1. ' The applicant/accused namely Muhammad Zahid son of Nooruddin is involved alongwith other co-accused in some seven cases of different Police Stations. This order will dispose of all the seven bail applications as the law involved in all these applications is identical. However, I will discuss the facts of each case separately.
2. ' One of the relevant fact which requires consideration is that the accused/applicant Zahid was initially arrested on 21-1-1994 alongwith two other co-accused on pointation of co-accused Hanif by New Karachi Police Station in F.I.R. No,28 of 1994 (Criminal Bail No,1243 of 1995). Subsequently, on 26-1-1994 his arrest was shown in six other cases. The identification parade for all the accused was held in all these seven cases on 29-1-1994. All the accused were produced on the same day i,e, 7th February, 1994 before the Magistrate, when it is alleged by the prosecution that all of them have confessed their guilt.
3. Criminal Bail Application No,1238 of 1995 (F.I.R. No,17 of 1994, Police Station Gulberg.
4. ' The complainant Muhammad Subhan Khan, who is Reservation Officer in P.I.A. Has lodged this F.I.R.
5. With Police Station Gulberg, District Central, Karachi on 6-1-1994 alleging therein that on the same day at about 16-45 hours when he returned from his office, the door of his house was opened by his son. The complainant saw a person present in his house with a pistol in his hand who asked him to come inside. The complainant was asked by this man to remain in one room where his other family members were also kept detained. It is further alleged that at about 18-00 hours the said person left the house after hearing horn of a car. The complainant has further alleged that afterwards he was told by his family members that some eight boys, about whom they were not able to disclose any description about their physique or appearance, have stolen Rs,90,000 cash, golden jewellery etc. Etc. On 7-2-1994 the prosecution has filed charge-sheet bearing No,26 of 1994 in the Court of Session Judge, Central, showing some eight persons including the applicant as accused.
6. ' On 29-1-1994 all the eight accused were produced before the Magistrate for identification.
7. According to the report of the learned Magistrate, some 25 dummies were mixed up with these accused persons. P.Ws. Subhan Khan, Muhammad Jaffer Khan and Abdul Rahim were not able to identify any of the accused. On 16-2-1994 all the accused were again produced before another Magistrate before whom they have made confession about committing several offences. No specific admission was made by the present accused/applicant about the commission of the offence as alleged in this F.I.R.
8. Criminal Bail Application No,1239 of 1995 (F.I.R. No,18 of 1994, Police Station Gulbahar.
9. ' On 12-1-1994 at about 22-00 hours the complainant Wali Zar Khan, who at the relevant time was serving as Cashier at Chowrangi Service Station has lodged F.I.R. With Gulbahar Police Station, District Central Karachi, alleging therein that on. The same day at about 21-35 hours four unknown accused persons in a car Charade white colour came to the petrol pump. According to the F.I.R.
10. Two persons, one wearing Shalwar Kamiz and the other pants and shirt, came to him with T.T.
11. Pistols. Another person was behind them who was having klashnikov. On the gun point they took away cash of Rs,6,000 and also snatched the official gun bearing No,2248 from the constable posted at petrol pump and went away. The complainant has claimed in the F.I.R. That he will be able to identify all the accused whenever they are produced before him. It is further alleged in the F.I.R. That all accused persons were Urdu speaking. On 8-2-1994, the prosecution filed charge-sheet bearing No,10 of 1994 before the Court of Sessions Judge, Central showing applicant Muhammad Zahid, Muhammad Hanif Senior and Muhammad Hanif Junior and other co-accused. On 29-1-1994, two accused including applicant Muhammad Zahid and Muhammad Hanif Senior were produced before the S.D.M. Nazimabad for identification test. According to the report of the learned Magistrate fifteen dummies were mixed up with these two accused. The prosecution witnesses namely Wali Zar Khan, H.C. Ghulam Shabbir, Resham Ali and Syed Imran were separately called who have identified both the accused. According to this report both the accused were identified by their appearance and not by the specific role played by them during the commission of the alleged offence. The police file shows that initially some five persons were implicated and arrested.
12. Out of them, two accused namely Zulfiqar Ali Bhutto son of Gohar Rehman and Riaz were not sent up for trial. It is strange to note that the third accused namely Muhammad Hanif Junior was not produced for the identification test and no explanation has been given in this regard Criminal Bail Application No,1240 of 1995 (F.I.R. No,18 of 1994, Police Station Gulberg.
