1. FIR No, 71 of 2008 was recorded in Police Station Bilal Colony on 17.03.2008 for an offence allegedly to have been committed on 16.03.2008. It was stated by the complainant that he was standing with Muhammad Arshad near Chowk of Hamza Masid, Sector 5-M, North Karachi when two boys came on a motorcycle. The pillion rider fired and fire hit Muhammad Arshad. The two boys escaped.
2. Muhammad Arshad was taken in a taxi to Abbasi Shaheed Hospital where he was pronounced dead. After FIR was recorded four empties were recovered from the spot. The present applicant was arrested on 9.7.2009 in connection with police encounter. It is claimed by police that the accused admitted his guilt during investigation. On 25.07.2009 he was identified in identification parade. Challan was submitted on 6.8.2009. Bail application under Section 497 of Criminal Procedure Code was filed which was dismissed by the Court below vide order dated 20th July, 2010 for the following reasons :-- "After hearing the learned counsel for the applicant/accused, DDPP on behalf of state, I have perused the record and find that it is an admitted, position that the name of applicant/accused is not mentioned in the FIR, but he was arrested on 09.07.2009 and weapon was recovered from his possession. The applicant/accused during interrogation has confessed his guilt regarding the commission of murder of deceased Muhammad Arshad. His identification parade was held on 25.07.2009 and the complainant is an eye-witness of the incident has lightly identified him before the IIIrd J.M., Karachi Central. I am not in agreement with the plea of learned defence counsel that the case of applicant/accused is of further enquiry. I strengthened my view with the case law, reported as 2002 P.Cr.L.J. 1386 which finds further strength from the case law, reported as PLD 2004
(SC) 822 the relevant portion of which is reproduced hereunder:-- "There would hardly be a case which would not require "further inquiry" therefore, this element, by itself, is no ground for granted bail under sub-section (2) of Section 497 Cr.P.C. Such orders are, on their very face illegal which do not fulfill the second condition regarding tentative opinion about the prima facie guilt or otherwise of the accused"
3. It is further held in the same case law that :- "Every hypothetical question which can be imagined would not mean that it is a case of further inquiry simple for the reason that it is a case of further inquiry simple for the reason that it can be answered by the Court subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of Section 497 Cr.P.C. is that there, are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that not guilty of the offence with which he is charged"
4. In the matter in hand there is direct evidence against the present applicant/accused in shape of eye-witness complainant Rizwan Ahmed Siddiqui who was present along with the deceased Muhammad Arshad at the time of incident. Besides this there is also recovery of the weapons from the possession of applicant/accused at the time of his arrest which further improves the prosecution case. No plausible explanation has been given by the applicant/accused to justify his false implication by the eye-witness to falsely involved him in this case. Further that charge has been framed against the accused persons on 12.11.2009, and there are 16 PW-s in this case, who are to be examined by this Court, so at this premature stage the applicant/accused cannot be considered as innocent. The facts and circumstances mentioned in the authorities relied upon by the learned counsel for the applicant/accused are different from the facts and circumstances of the present case, therefore, not applicable to this case. Hence in view of above situation, I find no merit in the bail application, hence the same is dismissed."
5. Learned counsel for applicant submitted that there is no description of applicant in the FIR and no name is stated in the FIR. He further submitted that there is no statement under Section 164 of Criminal Procedure Code available on record. He submitted that in the identification parade no specific role has been pointed out by the witness. He submitted that applicant was arrested in a false police, encounter in respect of which he has already been acquitted vide order dated 20.05.2010. He further submitted that another case was instituted by police against him. In that case Cr. Bail Application No, 489 of 2010 has been allowed by this Court vide order dated 18.08.2010.
6. Learned counsel submitted that yet another criminal case in which firing from motorcycle was alleged against the applicant was instituted and in that Case No, 10 of 2010 the applicant has been allowed bail by a Bench of this Court. He also referred to an order dated 1.10.2010 in a similar rider firing and killing case and bail application was allowed by the Additional Sessions Judge, Karachi, Central. Learned counsel further submitted that no crime weapon has been recovered from him.
