1. The F.I.R. In this case was registered on 1-2-1993 for offences under section 17(3), Enforcement of Hudood Ordinance. The complainant in this case is Manager, Shaikh Muhammad Shafiq. No accused is named in. The F.I.R. Subsequently two accused Mushtaq and Tahir were arrested and some case property including cash and Prize, Bonds were recovered from them. The case was challenged in which four persons were shown as absconders namely Shujahat Hussain, Rafiqullha, Sado Khan and Habibullah. The address of Sado Khan is shown to be village of District Kohat.
2. The learned Advocate for the applicant has requested for bail on the ground that the present applicant Syed Bahadur Hussain is a Constable in Excise and Taxation Department. On 6-8-1995 he was arrested from his office but no intimation was given to any officer of his department. He refers to letter of Assistant Excise and Taxation Officer dated 31-8-1995 addressed to Incharge Special Anti-Narcotic Team wherein this fact is mentioned. The applicant has been arrested only because he belongs to the same village which is believed to be village of absconding accused Sado Khan.
3. There is no other evidence against him. There is no recovery from him. He was not subjected to identification test and even Sado Khan has been involved because co-accused named him. He relies on decisions reported in PLD 1991 Federal Shariat Court page 53 wherein it has been ruled that in Islamic Criminal Law the confession of accused against the co-accused is not acceptable and if there is no other proof against him, he will not be punished on the said confession.
4. If the learned State Counsel submits that he has the police papers but no-where the name of applicant Syed Bahadur Hussain is mentioned. He also submits that there is no recovery from him and his particulars are -also not mentioned in the F.I.R. He concedes that it is a case for bail.
5. The leaned IVth Additional Sessions Judge, South, Karachi vide rejecting the bail of applicant on 12- 9-1995 has mentioned as under:---- "I have considered the submissions of both the counsel. The investigating officer is not an eye- witness of this case. At the time of remanding the accused on 17-8-1995 I had enquired from the applicant/accused and it was transpired that the address of the applicant/accused as mentioned in the charge-sheet and as stated by the accused do match. The eye-witnesses of this case are Manager and bank employees. Some of them have already been examined in this case and remaining are to be examined. After the arrest of present applicant/accused those witnesses are to be recalled by virtue of amendment in the charge. These witnesses are very well-available in the same bank so I am of the view that this bail application is premature until the eye-witnesses are examined, who are in a position to identify the present applicant/accused. Accordingly the bail, application is dismissed. "
6. How Sado Khan and Syed Bahadur Hussain the present applicant are treated as, same person is not known. There is no evidence of identification against the applicant and there is no recovery of any property from him. He has been arrested after more than 2-1/2 years of the incident but the evidence against him is lacking. It will remain open for the trial Judge to cancel his bail in case the Manager and other employees of Bank identified him. But for the present his case requires further enquiry. I, therefore, grant him bail subject to furnishing of surety in the sum of Rs.50,000 with P.R Bond in the like amount to the satisfaction of the trial Court.