2000 PLP 666 (MLD)

This bail application has been moved on behalf of applicant/accused Waseem Langra who is facing trial in the Court of II‑Additional Sessions Judge, Karachi, West in Sessions Case No.74 of 1996 for an offence punishable under section 302/34, P.P.C. Brief facts which require consideration for decision of this bail application as stated in the F.I.R. bearing No. 130 of 1995 of Police Station Mominabad lodged on 26‑5‑1995 at about 7.35 a.m. are that complainant Shaukat and Mama was at his home on 25‑5‑1995 when at about 8.15 a.m. one boy came to his house and informed him that Muhammad Rauf, his cousin had received bullet injury on which he proceeded to the place of incident and found a fire‑arm injury on the chest of Rauf. It. was further stated in the F.I.R. that one more boy, namely, Muhammad Hassan Alam had also received fire‑arm injury and he was also lying injured. On enquiring from the persons present on the spot he was informed that at about 8‑00 p.m. 5/6 armed persons had arrived there in a high‑roof and opened fire on the two injured persons. Both the injured were taken to the hospital where both of them succumbed to their injuries. This F.I.R. was recorded by Sub -Inspector Dilwar Shah of Police Station Mominabad and investigation of the case was undertaken. The applicant/accused was taken into custody on 28‑1‑1999 in a case registered under section 13(d) of Arms Ordinance wherein he disclosed to the concerned polices officials of having committed the murder of both the aforesaid deceased persons. After completion of investigation the case of the applicant/accused was sent up in the Court of II Additional Sessions Judge, Karachi West, to face trial for the offence of murder. I have heard the arguments of both the learned counsel, perused the material on record as well as the case law relied upon by the learned counsel for the applicant/accused. None of the persons has been able to identify the persons who had opened fire at the aforesaid two deceased persons as per F. I. R.‑Further statement of complainant Shaukat alias Mama recorded under section 161, Cr.P.C., on 18‑7‑1995 apart from being delayed was a deviation from his original version that assailants were not identified. Even otherwise, the value of such statement is open to doubt as it was made after a delay of more than two months and in support of the above contention reliance is placed on the case of Muhammad Sadiq and another v. The State (PLD 1960 SC (Pak.) 223). In this case a witness who was friend of deceased had not disclosed to anyone that he had seen the murder and the name of the assailant for nearly 24 hours and his statement was held to be of "least value". The applicant/accused was not put to identification test by the complainant and other prosecution witnesses after his arrest. Complainant in his further statement disclosed that the applicant/accused had caused the fire arm injuries to both the deceased and further that the complainant and the applicant/accused were not known to each other prior to the incident which necessitated holding of identification test by the police for purpose of testing the memory of complainant Shaukat alias Mam. In the case of Farman Ali v. The State (1997 SCMR 971) the Supreme Court was pleased to hold that identification parade was necessary if culprits were not named in the F.I.R. as it amounted to a check against false implication and also constituted good piece of evidence against genuine culprits. Absconsion of the applicant/accused could not be proved beyond doubt by the prosecution on account of the fact that neither the name of the process‑server nor his parentage, nor his designation was mentioned in the deposition form on the basis of which an order under sections 87 and 88 of Cr.P.C., declaring the applicant/accused as a proclaim offender was made. The learned counsel for the applicant/accused submitted that the applicant/accused was also entitled to the grant of bail on the rule of consistency. In this connection he drew my attention to the order of this Court, dated 11‑8‑1996 passed in Criminal Bail Application No.982 of 1996 (Abdul Khalique v. The State) wherein co‑accused Abul Khalique who is facing trial for the murder of the aforesaid two deceased persons was enlarged on bail. The case of the applicant/accused is at par with the case of co‑accused Abdul Khalique and on the ground of rule of consistency he is entitled to be provided the benefit of bail. Upon the above discussion I am of the view that a case is made out for enlarging the accused on bail. Accordingly, bail is allowed to the applicant/accused on furnishing one solvent surety in the sum of Rs.1,00,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court. H.B.T./W‑1/K Bail granted.