This bail application has been presented on behalf of Mohammad Nadir son of Mohammad Alam who is facing trial for offence under section 302/ 34 P.P.C. Vide Crime No. 350/89 of Police Station Pak Colony, Karachi before the IInd Additional Sessions Judge, Karachi-West.
2. The prosecution case, as per F.I.R. Lodged by Constable Anwarul Haq on 23rd October, 1989 at 11- 45 a.m. Is that he was deputed to collect police file of case of Crime Nos. 329 and 330 of 1989 under sections 147, 148, 307 P.P.C from the Court of Sessions. He went to the Sessions Court on the motorcycle of Constable Wilayat Hussain. The motorcycle was driven by Constable Wilayat Hussain, and the complainant was sitting behind him. When they reached the main road and took a turn towards Old Golimar Chowrangi, one motorcycle which did not have any number plate and on which three persons, namely, Mohammad Nadir son of Mohammad Alan, Muhammad Rafique son of Noor Mohammad and Saleem son of Bahadur Khan were sitting passed by. Wilayat Hussain told the complainant that the persons sitting on the motorcycle were accused in. The bomb blast case, and they were after his life. When at about 8-30 a.m. They reached near Rexer Lines Bridge, all the three accused Mohammad Nadir, Muhammad Rafique and Muhammad Saleem stopped their motorcycle. All the three accused took out the pistols and saying to Wilayat Hussain that he will not be spared started firing at him. Wilayat Hussain fell down injured. On account of the firing and because of the complainant's cries, the traffic stopped, but the three accused made their escape good on their motorcycle. Wilayat Hussain sustained injuries on his leg and left side of his hip. He, the complainant, took the injured Wilayat Hussain to Civil Hospital in taxi, where he succumbed to injuries in Surgical Ward No.2.
3. After hearing the arguments of Mr. Ashraf Ali Butt, Advocate for the applicant and Mr. Shaukat H.
Zubedi, learned AA: G. For the State and perusal of the police record, I strongly feel that it is difficult to say at this stage that there exist, reasonable grounds for believing that the applicant is guilty of offence of murdering the deceased above named, an offence which is punishable with death or transportation of life, notwithstanding the fact that of appearance of his name in the F.I.R. And the subsequent role of firing, alongwith the co-accused at the deceased, attributed to him is mentioned therein. The complainant has not stated that he knew the accused prior to the incident intimately. The learned trial Court also in, its order rejecting the bail application has clearly observed: "it appears from the statement of the complainant that he had seen the applicant alongwith co-accused on the motorcycle and their names -were disclosed to him by the deceased just prior to the incident". No identification test was held, in the instant case. The learned trial Court, however, did not attach any importance to this omission on the part of the prosecution in view of the fact that "the names of the applicant and the other accused persons were disclosed to the complainant prior to the occurrence". There was thus, in the opinion of the learned trial Court, no necessity of holding the" identification parade. I am afraid, I cannot persuade myself to concur with the view of the learned trial Judge. The counsel for the applicant also invited my attention to the attendance certificate, dated 29-10-1989, issued under the signature of Senior Accounts Officer, Karachi Metropolitan Corporation, to the effect that Muhammad Nadir, Clerk, Pensions Section, Finance Department K.M.C. Attended office from 16-9-1989 to 24-10-1989 with half day leave in the morning of 22-10-1989. I am not prepared to accept this certificate, which has, for the first time, been produced alongwith this bail application although, it was purported to have been issued on 29-10-1989 prior to the making of the bail application before the learned trial Court. The learned counsel for the applicant as well as the learned AA.-G. Also contended that the prosecution version is belied by the medical certificate inasmuch as it shows that the deceased has sustained the injuries by gunshot and not by revolver. The learned A.A.-G. Further contended that the firing was alleged to have been done from the front side; whereas the deceased had sustained injuries on the back side of the chest. He also urged that the complainant version also appears to be false as he (the complainant) although sitting on motorcycle had not sustained any injury. I do not propose to enter into the discussion on merits of the prosecution evidence at this stage. However, I am convinced that the failure of the prosecution to hold the identification parade has rendered it to be a case of further inquiry into the guilty of the applicant. I may further add here that, to me, the possibility of insertion of the names of all the three accused with their parentage in the F.I.R. On the basis of the record of bomb blast case, to which a mention had been made by the deceased to the complainant, cannot also completely be excluded.
4. I, therefore, order that applicant be enlarged on bail subject to his furnishing one surety in the sum of Rs.50,000 with P.R. Bond in the like amount to the satisfaction of the learned trial Court.
5. Before parting with the case I may, by way of abundant caution, mention that the learned trial Judge shall not be influenced by any of the observations tentatively made in this order, while deciding the case on merits.
6. The above are the reasons for the short order, dated 22-7-1990.