7. Regarding value of identification parade, learned counsel relied upon case of Shafqat Mehmood & others Versus The State 2010 PSC (Cr1) 263.
8. Learned A.P.G. referred to the challan and stated that pistol has been recovered from the applicant.
9. He further submitted that four empties have been recovered from the spot and therefore there is corroborative evidence available which supports the identification parade.
10. I have considered arguments of the learned counsel and have also gone through the record. It is claimed by the prosecution that pistol was recovered from the applicant. It is also claimed by the prosecution that four empties were recovered from the spot on 17.03.2008. The report of Forensic Science Laboratory is at page 57. The crime number of the present case is not mentioned in the report of Forensic Science Laboratory. Learned Assistant Public Prosecutor failed to point out whether empties recovered on 17.03.2008 had been matched with the pistol. Therefore at best case of prosecution is a case of further inquiry.
11. It is contended by Mr. Mehmood A. Qureshi that name has not been mentioned in the FIR. Obviously since the person who lodged FIR did not know the culprit, it was not expected that names would be mentioned in the FIR. Mr. Mehmood A. Qureshi also argued that it is claimed that there was motorcycle from which filing took place and therefore at best the witnesses got a glimpse of the culprits and after sixteen months it is not expected that witness will remember as to who committed the crime. This aspect can only be thrashed after evidence is recorded.
12. In the .present case sole piece of evidence is identification parade. The Honourable Supreme Court in the case of Shafqat Mehmood & others Versus The State 2010 PSC (Cr1) 263 on the value of identification parade has given following critical observations :-- It is also settled principle of law that picking out of accused in identification parade is not a substantive piece of evidence. Such evidence is merely corroborative piece of evidence. It is pertinent to mention here that contents of the FIR reveal that witnesses had seen the accused for the first time. In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements. It is also settled principle of law that if accused were not named in the FIR identification becomes necessary. It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value and cannot be relied upon."
13. The trial Court has primarily relied upon Sardar Munir Ahmed Dogar's case PLD 2004 SC 822. The facts of that case were that on May 2003 one Sabir Ali got registered a case against Abdul Ghani and 20 others for committing murder of Muhammad Ashraf and causing injuries to his relatives including complainant. There was history of disputes between the parties. On the same day the other party also complained of an incident. Both the versions were registered and investigation was carried out. Petitioner was arrested on the same day. The observations made by Supreme Court in that case are in the context of a case having cross versions. In the present case only piece of evidence is the identification parade: A Single Judge of this Court while deciding Criminal Bail Application No, 1188 of 2010 (Furqan Qadri Versus The State) on 10.10.2010 regarding identification parade observed as under:- "It is an admitted position that in FIR the name of applicant does not transpire nor any role has been attributed to him. He was arrested on 9.7.2009 and was remanded to judicial custody on 25.7.2009, and he was produced from jail for identification parade on 30.7.2009 i,e, after about 21 days from the date of arrest. The applicant had remained in the custody of police for complete 16 days and he must be opened to public at Police Station but during this period no identification parade of applicant was held, therefore such piece of evidence may not be helpful to the prosecution and the case of applicant will require further inquiry as to the involvement of the applicant in the commission of alleged offence."
14. Although observations by a Single Judge may not be binding on other single judge but ratio of this judgment appears to be in accordance with law and the observations of the Supreme Court in Shafqat Mehmood's case. Had the empties been tested and matched with the recovered pistol the position might have been different but that has not yet been done. Therefore, it is a case of further inquiry. Consequently, this bail is allowed and the applicant is admitted to bail for a sum of Rs.
15. 200,000/-(Rupees Two Lacs only) with P.R. bond and one surety in the like amount to the satisfaction of trial Court. 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.