1. ' NADEEM AZHAR SIDDIQI, J.---The applicant is seeking bail in Crime No,280/2006 for the offence under section 302/34, P.P.C. Of Police Station Sohrab Goth, Karachi.
2. ' The allegation against the applicant is that he along with Shabana, Asim and Rukhsar by causing Chhuri blow has committed murder of Khuda Bux, father of complainant.
3. ' Firstly the applicant has moved his bail application before the Court of learned I-Additional Sessions Judge, Karachi Malir, who dismissed the same vide order dated 26-1-2007. Learned trial Court while dismissing the bail application has observed that the name of applicant has been nominated in the F.I.R. With specific role and the prosecution witnesses including eyewitnesses have implicated the present applicant; who has committed the heinous offence.
4. ' Learned counsel for the applicant submits that the applicant has committed no offence and has been falsely implicated in this case. He further submits that the person who has lodged the F.I.R. Is not an eyewitness and there is no incriminating article/material available on record to connect the applicant with the commission of alleged offence. He then submits that Dying Declaration before a police officer without completing the formalities provided under Rule 25.21 of Police Rules, 1934 is not admissible under the law. He also produced the photocopy of Dying Declaration. He also submits that- eyewitness Allah Dad, who is the cousin of complainant, has allegedly informed the complainant about the commission of murder of the deceased by the accused person and was examined under section 164, Cr.P.C. And has said nothing about the causing of Chhuri blow by the applicant to the deceased. Learned counsel while producing photocopy of certified copy of the statement of Allah Dad recorded under section 164, Cr.P.C. Before the Judicial Magistrate-V, Karachi Malir submits that in view of the conflict between the contents of the F.I.R. And statement recorded under section 164, Cr.P.C. Of the eyewitness reasonable doubt has been created and the applicant is entitled to the concession of bail on the ground of further inquiry. Learned counsel further submits that rule of consistency is attracted in the present case as the co-accused Shabana has already been granted bail by the Court of learned Sessions Judge and the other two co-accused, namely, Asim and Rukhsar were granted bail by this Court.
5. ' Learned counsel for the applicant has relied upon the cases of Fida Hussain v. The State PLD 2002 Supreme Court 46, Rajib v. The State 2001 PCr.LJ 701 and Muhammad Akhtar v. The State 1999 M LD 1853.
6. ' Learned State counsel has vehemently opposed the grant of bail to the applicant on the ground that the name of applicant is appearing in a promptly lodged F.I.R. With specific role and that the ocular evidence is supported by the medical evidence and above all in his dying declaration deceased has implicated the applicant.
7. ' I have heard the learned counsel for the parties and perused the record made available before me.
8. The allegation in the F.I.R. Against the applicant and co-accused is that they have caused Chhuri blow to the deceased father of the complainant. The complainant is not eyewitness of the incident and his cousin Allah Dad informed him about the commission of murder and was examined under section 164, Cr.P.C. In his statement he has not alleged that he had seen the applicant causing Chhuri blow to the deceased. Even in the statement he has not stated that he has seen the applicant running away carrying Chhuri. This conflict between the contents of the F.I.R. And 164, Cr.P.C. Statement of eyewitness creates reasonable doubt.
9. ' It is well-settled principle of law that at bail stage only tentative assessment has to be made and deeper appreciation has to be avoided. Dying declaration of the deceased before a Police Officer without complying with the provisions of Rule 25-21 of Police Rules, 1934 and without associating doctors or independent witness is doubtful and at this stage no finding in this regard can be given and it has to be determined at the trial whether the same qualified to be a dying declaration. The dying declaration was allegedly recorded before the registration of F.I.R., but the contents were not incorporated in the F.I.R, which creates doubt about the authenticity of dying declaration.
10. Furthermore, the co-accused, namely, Asim and Rukhsar similarly placed in the F.I.R. Have already been granted bail before arrest by this Court. From the perusal of the record it reveals that bail was also granted to the co-accused Shabana in this case. It is evident from the F.I.R. That role assigned to all the four accused persons nominated in the F.I.R. Is one and the same. In the F.I.R. It has not been specifically mentioned that who has caused Chhuri blow to the deceased. In view of the allegations against all the accused rule of consistency can be invoked in this case. In the reported case of Fida Hussain v. The State PLD 2002 Supreme Court 46 it has been held that rule of consistency must be followed in order to maintain balance and the doctrine of equality before law.
11. ' In view of the above position, there are no reasonable grounds for believing that the applicant has committed an offence which falls under the prohibitory clause of section 497, Cr.P.C. And the case of the applicant is of further inquiry, hence by passing short order dated 31-3-2009 the bail was granted to the applicant subject to furnishing surety in the sum of Rs,200,000 with P.R. Bond in the like amount to the satisfaction of the trial Court and these are the reasons of the said short order.
12. ' The bail application is disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.