1. ' MUNIB AHMED KHAN, J.---In this case the applicant Murtaza Hussain Zaidi, is facing trial in F.I.R.
2. No.154 of 2004 under sections 302/397/392/34, P.P.C. According to the facts one Muhammad Rehan Sehgal while carrying cash, was intercepted by four persons and in a scuffle was shot with the Pistol on 29-9-2004 at about 1145 hrs. He was taken to Hospital but died on 30-9-2004. In the challan four accused persons including applicant have been named.
3. ' The learned counsel for the applicant submits that applicant hasbeen involved on the ground that one of the alleged accused Muhammad Saleem pointed out the place of incident and named other persons but that piece of evidence cannot be taken into account as according to prosecution itself Muhammad Saleem was brought from jail under permission from the District Judge and thereafter he allegedly pointed out the place of incident. He further contends that nothing on record appears to show as to in what offence and on what date he was sent to jail and whether on the particular date of alleged incident he was in jail or some where else. Learned counsel further submits that according to the challan itself, submitted by the police, it has been admitted that Muhammad Saleem, co-accused, who allegedly pointed out place of incident was not identified. He further submits that there are six alleged eye-witnesses and according to their versions, as has been picked up in 161, Cr.P.C. Statement, deceased was hit by a bullet from front side, while according to F.I.R. Applicant was hit from the back. He further submits that there is no statement of the deceased himself, notwithstanding the fact that he remained alive for 15.35 hrs and died on next date of incident i,e, on 30-9-2004 on 320 hrs. He further submits that there is no mention of the name of the applicant in the F.I.R., therefore, in the circumstances when there is conflict between the ocular evidence as well as the medical evidence then benefit of doubt may be given to the accused persons. He submits that statement of a co-accused with corroboration cannot be taken into account and specially when the co-accused himself was not identified. He submits that accused was arrested on 16-12-2005 in another false case, while he has also been shown arrested in this case on 17-12-2005. He submits that identification parade took place after fifteen months and no reason has been given for its abnormal delay. Learned, counsel further submits that as per prosecution, there were six witnesses present at the scene, including the police officials but none of the accused was caught or challenged by either of them. He further contended that all the six witnesses are different in their version while in the 'past one year even the charge has not been framed and the applicant is languishing in jail.
4. ' On the other hand learned state counsel after hearing the arguments and examining the documents available on record has not seriously opposed, as no identification parade was available in the police file while PC Saifullah and HC Rehmatullah, who were allegedly present at the place of incident have not discharged their duties notwithstanding the facts, that they were armed.
5. ' From the factual position coming on record, as well as the arguments it appears that according to the complainant deceased has given some statement to the complainant, which has been recorded through complainant in the shape of 161, Cr.P.C. Statement which is in addition to the F.I.R.
6. According to medical report deceased remainedalike for 1535 hrs but police has failed to record his statement, which could be converted into dying declaration. It is also apparent that Muhammad Saleem was brought from the jail under permission of the District Judge and then he allegedly pointed out the place of incident, while the police itself is submitting in the challan that he has not been identified. The delay in identification parade is also serious while the same is missing from police file. The record shows that there was identification parade of Muhammad Saleem was not identified while other three accused were identified.
7. ' Keeping in view the citations presented by the learned counsel for the applicant i,e, 1997 SCM R 32, 1980 SCM R 784, 2006 M LD 81, on the point that benefit may be given to the accused when there is conflict between the ocular and medical evidence as well as absence of specific role. Learned counsel has also cited and 2004 PCr.LJ 1080. He has further referred bail order, dated 11-10-2006 of Muhammad Saleem in Criminal Bail Application No.781 of 2006 and the 3rd citation on the point of alleged admission of an accused towards the pointation before the police was not taken into account. In the above factual position some doubts have been created hence benefit of the same to be given to the applicant.
8. ' In the circumstances the applicant is admitted to bail in the sum of Rs,100,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.