2013 PLP 1615 (MLD)

AFTAB AHMED GORAR, J.

Applicant Shujaat Hashmi alias Shuja seeks post arrest bail in case registered under section 302/34, P.P.C. The brief facts of the prosecution case are that complainant is cousin of deceased Mohammad Iqbal Ahmed, who was residing with him and was serving in fire brigade Shah Latif Town. On 22-7-2011 he was on duty when at about 0330 pm, received telephonic message that his cousin has become injured and lying at Hussaini Chorangi, to which he along with his cousin Rehan Ahmed rushed there, wherefrom they were informed that his cousin has been shifted to Jinnnah Hospital. They went to hospital where elder sister of deceased Muhammad Iqbal met, she disclosed that due to prevailing law and order situation of the city firing was made in which his brother and another Mustaqeem Khan died.

2. Learned counsel submits that applicant /accused is quite innocent and has been falsely implicated in this case by the Police/complainant due to mala fide intention and ulterior motives. He submits that name of applicant does not find place in F.I.R nor the Hulia of applicant/accused is mentioned by the so-called witnesses nor the said witnesses had reported the matter to the police immediately after the incident. He submits that eye-witnesses through the identification parade was held who identified the applicant/accused without giving any description Hulliya, features, height of the person who had fired at the place of occurrence in their statement under section 161, Cr.P.C. and also no explanation is given by the witnesses that on what basis, they have identified the present applicant/accused, when they have not given any identification mark or features/complexion of the accused, nor described any specific role against the present accused and in absence of such details, it is settled law and held by superior Courts that at such circumstances, identification parade have no value and should be discarded. Moreover the certificate attached with I.T.P. is typed and it was not written by hand writing of learned presiding officer recorded the I.T.P. hence it has no legal value. He submits that P.Ws. does not belong to the place of alleged occurrence i.e. Sher Pao colony and by their address, it looks that they are living in other areas and police touts who have their evidence at the instance of police to make out their case. He submits that applicant/accused is political worker and due to political rival many cases have been lodged against the applicant/accused and he was booked in blind F.I.Rs. as such the case against him requires further enquiry. He further submits that the eye-witnesses did not attribute any specific role against applicant/accused in identification parade, hence it has no legal value in the eyes of law. He submits that alleged confession of accused before police is totally inadmissible in law under Articles 38, 39 of the Qanun-e-Shahadat Order, 1984. He submits that earlier after investigation police had recommended this case for disposal in "A" Class as there were no sufficient evidence against the accused and such earlier police report eye-witnesses did not disclose about seeing the alleged occurrence but subsequently the development have been made by I.O. mala fidely and the case against the applicant required further inquiry under section 497(2), Cr.P.C. He submits that during cross-examination the complainant himself has admitted that on inquiry from the place of incident he was informed that the accused was a tall person and look like a Pathan, but the present applicant/accused is neither Tall man nor he is Pathan. Therefore, he prayed for the bail. In support of his contentions he placed reliance on case-laws reported as: Shafique Ahmed and 4 others v. The State (2002 PCr.LJ 518 (Karachi)), Allah Ditta v. The State (2012 SCMR 184), Muhammad Arif v. The State (2007 YLR 2070), Abdul Malik v. The State (2010 YLR 732), Gul Nawaz v. the State (1998 PCr.LJ 112), Muhammad Siddique v. The State (1996 PCr.LJ 1603), Muhammad Hamid Qureshi, and others v. The State (2003 Cr.LJ 417). Allah Dita v. The State (2008 PCr.LJ 1581) and Naeem Shamshed v. The State (2011 YLR 833).

3. Learned A.P.-G. opposed the bail application on the ground that P.Ws. in their 161, Cr.P.C. statements have stated that they can identify the accused if see again. He further submits that applicant/accused was properly identified by the P.Ws. in identification parade.

4. Heard learned counsel for the parties and perused material available on record. Name of applicant/accused do not appear in F.I.R, nor any specific role is assigned to him. There was no eye-witness to the said incident and no description of applicant/accused were given in the F.I.R. The subsequent statement of complainant and P.Ws. in which they have nominated the present applicant/accused for the first time creates doubt. The subsequent statement of witnesses introduced by the complainant at belated stage are not worthy of credence because the complainant in clear terms in F.I.R. stated that it was an unwitnessed incident. Nothing on record to show that any weapon allegedly used in the crime has been recovered from the applicant/accused. The description given by the complainant during his evidence in Court in cross-examination that on inquiry from the place of incident he was informed that the accused was a tall person and look like a Pathan, but the present applicant/accused is neither Tall man nor he is Pathan. Record further reveals that applicant/accused was arrested on 22-6-2012 and the identification was held on 7-7-2012 there is unexplained delay of about 15 days. For what has been discussed above, I am of the view that there are no sufficient grounds for holding at this stage that the applicant has committed an offence punishable with death or imprisonment for life.

5. The result of above discussion is that applicant/accused has been able to make out a case for bail, therefore, he is admitted to bail subject to furnishing solvent surety in the sum of Rs.300,000 (Rupees Three Lac) with PR bond in the like amount to the satisfaction of trial Court. MWA/S-100/K Bail granted.