MUHAMMAD RAFIQUE ALIAS RAFT DANISH Versus THE STATE

ORDER

1. The applicant has been involved in Crime No. 192 of 1994 registered at Gulberg Police Station. F.I.R. was lodged by S.H.O. Parvez Akhtar on 4-5-1994 at 4 a.m. stating therein that on that day M.Q.M. Leader Altaf Hussain and other members of Rabita Committee made an appeal for observing protest day against the Government and as a show of force to suspend business and traffic. A mob of 25/30 workers of the party started firing in air in Blocks 18 and 20 near the Gulberg Chowrangi at Water Pump. The mob set at fire some bank branches, some houses, a few motor vehicles and damaged other property. There was counter-firing between the rioters and police, which caused injuries to Haji Muhammad Khan. The mob stopped traffic by burning tyres and pelting stones at the vehicles. Police identified some of the rioters as Muhammad Tariq, Muhammad Aslam, Tariq Mehmood, Muhammad Anwar and Shakeel Ahmed, Amir Ayub and Muhammad Riaz and arrested them. Other made their escape good from the scene.

2. A bail application was moved in the Court of Special Judge-I (S.T.A.), Karachi who by his order, dated 26-12-1994 granted bail to five other accused namely Farooq Sattar, Muhammad Haroon, S.M. M6hiuddin, Dr. Sagheer Ahmed and Waseem Akhter, while rejected the application of remaining accused including the present applicant.

3. Mr. Sardar M. Ishaque learned counsel for the applicant has argued that name of the applicant does not appear in the F.I.R. and no identification test has been held through any of the witnesses. He further submits that case of the present applicant is identical to that of five co-accused who have been granted bail by the trial Court.

4. On the other hand Mr. Muhammad Sarwar Khan, Assistant Advocate -General, Sindh has vehemently opposed this bail application on the ground that the offences alleged are heinous and scheduled offences.

5. We have considered submissions of the learned counsel. It is observed that neither the name of the present applicant does appear in the F.I.R. nor any identification test has been held. Apart from police personnel there are public persons who have witnessed the incident and whose property has been damaged and some of them received injuries. None of them in their 161, Cr.P.C. statement has implicated the present applicant. After arrest identification test could have been held through these witnesses but this important piece of evidence has been deliberately destroyed by the police, for the reasons best known to them. Identification test could have also held through Police Officers who have witnessed the incident but this was also not done. 1t is also 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 have 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 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.

6. In view of the above discussion we admit the present applicant to bail.

7. The applicant shall be released subject to his furnishing one surety in the sum of 1 Rs.1,00,000 and P.R. Bond in the like amount to the satisfaction of the trial

8. Court.

9. N.H.Q./M-2087/K Bail allowed.