' SALAHUDDIN PANHWAR, J.--- Through instant Application, applicant seeks post-arrest bail in Crime No,72/2008 under Sections 302, 324 and 34, P.P.C. Lodged with Police Station Landhi, Karachi.
2. Precisely relevant facts of the case, as per prosecution, are that brother of complainant namely Abdul Rasheed along-with his son Raheel and Tifla was going towards Landhi No,4 when unknown culprits fired upon them, thereby brother of complainant Abdul Rasheed received multiple injuries and succumbed; during this incident, Raheel son of Abdul Rasheed also received injuries; During investigation instant case was recommended in A-Class, thereafter co-accused Arif Rizvi was arrested and identified by witness Siraj Khan; applicant was in jail, hence his identification parade was not conducted.
3. Learned counsel for applicant inter alia contends that no iota of evidence is available against the applicant/accused except statement of co-accused; extra judicial confession before Police is inadmissible.
4. Whereas learned A.P.G. Has contended that accused is involved in number of murder cases; accused was identified by the witnesses, hence he is not entitled for bail.
5. No doubt, as per complainant Muhammad Jawaid unknown culprits committed murder of Abdul Rasheed and caused injuries to Raheel (son of deceased) and even private witnesses did not name any person as culprit during investigation which resulted in disposal of the case under 'A' class which prima facie suggests that prosecution (complainant party) and police even avoided false nomination. The perusal of the record further shows that on the statement of one accused Syed Muhammad Arif Rizvi, arrested in some other FIR polke found him involved in instant crime besides the present applicant/accused. Accordingly, his identification test parade was conducted before the Magistrate and one witness Siraj Khan son of Nannay Khan identified him. Besides, the perusal of police file shows that police arrested the present applicant/accused from the Central Jail where he was detained in connection with FIR No,149/2006 uner section 302/ 34, P.P.C. Read with Section 7 ATA, FIR No,307/2009 under sections 302/324/ 34, P.P.C. Read with Section 7 ATA of P.S. Al-Falah and interrogated him there. During interrogation, accused Shabir Ahmed alias Farhan Mullah confessed before the police and he disclosed the complete scene of alleged incident besides his role in the same.
6. The applicant/accused has pleaded no mala fide or ill-will against the. Investigating officer and co-accused (if co-accused involved applicant in commission of offence) for false involvement of the applicant/accused who otherwise was already detained/confined in a capital charge. The manner whereby the prosecution dresses the applicant with status of 'accused' without any ill-will and confession, though extra judicial may be, prima facie make circumstances linking the applicant with commission of the offence.
' Further, I have no hesitation in saying that mere non-mentioning of one's name in FIR is not always sufficient to grant or decline him bail but the requirement of law is always that an accused charged with an offence, falling within meaning of Prohibitory Clause of Section 497(1), Cr.P.C., must bring his case within meaning of Section 497(2), Cr.P.C. And a failure thereof would be sufficient to deny exercise of discretionary jurisdiction within meaning of Section 497, Cr .P.C.
7. Besides, the above disclosed circumstances show that applicant/accused is involved in number of cases of heinous nature including 'murder' at public places even which fact itself may be considered to withhold exercise of discretionary jurisdiction particularly till examination of the eye- witnesses because such right (bail) is not of absolute in nature when one (accused) is charged with an offence falling within prohibitory clause. Reference can be made to the case of Muhammad Faiz alias Bhoora v. The State and another (2015 SCM R 655) wherein honourable Supreme Court declined bail while observing that:-
6. We would not like to comment upon the criminal cases registered against the petitioner, list of which has been produced before us by the learned Law Officer pertaining to different years. As per learned counsel for the petitioner, the petitioner was acquitted of the charge in these cases on the basis of compromise. We may observe that right of an accused to the concession of bail in a cognizable offence is not absolute. It is the discretion which a Court exercises by transferring the custody of an accused from Jail to the Court, which discretion is normally withheld if the accused abuses the concession by repeating the offence after the grant of bail. The criminal cases against the petitioner prior to the case in hand,. Prima facie, attracts the aforesaid established norms.'
8. In view of above, applicant has failed to make out his case. Accordingly this bail application is dismissed.
9. However, while parting it is necessary to mention that since in the instant matter there is only one eye-witness (injured) who prima facie deserve a right of giving evidence without any fear of harm which travels with name of a known criminal who may otherwise be innocent. Therefore, judicial proprietary demands examination of these witnesses as early as possible so as to ensure a balance of 'fair-trial' therefore, the trial Court is directed to record the statement of injured witness at least within least practicable period not more than two months. The applicant/ accused shall be entitled to repeat his bail plea before trial court if fresh grounds appear and at such time the trial court need not be influenced by this order.##TE#