ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail Application  No.928 of 2010. _____________________________________________________

Date                             Order with signature of Judge

For hearing

13.10.2010.

Mr. Habib Ahmed, Advocate for the Applicant

Ms. Abdullah Rajput, A.P.G.

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            The instant bail application is directed against the order dated 31.8.2010 passed by the learned IVth Additional Sessions Judge (East) Karachi in Bail Application No.1224 of 2010, whereby the bail was refused to the applicant.

Brief facts for the purposes of disposal of the instant bail application and the prosecution story as contained in the F.I.R are that with reference to entry No.30 of daily diary of this police station, I SIP Fazal Hussain, after receiving statement U/S 154 Cr.P.C , have came back and contents of the statement are as under. At Emergency Ward, Abbasi Shaheed Hospital, on 06.06.2009 at 0120 hours, statement U/S 154 Cr.P.C of Najam-ul Moin s/o Moinuddin Khan R/O House # 1/1141, Shah Faisal Colony, Karachi, disclosed on inquiry that today on 06.06.2009, I was on my duty at Hassan Square and at 1725 hours, my friend Rao Nadeem informed me on phone that my brother was present at his shop namely A.A. Communication and at 1720 hours four boys came at the shop A.A. Communication, Shah Faisal Colony No.3, out of them two boys came and asked about my brother, “who is Ajmal”, whereas two boys remain standing outside. After enquiring the name both boys started firing and my brother was severely injured. Other friends took my brother to Abbasi Shaheed Hospital where he died during treatment due to injuries. For the last 2, 3 days my brother received several phone calls through which he was threatened to be killed. I came to know that they were; I, Rafi Dad, 2. Akhtar Hussain Bhosa, 3. Hamid Piya and 4. Asim. My report is against 4 persons, who killed my brother by firing, legal action may be taken. My brother has been killed by the 4 persons on the desire of Afaq Ahmed. This is my statement heard the same which is correct.

After registration of the case applicant/accused was arrested and challan has been submitted before the learned trial Court.

Learned counsel for the applicant/accused has submitted that in the instant case, complainant is not eyewitness of the incident and came to know about the alleged incidence through some friend who has allegedly stated the incident to him on phone. Learned counsel further submitted that no specific role is assigned to the applicant/accused nor any identification parade has been made as per law, whereas the applicant/accused was identified at police station. Learned counsel further submitted that the applicant/accused’s right leg is imputed below the knee but no such description is mentioned in the FIR or challan. Learned counsel has also referred to an order passed by this Court in Cr. Bail Application No.1442/2008, wherein the present applicant/accused was granted bail on somewhat similar grounds. Learned counsel argued that the present applicant/accused has been falsely implicated in this case on the basis of political rivalry and is behind the bar since his arrest as such he may be admitted to bail. In support of his contention, learned counsel has placed reliance in the case of  Jaffar and others v. The State 1980 SCMR 784 and Dilmurad v. The State SBLR 2010 SC 275.

Conversely, the learned A.P.G has vehemently opposed the grant of bail and submitted that the present applicant/accused has the history of being involved in several criminal cases. He further argued that there are eye-witnesses of the incident whose evidence has been recorded, wherein the present applicant/accused has been implicated in the alleged crime. Learned APG further stated that this was a predetermined offence as the deceased was being demanded extortion money and on his refusal he was killed. Learned A.P.G further stated that since the applicant/accused has been nominated in the FIR, no reference to description and identification parade under the circumstances of this case is required. Per learned A.P.G, if the applicant/accused is enlarged on bail he will repeat the similar offences, hence he is not entitled to concession of bail. In support of his contention, learned A.P.G has placed reliance in the case of Muhammad Afzal and another v. The State 1982 SCMR 129.

I have heard the learned counsel for the applicant as well as learned A.P.G and perused the record of the case. The emphasis of the arguments of the learned counsel for the applicant is that the complainant in the instant case is not the eye-witness, whereas neither any specification of the applicant/accused has been mentioned nor any identification parade has so far been made. It appears that in the instant case the applicant/accused alongwith other co-accused persons have been specifically nominated by the eye-witnesses, therefore, the emphasis on identification parade looses its efficacy. Once a person has been specifically nominated by name in the F.I.R, the identity of the accused cannot be considered as doubtful. Objection in this regard under the circumstances appears to be misconceived. I am guided in my view by the decision of five members Bench of the Hon’ble Supreme Court in the case of Muhammad Afzal and another v. The State 1982 SCMR 129.

In the instant case the charge has not so far been framed and the matter is yet to proceed on merits, whereas as per prosecution story, there are eye-witnesses of the alleged incidence to connect the accused person with the alleged crime. However, on perusal of the FIR and on tentative assessment of the material available on record, it appears that there is nothing on record to show which, out of four persons nominated in the FIR, alleged to have fired at the deceased, whereas none of the alleged eye-witness has given the distinct specification of the present applicant/accused who is a handicapped person, as his right leg has admittedly been imputed below his knee. Under the circumstances of the case, the case of the present applicant/accused appears to be distinguishable from the case of other accused persons nominated in the FIR. Moreover, under some what similar circumstances the present applicant/accused in Cr. Bail Application No.1442 of 2008 vide order dated 2.1.2009 by another bench of this Court was granted bail on the ground of being handicapped person.

In view of hereinabove, I am of the view that the case of the present applicant/accused appears to be doubtful and distinguishable from the other co-accused nominated in the FIR, who is admittedly a handicapped person, hence requires further inquiry into the matter. Accordingly, the applicant/accused is admitted to bail subject to furnishing surety in the sum of Rs.2,00,000/- (Rupees Two Lac) with P.R. bond in the like amount to the satisfaction of the trial Court.

It is clarified that if the applicant/accused misuses the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicant/accused as per law.

Needless to observe that the observations made hereinabove are tentative in nature and trial court shall not be prejudiced by any such observations and shall decide the case strictly on merits keeping in view the evidence available on record.

JUDGE