13. ' The complainant of this F.I.R. Is one Abdul Wahab who is resident of House No,C-258/6 Federal B, Area, Karachi who, on 6-1-1994 at about 21-15 hours lodged F.I.R. With Police Station Gulberg under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 alleging therein that on the same day at about 18-15 hours he received information upon which he immediately rushed to his house where he saw all his household articles and properties lying scattered. He was told by his wife that at about 17-00 heurs three young boys aged about 22/23 years, armed with pistols entered their house and confined all the family members in a room and after searching the entire house they took away US $ 10,000, Pakistani rupees 13,000 cash, wrist watch and golden jewellery etc. Etc. According to this F.I.R. The family members of the complainant were not able to note the physical description and appearance of the three accused. On 7-2-1994 the prosecution filed charge-sheet bearing No,27 of 1994 in the Court of Sessions Judge, Central, Karachi, showing some eight persons including the applicant as accused persons. It is pertinent to note that the commission of offence is alleged against three persons in the F.I.R. While eight persons have been sent up for trial through the charge-sheet.
14. ' On 29-1-1994 at about 1-45 p.m. All the eight accused were produced before the Magistrate/Assistant Commissioner-III, Central Karachi for identification test. According to the report of the learned Magistrate some 25 dummies were mixed up with all the eight accused. P.W.
15. Abdul Wahab was not able to identify any of the accused. However, P.W. Mst. Qamar Wahab wife of Abdul Wahab has identified few of the accused but she was not able to identify the present applicant/accused Zahid. P.W. Mst. Zubaida Begum wife of Abdul Rauf was able to identify three of the accused including applicant Zahid. This report is silent on the question of specific roles played by each of the accused during commission of the alleged offence. On 7-2-1994 all the eight accused were produced before the Magistrate/A.C.III Central, Karachi, for recording their confessional statements. All the eight accused have confessed their guilt after which they were remanded to Central Prison, Karachi.
16. Criminal Bail Application No,1241 of 1995 (F.I.R. No,19 of 1994, Police Station Gulberg.
17. ' This complaint was lodged by one Muhammad Fasihullah Sharif resident of Bungalow No,C-432, Block No,6, F.B. Area, Karachi on 7-1-1994 at about 00-05 hours with Police Station Gulberg, District Central, Karachi alleging therein that on 6-1-1994 at about 15-45 hours, four young boys aged about 22/23 years armed with Pistols entered his house and on the gun point they searched the house and took away golden ornaments, prize bonds worth Rs,2 lacs, 1,200 US dollars, 400 Saudi Riyals and 12,000 Pakistani rupees. The complainant has given full description of all the four accused and went upto the extent of saying that one of them appeared to be Baloch by caste.
18. Police Station Gulberg filed charge-sheet on 7-2-1994 against the eight persons who are the same as of the earlier mentioned cases.
19. ' On 29-1-1994, all the eight accused were produced for identification test before the same Magistrate as of the earlier came. According to this identification report some 25 dummies were mixed up with eight accused. P.W. Fasihullah has identified four accused including the applicant/accused. P.W. Mst. Nighat Noor Jehan has identified three accused excluding present applicant Muhammad Zahid. P.W. Faisal Fasih has also identified three accused excluding applicant Zahid and P.W. Taj Muhammad has identified five accused including present applicant.
20. On 7-2-1994 all the eight accused were produced before the same Magistrate before whom they have confessed their guilt. Again in this case also the allegation in the F.I.R. Is against four persons while eight persons have been charged-sheeted by the concerned Police Station.
21. Criminal Bail Application No,1242 of 1995 (F.I.R. No,20 of 1994, Police Station Gulberg.
22. ' Complainant Nasir Waheed has lodged this F.I.R. With Police Station Gulberg alleging therein that he is residing with his family members at Bungalow No,C-359, Federal B, Area, Karachi. That on 6-1- 1994 at about 19-30 hours when he returned he was told by his father and brother-in-law that at about 17-00 hours his wife, who is a medical practitioner by profession went to see a patient at Bungalow No,558, Block-6, Federal B Area, Karachi belonging to Abdul Wahab (complainant of F.I.R.
23. No,18 of 1994, Police Station Gulberg). It is further alleged that one accused brought the wife of complainant from the house of Abdul Wahab at gun point. That they were followed by another accused. Both the accused entered the house of the complainant and confined his wife and mother in one room and searched the entire house. It is further alleged that they took away Defence Saving Certificates worth Rs,1,56,500, golden ornaments, cash Rs,20,000 in total etc. Etc. It is alleged that both the accused were wearing Shalwar Kamiz but the family members of the complainant were not able to note the description and appearance of the three accused. On 7-2- 1994 Police Station Gulberg submitted charge-sheet before the trial Court showing all the eight persons as accused.
