2004 PLP 2247 (YLR)

Over Rule.

2. Dismissed having become infructuous.

3. Granted with all just exceptions.

4. The applicant is facing trial in Crime No. 18 of 2000 Police Station, Baiji Sharif and such case is pending being SC No.57 of 2000 in the Court of learned IIIrd Additional Sessions Judge, Sukkur for the offence under section 302/34, P.P.C. 14/4 HO 13-DAO. Bail plea has been declined by the learned trial Court, hence he filed the present bail application before this Court.

5. Briefly stated the facts of the prosecution case are that Muhammad Hasil lodged F.I.R. at Police Station, Baiji Sharif stating therein that on the night of incident he alongwith others were coming on tractor to village at about 8-30 p.m. In the way the identification parade was conducted and TT Pistol, Cash of Rs.630 and identity card of deceased Muhammad Qasim was recovered from him.

6. This bail application has been moved on several grounds. Some of the main grounds are that the FIR that has been registered pertains to a night time incident and the alleged accused were by the complainant on the light of the tractor but they had hidden faces out of three one person tried to take money from the pocket of Muhammad Qasim who informed the person that he had nothing. On this the person fired at Muhammad Qasim, therefore, all the three run away. According to the counsel for the applicant that challan has been submitted by the concerned authorities but the name of applicant Aijaz Ali has been shown and supported the contention of the applicant that he is innocent. Furthermore Mashir of Wardat, identification and arrest namely Rasool Bux Malik and Khuda Bux Malik have sworn affidavits exonerating the applicant. They have further stated that the applicant was never arrested in their presence nor identification parade has taken place in their presence. The police has forcibly taken the signatures on blank papers. According to the counsel for the applicant in-such a situation bail has to be granted. He has referred to the case of Gul Hassan v. State 2003 MLD 1526. In this case bail was granted after the Court came to the conclusion that the case was registered against an unknown person. The present witnesses had subsequently recorded their statements and implicated the accused. Court held that the role played by the accused in offence and also his constructive liability would require further enquiry.

7. Furthermore, on the ground that the name of the accused did not appear in the F.I.R. The counsel has further relied on the case of Muhammad Nawaz v. The State 1993 SCMR

3. In this case bail was granted by the Honourable Supreme Court where the P.Ws. who had sworn affidavits appeared in Court and supported what they had stated in the affidavits to the effect that the accused was not implicated in occurrence of the incident.

8. The learned counsel has also relied on the case of Dadan alias Dad Muhammad 2003 PCr.LJ 1510 in this case bail was granted and it was observed that the name of the accused did not appear in the F.I.R. but was subsequently brought on record by virtue of statements recorded by the P. Ws. The counsel has also relied on the case of Bashir v. The State 2003 PCr.LJ 1521, where in a detailed judgment, the Court has granted bail on the grounds of hardships to the applicant/accused. In the present case the applicant is behind the bars since 3 years and six months. The counsel has also relied on the case of Nadir v. The State 2003 PCr.LJ 1459 and the case of Dadan v. State 2003 PCr.LJ 1510.

9. The counsel has also argued the other several grounds which I need not go through at the present moment. It would be sufficient to note that several bail applications had been moved which were dismissed thereafter the cases have been transferred and in one or the other delay has taken place. Certified copy of the case diary has also been produced by the applicant. The affidavit sworn by P.W. Khuda Bux and Rasool Bux which are also on record. It is to be appreciated that the accused was arrested on 3-5-2000 and identification parade was carried out on 4-5-2000. Inspite of the fact that his name does not appear in the F.I.R. nor any description has been given he was arrested and is in jail for the last three years. A bail application was moved before this Court and the Court had disposed of the same with the direction that within 4 months time trial should be concluded. This order was passed on 31-5-2002. According to the learned counsel for the applicant and the case diaries and the case is still pending.

10. Based upon the dicta laid down by the Honourable Supreme Court, this only becomes a justification for grant of bail.

11. Under these circumstances enumerated above and the facts, and the case-law as mentioned above, bail is granted to the applicant Aijaz Ali in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Court. H.B.T./A-58/K Bail granted.