistols sent to the Ballistic Expert, which creates doubt in the present set-up of prosecution itself.
In view of foregoing reasons the bail application of the applicants was allowed on 09.02.2007 and both the applicants were allowed to be enlarged on bail subject to furnishing surety in the sum of Rs.2,00,000/- (Rupees Two Lac Only) each with P.R. Bond in the like amount to the satisfaction of the trial court.
Karachi,
Dated: J U D G E