24. ' On 29-1-1994 at about 2-35 p.m. All the eight accused were produced before the same Magistrate as of the earlier case for identification test. According to the identification test report some 25 dummies were mixed up with these eight accused P.W. Mst. Tazeem daughter of Nasir Waheed has identified only two accused excluding the present applicant Zahid. P.W. Husan Ara has also identified only two accused excluding the present applicant. On 7-2-1994 all the eight accused were produced before the learned A.C.M.III, Central, for recording confession. All the eight accused have confessed their guilt without specifically mentioning the crimes as alleged in these seven F.I.Rs, Criminal Bail Application No,1243 of 1995 (F.I.R. No,28 of 1994, Police Station New Karachi.
25. ' Complainant of this F.I.R. Is Inspector Pervaiz Akhtar, who, on 21-1-1994 was S.H.O. Police Station Gulberg Central, Karachi. According to this F.I.R. The complainant alongwith S.H.O. New Karachi, Syed Bahadur Ali and Aslam Hayat S.-I. Of Sharifabad Police Station alongwith members of other law enforcing agencies were investigating crime No,26 of 1994 under section 399/402/353/324, P.P.C. On the pointation of accused Hanif son of Rasheed who was in their custody they raided house bearing No,108/1, Sector 11-F, New Karachi. It is further alleged in the F.I.R. That the said house was surrounded by the police party. That the accused persons present in the house started firing from the windows. In return, the police party also fired in the air. That the police party also gave warning to the accused to cease fire and to surrender themselves. That the police party entered the house and found three persons duly armed with weapons. It is alleged that the present accused Zahid was having one T.T. Without licence in his hands at the time of his arrest. It is alleged that in presence of two Mashirs namely Anis Hyder son of Nasir Ali and Syed Sami Ahmed son of Syed Shafiq Ahmed all the weapons were recovered. It is further alleged in the F.I.R. That Zulfiqar, Yousuf, Riaz and Safir by taking advantage of the darkness made their escape good from the said house. On 2-2-1994 the prosecution filed charge-sheet showing five persons including present applicant as accused persons under arrest while three persons were shown in column No,2 with red ink as absconders.
26. ' In this case a consolidated memo. Of arrest and recovery was prepared by the Investigating Officer which has also been used in other cases. In this case neither the accused persons were produced nor any confession was recorded. Co-accused Safir Ahmed was granted bail by the trial Court on 24-2-1994 in the sum of Rs,25,000 with P.R. Bond of the like amount. Another co-accused namely Sabir Butt son of Safdar Butt was also granted bail by the learned Ilnd Additional Sessions Judge Central, Karachi on 5-7-1994 upon furnishing surety in the sum of Rs,15,000 and P.R. Bond of like amount. On 23-1-1995 learned trial Court granted bail to another co-accused Suleman alias Salloo son of Yaqub Ali upon furnishing surety in the sum of Rs,25,000 with P.R. Bond of the like amount on the ground that the other co-accused have been granted bail. On 17-8-1995 bail plea of the present applicant Zahid was rejected by the learned trial Court without considering the law laid down by the, Honourable Supreme Court in the case of Abdul Salam v. The State 1980 SCM R 142 where it was held that in the bail matters the Court of Session should maintain equality of treatment between persons placed in similar situation and identical circumstances. The learned counsel for the applicant has filed certified copies of all the three orders through which the said co-accused were granted bail.
27. Criminal Bail Application No,1244 of 1995 (F.I.R. No,529 of 1993, Police Station Kh. Ajmer Nagri.
28. ' The complainant of this F.I.R. Namely Yasin Khan has lodged this F.I.R. On 21-12-1993 at about 02-15 hours alleging therein that he is residing in the house bearing No,R-508, Sector 15-A/2 Buffer Zone, North Karachi alongwith three brothers and other family members. That on 20-12-1993 at about 8- 15 p.m. Three young boys aged about 20/25 years entered his house duly armed who were speaking Sindhi. They searched the house and took away golden ornaments, two tape recorders, amplifier, cash approximately Rs,6,000 prize bonds, motor-cycle etc. On 8-2-1994 Police Station Khawaja Ajmer Nagri filed charge-sheet before the trial Court showing present applicant alongwith Aslam Shahbaz as accused while accused Zulfiqar Ali was shown in column No,2 as absconder.
29. Accused Riaz alias Mangal was not sent up for trial.
30. ' According to the police file the accused were produced for identification test before the Magistrate. However, this report did not indicate the date and time as to when the identification parade was conducted nor it shows the designation of the learned Magistrate before whom the accused were produced. This report did not also indicate the facts as to how many dummies were mixed up, how and when the P.Ws. Were produced before the Magistrate for identification. P.Ws.
