2000 PLP 1697 (MLD)

ABDUL HAMEED DOGAR, J.

Applicant Muhammad Yousuf son of Qasim seeks bail in Crime No. 48 of 1994, under section 353/149/ 148/147/302/324, P.P.C. read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at Police Station Baldia Town, Karachi.

2. The brief facts of the prosecution case are that A.S.I. Shamsuzzaman lodged the above case on 16-3-1994 mentioning therein that on the same date he was on mobile duty alongwith Constables Fazal Hussain, Muhammad Naseer, Ghulam Murtaza and Atta Muhammad from 8-00 a.m. and had gone to Court and came back at about 10-35 a.m. and accompanied S.H.O. for patrolling in the area. While patrolling, the S.H.O. took a company of rangers in a truck with him and it was at about 11-30 a.m., u-lien they reached in front of Madina Hotel, where Captain Aamir of Sachal hangers was present in Government jeep. Meanwhile a mobile of Saeedabad Police Station with police personnel also reached there. At that time they heard a noise of firing in the area and one unknown boy, aged about 10/12 years, came there and informed that 10/12 boys, duly armed were present. Thereafter, the complainant party proceeded their and parked vehicles on the road and reached Kausar Chowk and saw Farooq Dada, Jawaid Dada. Ibrahim Dada, Haroon Dada, Majeed Manjila, Ghaffar Madah, Yaqoob Madah, Muhammad. Amin Madah, Hanif Turk and others, belonging tea MQM Group. On seeing the complainant party, they went on the roof of the building of Kausar Hall and school building and started firing from all four corners on them with intention to kill them, who also in retaliation fired from their respective weapons. As a result of firing, the officers and police personnel received fire-arm injuries and fell down on the spot, whereas the complainant and S.I. Nazeer took shelter and ran away from there in order to save their lives. Prior to leaving the spot, they saw Captain Aamir Constable Muhammad Sultan, P.C. Faqir Muhammad, P.C. Altaf Anwar and Incharge Muhammad Siddiq dead, whereas H.C. Muhammad Bashir and P.C. Fazal Hussain received injuries, who were later on removed to hospital. It is further alleged that the accused persons had taken away six SMGS and 3310 bullets.

3. It is contended by Mr. Mahmood A. Qureshi, the learned counsel for the applicant that the name of the applicant is mentioned in the F.I.R. According to him the applicant is Muhammad Younus son of Qasim, resident of House No.1735/533 of New Anjam Colony, Hub River Road, Karachi and not the one nominated in the F.I.R. According to him on the same allegations co-accused Muhammad Siddiq, Muhammad Yaqoob, Sultan Muhammad, Asif Kaku, Shaikh Fareed, Muhammad lqbal, Muhammad Jawaid, Shahid Mian, Shaikh Ibrahim, Rafiq Alain, Abdul Jabbar, Muneeruddin, Muhammad Jawaid, Saleem alias Dada, Muhammad Saleem and Muhammad Amin have been granted bail by the trial Court. The case of applicant, is on identical footing with them, as such he is entitled to the right of bail on the rule of consistency. He lastly submitted that the applicant was never declared absconder by the trial Court so much so that no proceedings under sections 88 and 87, P.P.C. were initiated against him, as such he cannot be termed to be an absconder. In support of his contentions he rel-M upon the case-law reported in 1989 SCMR 1987.

4. On the other side, Mr. Syed Jalil A. Hashmi, the learned Assistant Advocate-General, concedes to the above arguments and raises no objection to the grant of bail.

5. The order refusing bail to the applicant does not show that the proceedings under sections 88 and 87, P.P.C. were initiated against the applicant and in view of the above case-law he cannot be termed to be an absconder. Moreover, the applicant was arrested on 18-9-1998 and was put to identification test on 1-12-1999 and for such belated holding of identification test no explanation has been furnished. This and the other grounds make the case of the applicant of further inquiry.

6. Accordingly the applicant is allowed bail on the rule of consistency and shall be released on furnishing surety in the sum of Rs.1,00,000 (Rupees one lac only) and PR Bond in the like sum to the satisfaction of the learned Trial Court. H.B.T./M-73/K Bail granted.