1. ' Applicant Zahid Ali, who is accused in Crime No,98/91 registered on 26-5-1991 at Police Station Saeedabad under sections 147, 148, 149, 307 and 302 of P.P.C., has approached this Court for bail, after his such application, moved in the Court of IInd Additional Sessions Judge (West), Karachi, is dismissed on 16-12-1992.
2. ' The facts as given by the complainant Muhammad Tahir in the F.I.R. Are that he is a Chowkidar at Nai Abadi, Saeedabad. On 26-5-1991 at 1-00 a.m. He and Fateh Shoaib alias Halakoo, Noor Muhammad alias Mama and Abdul Ghafoor were sitting on a cot in front of Iqbal Pan House. At that time 10 - 12 boys having Dandas in their hands came from the hydrant side and asked about Tahir (complainant). One of those boys caused a Danda blow to complainant and when he was held Alp, the other boys following him with muffled faces opened firing. Fateh Shoaib came near the complainant to rescue him but the assailants directed every one to keep away as they wanted to settle the account with Tahir. They then attacked using bottles, Chhuris and Dandas. Fateh Shoaib, who had received injuries, died at the spot while complainant sustained Danda blows on head and hip. It is also in the F.I.R. That about 3-4 days prior to the incident one Muhammad Haneef had a dispute with complainant Tahir and he was warned by one Muhammad Haneef to be careful. It is also stated that the assailants were hired by Muhammad Haneef so as to murder the complainant.
3. ' It is contended by Mr. Aijaz Ali, learned Advocate for the applicant, that the applicant was arrested on 3-10-1992 after about 17 months of the incident but the identification parade was held on 11-10- 1992 through complainant, Muhammad Nisar and Hafeezullah. In such test, even if applicant is picked out, the same would be of no consequence as Muhammad Nisar and Hafeezullah were not present at the Wardat and had no occasion to see the assailants. It is further contended that neither the description of applicant is given in the F.I.R. Nor he is shown to have caused fatal blow to the deceased Fateh Shoaib or injuries to complainant Tahir. The last contention of the learned Advocate is that admittedly all assailants were armed with Dandas but the injury on the person of deceased Fateh Shoaib is caused by sharp cutting weapon. These facts, according to the learned Advocate, make the case of the applicant as of further enquiry.
4. ' Mr. Abdul Hakeem H. Bijarani, A.A.-G. Has opposed the grant of bail and has contended that although not named in the F.I.R. The applicant was correctly picked out in identification parade and no animus is shown against the police for the wrongful involvement of applicant in the case.
5. ' I have heard the learned counsel at length and perused the record. - The only two persons present alongwith the complainant besides deceased Fateh Shoaib were Noor Muhammad and Abdul Ghafoor. They were not called at the time of identification test held on 11-10-1992 to identify if the applicant was one of the culprits. The two witnesses Muhammad Nisar and Hafeezullah were actually not present when the incident took place yet applicant has been put to identification test through these witnesses. The reason for that could not be given by the learned AA.-G.
6. ' The arrest of the applicant is after more than 17 months of the occurrence but once arrested, the identification parade should have been arranged immediately but in this case the same is held on 11-10-1992 and the reason for the delay also could not be given by the learned State counsel. There is another important aspect of the case to which also I would like to advert in this order. According to the F.I.R. One Haneef has had a quarrel with the complainant 3 or 4 days prior to this incident and said Haneef had warned complainant Tahir to remain careful. This Haneef is not shown accused in this case. The learned AA.-G. Was asked to state if there was any reason for the police to do so but he fairly conceded that nothing could be found out from the I police papers for such lapse on the part of the investigating agency.
7. ' For the foregoing reasons, in my view, the case of the applicant is of further enquiry and I am inclined to grant him bail. He shall be released on C bail on furnishing one surety in the sum of Rs,1,00,000 (Rupees one lac only) and P.R. Bond in the like amount to the satisfaction of the trial Court.