31. Yasin and Rais Khan were not able to identify the present applicant/accused.
32. ' I have heard Mr. Mumtaz Ali Khan Deshmukh, Advocate for the applicant and Mr. Azizur Rehman, Advocate appearing for the State. I have also perused the police files. According to the learned counsel for the applicant the name of the accused was not disclosed in the F.I.R. He further contended that all the seven cases are cases of no evidence. According to him the only piece of evidence available with the prosecution, is the so-called confession made allegedly by all the eight accused on 7-2-1994 which were recorded eleven days after the arrest of accused which according to the learned counsel are rarely accepted by the superior Courts. Mr. Azizur Rehman, learned counsel appearing for the State has vehemently opposed grant of all these bail applications on the grounds that the accused has voluntarily made confession before the Magistrate which is sufficient to sustain conviction. He also contended that at the pointation of accused persons certain recoveries were made which is another strong evidence to connect the accused with the alleged offence.
33. I have carefully considered the submissions of both the learned counsel. Mr. Mumtaz Ali Deshmukh has strenuously contended that since the accused was not named in the F.I.R., he is entitled to grant of bail. He has placed reliance on the case of Tariq Bashir and another v. The State 1994 PCr.LJ 1659 and the case of Muhammad Akhar v. The State 1994 PCr.LJ 1068. In these two reported cases the bail was granted to the applicants on the consideration of the ground, inter alia, that they were not named in the F.I.R. There were ether grounds which compelled the learned Judge to grant bail. In view of the facts of the present case as alleged by the prdsecution, it will be very strange to presume that the complainant should have given the names of burglers or dacoits. This ground may be available to an accused who may claim that he was previously known to the complainant but his name was not disclosed in the F.I.R. But in the instant case this ground is not available to the accused as none of the complainant has claimed that the accused was previously known to them.
34. ' The learned counsel for the applicant has rightly contended that since the so-called confession of the applicant/accused was recorded after a delay of eleven days, conviction is not sustainable on this sole ground. It is an admitted fact that the accused Zahid was arrested by Police Station New Karachi on 21-1-1994 in Crime No,28 of 1994 and was produced for recording of confession on 7-2- 1994, after a delay of nearly sixteen days. A possibility that the accused was shown to the prosecution witness earlier cannot be ruled out in these circumstances. (For reference see Zulfiqar Ai and another v. The State 1968 PCr.LJ 1976, Inayat and another v. The State 1975 PCr.LJ 1271, Bago alias Pathan and 3 others v. The State 1984 PCr.LJ 3229 and Habibur Rehman and another v. The State 1994 PCr.LJ 1773.
35. On the question of identification of accused during the identification test, it would be sufficient to observe that except by P.W. Zubaida in F.I.R. No,18 of 1994 of Police Station Gulberg and P.W. Ali Zar Khan in F.I.R. No,18 of 1994 of Police Station Gulbahar, the accused/applicant was not identified by any other prosecution witness. All these identification parades were conducted on the same day before the same Magistrate during the period 12-15 to 3-05 p.m. All these reports failed to indicate as to what role was assigned to the present applicant by the witnesses identifying him. In the case of Bago alias Pathan 1984 PCr.LJ 3229 a learned Single Judge of this Court Mr. Zaffar Hussain Mirza, J. (as his Lordship then was) granted bail to four applicants who were involved in the offences under section 307/394/397/34 read with section 13-D of West Pakistan Arms Ordinance, 1965 on the ground that they remained in police custody for over a period of 15 days before they were put to identification test, which, it was held, brings the case of the applicants within the purview of subsection (2) of section 497, Cr.P.C.
36. In some of the cases the complainants have alleged that there were other two, three or four accused but strangely and without any plausible explanation all the eight persons have been shown as accused. Their confessions were recorded before the same Magistrate on one and the same day. I have gone through the police papers and have found that the confessions of the entire accused are identical and similar in all the cases. It was also argued that the alleged confessions are vague and had not disclosed whether it has been made in respect of the offence as alleged by the prosecution through these Different F.I.Rs, Without discussing the merits of the case, I am satisfied, in view of the facts and law discussed hereinabove that the prosecution requires some more material to connect the present applicant/accused with the alleged offence and that this is a fit case of further inquiry. In the circumstances, the accused is granted bail in all the cases upon furnishing surety of Rs,50,000 each with P.R. Bonds of like amount to the satisfaction of the trial Courts. However, the observations made hereinabove are tentative in nature and will not affect the merits of the case during trial.