MUHAMMAD ASIF Versus State

ORDER

MUHAMMAD AFZAL SOOMRO, J.--- By this order I propose to dispose of this criminal bail application filed on behalf of the applicant, Muhammad Asif, in a case bearing F.I.R. No.227 of 2004, registered with Police Station Sachal Karachi, for offence punishable under sections 148/149/324/302/34, P.P.C.

2. The applicant moved bail application before the learned 1st Additional Sessions Judge, Malir, Karachi, which was dismissed vide his order, dated 5-10-2004. Against the said dismissal order, the applicant moved Criminal Bail Application bearing No.1121 of 2004 before this Court, which was dismissed on 26-1-2005.

3. The record shows that the applicant again approached the learned 1st Additional Sessions Judge, Malir, Karachi, for bail, which was dismissed vide order dated 21-10-2005, hence the present application for bail.

4. The prosecution story as enunciated in the F.I.R., lodged by complainant Hidayatullah, is as follows:--

"Complaint is that I am residing at above-mentioned address and working as Mason. On 21-8-2004 at 5-00 p.m. Hussain Roomvi and some duly armed persons came at Shar Village and had speech of emotion and hatred. As such my brother Liaquat Marfani and Sarwar Lund stopped them not to spread hatred, whereupon Hussain Roomvi and his companions went away by threatening that they will see us tomorrow. Today, on 22-8-2004 at 6-00 p.m. I along with my brother Liaquat, Sarwar Lund, Hafeez Marfani, Ghulam Nabi Marfani and Gulbahar Shar were available at the outside of our house and noticed three vehicles coming towards us. Out of those two vehicles parked at some distance and some persons deboarded and vehicle/high roof came near us, from which Hussain Roomvi holding T.T. pistol and two other persons armed with KK and Repeater respectively deboarded and Hussain Roomvi disclosed with his companions that those are same persons who stopped us from speech and do not spare them. Saying so Hussain Roomvi fired at Liaquat and Sarwar by his T.T. pistol. The person armed with Repeater fired at me with intention to commit murder and I fell down on earth in order to save myself and fire hit one of the companions of accused standing behind me. Resultantly my brother Liaquat. Sarwar Lund and one of the companions of accused died and accused made good to escape. On the commotion of firing villagers gathered. Thereafter, I took the corpse of Liaquat and Sarwar to hospital and leaving those there complaint that Hussain Roomvi along with his 10/12 companions duly armed fired at my brother Liaquat and Sarwar and one of his companions and thereby committed their murder and also fired at me with intention to murder. Report is made and signed as under.

??????????????????????????????????????????????????????????????????????????????????? (Sd.) Hidayatullah"

5. The investigation followed in the due course the case of the applicant along with co-accused was sent up to stand trial in the Court of law.

6. I have heard Mr. Asif Ali Pirzada, learned counsel for the applicant, Mr. Arshad Lodhi, A.A.-G. for the State.

7. It has been contended by learned counsel appearing on behalf of the applicant that he is innocent and has falsely been implicated in this case. It has further been contended by the learned counsel that neither the name nor any specific role assigned to him, finds place in the substance of F.I.R. It has further been contended by learned counsel for the applicant that nothing incriminating was recovered from the possession of applicant. The applicant was kept at Column No.2 of the challan. The eye-witness did not identify the applicant in the identification test held by learned IIIrd Civil Judge/Judicial Magistrate, Malir, Karachi. The applicant is behind the bars for the last sixteen months. It has also been contended by the learned counsel that the identification parade was held after inordinate delay of 13 days which has no evidentiary value in the eyes of law, hence the case of the applicant comes within the ambit of section 497(2), Cr.P.C. and requires further enquiry. It has also been contended by the learned counsel that the prosecution witnesses have not implicated the applicant in their statements, recorded under section 164, Cr.P.C. and exonerated the applicant, hence the applicant is entitled to the grant of bail. He has lastly argued that the name of the applicant does transpire in Column No.2 and during investigation prosecution have exonerated the applicant from the commission of the crime. In support of his aforementioned contentions he has relied upon the cases of Ghulam Rasool v. State 2002 MLD 7; Ghulam Rasul v. State 1982 SCMR 440; Dr. Muhammad Aslam v. State 1993 SCMR 2288 arid Aurangzaeb v. State 2003 PCr.LJ 1728.

8. Conversely, learned counsel appearing on behalf of the State has opposed the grant of bail on the ground that the applicant is fully involved in the commission of the offence and the applicant was present at the scene of offence with Hussain Roomi and 15/16 other persons. He has requested that the trial Court may be directed to examine the complainant and other material witnesses.

9. I have gone through the record, considered the arguments, advanced by the learned counsel for the applicant and learned counsel appearing on behalf of the State.

10. It is an admitted fact that the name of the applicant does not transpire in the F.I.R. and no specific role has been attributed to the applicant. The prosecution witnesses, namely (i) Hafizullah,' (ii) Gulbahar and (iii) Ghulam Nabi, whose statements recorded under section 164, Cr.P.C. were produced by the learned counsel for the applicant as Annexures "D", "D/l" and "D/2", have exonerated the applicant from the commission of the present crime. The authorities relied upon by the learned counsel for the applicant have fully supported A the case of the applicant.

11. In view of the above facts and circumstances, I am of the considered view that the learned counsel for the applicant has been able to make out a case for bail. Accordingly, bail is granted to the applicant in the sum of Rs.1,00,000 (Rupees one hundred thousand) with P.R. bond in the like amount to the satisfaction of the Nazir of this Court.

Criminal Bail Application No.1060 of 2005 stands disposed of.

H.B.T./M-47/K ??????????????????????????????????????????????????????????????????????????????????? Bail granted.