MUHAMMAD AYUB Versus THE STATE

ORDER

1. This bail application is moved on behalf of the applicants Mohammad Ayub and Nazeer, who alongwith two others are facing trial before the Sessions Court East, Karachi for the offences punishable under Sections 302, 307, 333, 224, 225, 216, 397, P.P.C. read with section 17 (3) & (4) of the Offences against Property (Enforcement of Hudood) Ordinance, 1979.

2. Brief facts of the case are, that on 28-5-1984 Complainant Head Constable Mohammad Hamid alongwith police party had taken certain prisoners from Central Jail to the office of the D.M.L.A. and, was taking them back to the Central Jail, when ,they were attacked by four persons near the Central Jail. There was exchange of fire in which one Constable Mohammad Sadiq died and one Constable Rabi Nawaz received injuries. They were able to get the prisoners namely Kashmir Khan and Abdul Hameed Jatoi freed.

3. It is contended by the learned counsel for the applicants, that the only evidence against the applicants is the identification test after 14 days of their arrest and more than one month after the incident. It is submitted that all the witnesses are Police Officers. It is further submitted that there is no recovery of any crime weapon from the applicants and further, that they have remained in Jail for more than three and a half (31) years, but the case has not yet proceeded.

4. The order of the learned trial Court rejecting the bail shows that the bail has been refused to the applicants on the ground, that they were dangerous and desperate criminals.

5. It is submitted, that there is no material to substantiate this charge against the present applicants as there is no other case pending against them. It is also submitted, that the names of the applicants are not mentioned in the F.I.R. and the only evidence of identification in such case without any corroboration makes it a case for further enquiry.

6. Mr. Syed Sarfaraz Ahmed learned A.A.-G. appearing for the State concedes, that the only evidence against the present applicants is that of identification test. He further concedes, that there is delay in holding the identification test because the witnesses had- to be called and collected. He has also produced for the perusal of the" Court four identification charts with regard to the identification test of the accused. None of these charts is signed by any Mashir. There is no evidence, that the identification test was held in presence of Mashirs, but it was allegedly held in presence of Magistrate in the C.I.A. Police Centre.

7. It may be pointed, that all the witnesses in this case are Police Officers and it is submitted by the learned counsel for the applicants, that during the detention of the applicants in police custody, these witnesses have had enough opportunity to see them before the identification test. 'Further more these four charts show C that the identification of all the accused persons, who are four in number, was held between 12-00 noon and 1-00 p.m. It is submitted by the learned counsel for the applicants, that they were put to identification test at one time and were mixed up with 10 dummies only.

8. Mr. S. Sarfaraz Ahmed learned A.A.-G. is not able to say, if any other case is pending against the applicants, because he had sent for the Investigating Officer, but the Investigating Officer has not come as yet and the police papers available with him do not disclose that there is any other case pending against the present applicants. The order of the learned trial Court also shows, that no such other pending case was cited before the learned trial Court.

9. Mr. Syed Sarfaraz Ahmed learned A.A.G. submits that the very action of the applicants in attacking the police party and getting released some notorious criminals, in an act which indicates that they are desperate and dangerous criminals.

10. I am 'inclined to agree with him that, the persons performing such act could be considered dangerous and desperate criminals, but I find, that the evidence connecting the applicants with the alleged commission of offence is of scanty nature and requires further inquiry. The applicants have already remained in jail for about three and a half (3J) years and the case has not eves proceeded at all for no fault on their part.

11. Considering all the factors discussed above, I order that the applicants be released on bail on furnishing surety in the sum of Rs.50,000 and P.R. bond in the like amount each to the satisfaction of the trial 'Court.

12. S.A./M-398/K Bail granted.