1. ' SYED HASAN AZHAR RIZVI, J.---This bail application is filed by the applicant after rejection of their bail application vide order dated 25-8-2011 passed by the VIth Additional Sessions Judge, Karachi- East.
2. ' Precisely, the facts of the case as narrated in the F.I.R. Are that the complainant Ghulam Haider son of Abdul Rehman Baloch is residing at House No.121, Street No.3, .Juma Goth, Korangi No.6 along with his parents and brothers. On 21-6-2010 at about 0600 hours one Farhan alias Pappu Mahajir, resident of Korangi No.5-1/2 came at the Otaq of cousin of the complainant namely Muhammad Bux son of Muhammad Arif, where complainant and his brother Naseem Haider were present meanwhile two other persons also came there, who were unknown to the complainant, thereafter, Naseem Haider the brother of the complainant disclosed their names as Habib and Umer Khan, Then Habib, brother and cousin of the complainant went outside the Otaq and talked with each other and after about one hour when said Habib and Umer Khan were leaving then they asked from Muhammad Bux that program of Chakra Goth is confirmed or not whereupon Muhammad Bux replied that said program is absolutely confirmed. Then they after taking dinner went on sleep and Pappu Mahajir also left the place. On 22-6-2010 the complainant and his brother Naseem Haider went to the Otaq of their Cousin Muhammad Bux where Muhammad Bux and his brother told him that they had some meeting with a party and they went away in the car of his cousin Muhammad Bux bearing Registration No.ARY-556, XLI, Black in colour, After sufficient time the complainant talked with his brother, who told him that the meeting to Chakra .Goth has been cancelled and informed that they were proceeding to PNT Colony for selling the vehicle along with Pappu, Tafiq, Umer Khan and Habib and they would return home from PNT Colony. At about 1-00 O'Clock the police officials called from the mobile of Muhammad Bux, who asked about Muhammad Bux and the complainant told them that he is his cousin whereupon they told that a bullet has hit Muhammad Bux and asked the complainant to come at Jinnah Hospital. On the said informatioh the complainant, one Ghulam Rasool son of Arif and other persons of the Goth went to the hospital and saw that his brother, cousin Muhammad Bux, Pappu Mahajir and Habib Punjabi were lying dead in the mortuary and they had bullet injuries on their persons. About one week prior to the said incident his brother Haider and cousin Muhammad Bux told the complainant that they had received threats of murder on their phones from Yaseen Bangali son of Abdul Haq, Sohail alias Abu Huraira son of Ali Ahmed, Ejaz alias Kala Munna son of not known and Zahid Miller son of not known. The said persons have killed his brother Naseem Haider, cousin Muhammad Bux and their friends by causing fire arms shots.
3. ' Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated by the complainant in connivance with the police malafidely. There is unexplained delay of two days in recording the F.I.R. And in the F.I.R. The complainant stated that about one week prior to the incident his brother disclosed the names of present applicant and other co- accused, who were extending threats of killing to them but no complaint was lodged by the complainant to the concerned authorities. It is further contended that applicant was arrested in another case bearing F.I.R. No.188 of 2010 under section 13-D of the Arms Ordinance when the father of the complainant identified him and he was arrested in the present case. He further submits that a person namely Umer Khan was shown to be present at the time at incident but the police neither cited him as witness nor produced whereabouts of the said person despite direction given by this Court. He further contends that one Altaf Hussain son of Malik Ahmad Yar, who had identified the applicant in identification parade, never lived in the locality and on inquiry by A.S.-I. Imran Ahmed during investigation it reveals that he was never resided on the given address and he is untraceable according to the report. He further submits that identification test being corroborative piece of evidence cannot be formed basis of conviction and carries no weight as held by the Divisional Bench of this Court in 2007 YLR 2142 (Sabir Ali Waseem and 3 others v. The State). Learned counsel for the applicant has further relied upon full bench's judgment of the Shariat Appellate Bench reported in 2008 SCM R 302 (Sirajul-Haq and another v. The State) wherein it was held that "unless role to each accused in crime is attributed at the very outset, his identification at identification parade or in court would be of no use". It is further urged by the learned counsel for the applicant that involvement of accused in number of cases is not sufficient to deprive him of his liberty of granting bail. He has relied upon 1991 SCMR 412 (Muhammad Rafique v. The State) in this regard.
4. ' Learned A.P.-G. For the State vehemently opposed the grant of bail application to the applicant and submits that in the incident four innocent persons had lost their lives after sustaining bullet injuries due to firing of the accused persons. Learned A.P.-G. Further submits that the present applicant was nominated in the F.I.R. An eye-witness, who was by-passer who was present at the time of incident has identified the applicant before the Judicial Magistrate in identification parade.
5. ' Learned counsel for the complainant submits that the complainant and the witnesses of the case due to fear are changing their addresses and their lives are on stake. He further submits that the witness Altaf Hussain on 15-7-2010 identified the applicant in identification parade. He further contends that the applicant is involved in number of cases and he provided criminal history of the applicant/accused. He further submits that name of the applicant is mentioned in the F.I.R. With role of firing, resulting the death of four persons. Common intention of the accused cannot be determined at bail stage and applicant has been charged with the offence of capital punishment and his innocence/guilt would be determined by the trial court after recording of evidence. He has relied upon 2011 YLR 2270 (Zulfiqar Ali v. The State).
6. ' I have heard Mr. 'Muhammad Aslam Khan Durrani learned counsel for the applicant, Mr. Shahid Ahmed Sheikh learned A.P.-G. And Mr. Aqib Rajpar learned counsel for the complainant.
7. ' Applicant and other accused persons were assigned specific role of firing, which resulted death of four innocent persons. An eye-witness Altaf Hussain son of Malik Ahmed Yar, who is his statement under section 161, Cr.P.C. Stated that on 22-6-2010 he was standing under a tree when a black colour car came there at about 12-45 or 1-00, two motorcycles came there, two persons were sitting on each motorcycle, who started firing from four sides of the car, one white colour car was also following them and he can identify those persons.
8. ' Learned counsel for the applicant in his arguments has placed reliance on the cases which pertains to the merits of the case and not on the point of bail in a murder case, therefore the same are not applicable to the present case. Objections on the identification parade was raised by the applicant's counsel. According to him validity of the identification test alone was not sufficient to discard said proceeding unless substantiated by some material. Deeper appreciation of evidence is not desirable and only tentative assessment of the evidence is to be considered at the time of deciding a bail application.
9. In the present case applicant had been identified by one of the witness as a co-accused, who had participated in occurrence. Since the applicant was named in the F.I.R., an eye-witness identified the applicant in identification parade before the Judicial Magistrate, Case of the applicant/ accused falls in the prohibitory clause, therefore, the applicant is not entitled for the grant bail in the instant case at this stage, I therefore, dismiss the instant bail application with the direction to the trial Court to atleast record the evidence of the complainant and eye-witness Altaf Hussain within a period of four weeks time from the receipt of this order, thereafter; applicant may file fresh bail application. If so desired.
10. ' Observations made hereinabove are of tentative nature and the trial court shall not be influenced by any such observation,