1997 P Cr (PLP)

Sardar Muhammad Ishaque for Applicant. M. Sarwar Khan, Asstt. A.-G. for the State. This bail application has been moved on behalf of the applicant who is involved in a case registered as F. I. R. No. 189 of 1994 under sections 147, 148 and 436, P.P.C. Briefly the case of the prosecution is that on the day of incident during 00-30 hours and 03-00 hours there were riot situation in Karimabad on Shahra-e- Pakistan. At this time the complainant who is S.H.O., Gulberg Police Station was on patrol duty and there was an announcement of strike by the M.Q.M. and a law and order situation was prevailing in the locality as there were firing in the air by the workers of the M,Q.M. during this period. It is also alleged that a Toyota Corolla Van was snatched by the M.Q.M. workers near Water Pump Chowrangi and the same was put to fire. Similarly, a taxi was snatched from a driver, which was also put to fire and so was a contract carrier. It is alleged that about 30 to 35 workers under the leadership of one Shahid Hussain were roaming about in the lanes who built bone fires. It is further alleged that they got the shops closed by force. It is also in the F.I.R. that the police party had identified six persons whose names which are in the F.I.R. a part from the said Shahid Hussain and all of them seeing the police party made good their escape. Accordingly the said F.I.R. was registered by the police under sections 336/ 149/148/147/341/427 and 435, P.P.C. In the said case the police had arrested a number of accused persons and the case was sent up for trial before the Special Court. A bail application was moved on behalf of all the sixteen accused before the trial Court. The order passed by the Judge of the Special Court No.l (S.T.A.), Karachi East shows that the bail was granted to five co-accused who are M.P.As. on the ground that their case is distinguishable from the case of the other accused and that S.P.P. had stated no objection. The bail application of the other accused was rejected. Being aggrieved the present applicant has moved this bail application. We have heard Mr. Sardar Muhammad Ishaque, the learned counsel for the applicant and the learned Assistant Advocate-General for the State. The learned counsel for the applicant has argued that in the present case the order passed by the trial Court is not a speaking order as no reasons have been assigned by the Judge for rejection of the bail application of the present accused or other co-accused nor any reasons have been assigned for grant of bail to the five co-accused. He has submitted that the name of the present applicant is not mentioned in the F.I.R. nor any specific role has been attributed to him. It is also stated by the learned counsel that the present applicant has not been subjected to identification test. As against this Mr. Muhammad Sarwar Khan, Assistant Advocate-General, Sindh has vehemently opposed this bail application on the grounds that the offences alleged are heinous and scheduled offences and that the names of the present applicant appears in the statements recorded by the police under section 161, Cr.P.C. We have considered the submissions of the learned counsel. It may be observed that the statements recorded by the police under section 161, Cr.P.C. of the witnesses who also belonged to the police force cannot per se be taken as evidence as they are not even signed by the witnesses. The F.I.R. in the present case is a very delayed one as the incident is alleged to have taken place during 00-30 hours to 03-00 hours while the F.I.R. is registered at 23-30 hours which means after a delay of about 20 hours from the time that the incident taken placed in the very locality where the police station is situate. It may also be observed that the present applicant who is not named in the F.I.R. and was arrested subsequently has not been put to identification test. Lastly, it may be observed that the prosecution has not been able to show as to how the case of the present applicant is distinguishable from the case of those who had been granted bail by the trial Court. Mere saying that the case is distinguishable by the trial Court would not make the case so. The trial Judge is required to act responsibly in dealing with such cases and assign the reasons for granting the bail or rejecting the bail. It is not mere whims of the trial Judge which should be the criteria for passing such orders. In view of the above discussion we admit the present applicant to bail and allow this bail application. The applicant shall be released subject to his furnishing one surety in the sum of Rs.1,00,000 (one lac) and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./M-2082/K Bail allowed.