1. ' The applicant seeks bail in a murder case registered at Police Station Gulzar-e-Hijri, District Malir, the story of which is as under:-- ' On 9-12-1997 at 9-15 a.m. Sub-Inspector, Muhammad Ashraf received a telephonic message from Head Constable Sadiq of Police Station New Karachi that a dead body of an unknown person was lying near Ayub Goth. After receipt of this information S.-I., Muhammad Ashraf and A.S.-I. Raja Abdul Razzaque left for the pointed place after the aforesaid information was recorded as No,16 of the same date in the station diary.
2. ' It is contended in the F.I.R. That S.-I. Muhammad Ashraf along with A.S.-I. Raja Abdul Razzaque reached the ground of Ashraf Memorial Society near Ayub Goth, Gulzar-e-Hijri, Karachi along with the above said station diary report and it is stated that on the potation of Haji Abbas who was present there, secured the dead body and proceeded with action under section 174, Cr.P.C. And sent dead body through Edhi Ambulance to Abbasi Shaheed Hospital for post-mortem examination and report. The post-mortem examination was conducted by Dr. Kazmi and the report forwarded to the police which revealed that the deceased was murdered during night time between 8th and 9th of December, 1997 with fire-arm. Accordingly Sub-Inspector, Muhammad Ashraf after getting post-mortem report of the dead body came back to the police station and lodged F.I.R. Under section 302, P.P.C. Against some unknown accused persons.
3. ' Later on the deceased came to be known and identified as Muhammad Nasir through his father- in-law namely Muhammad Anwer. It also came in the notice of the police that Muhammad Nazeer brother of deceased Muhammad Nasir had also moved an application to the higher authorities against the applicant being responsible for the murder of Muhammad Nasir.
4. ' Police during the investigation of the case besides other things recorded statement of Mst. Irshad Bibi wife of the applicant/accused Muhammad Javaid on 27-12-1997 and also got her 164, Cr.P.C.
5. Statement recorded before a Magistrate on 1-1-1998. The motive of the offence disclosed later was to the effect that earlier on 8-12-1997 the applicant/accused Muhammad Javaid had seen his wife Mst. Irshad Bibi in a naked position with the deceased Muhammad Nasir who was "Humzulf" of the applicant. It is also one of the pieces in the prosecution evidence that after the murder of Muhammad Nasir the applicant/accused had disclosed this fact to his wife Mst. Irshad Bibi, the most important prosecution witness in this case. At the conclusion of investigation the police sent up the accused/applicant through a challan for an offence under section 302, P.P.C.
6. ' The case is presently pending trial against the applicant before the Court of learned Sessions Judge, Malir, who declined bail to the applicant vide his order, dated 29-5-1998.
7. ' I have heard Mr. Sardar Muhammad Ishaque learned counsel for the applicant and also Mr. Habibur Rasheed, Advocate appearing for the State.
8. ' The learned counsel for the applicant had laid stress on various grounds most important ones of them are that there is not a single eye-witness in this ease, the time of the incident is not known, the F.I.R. Does not name any person as accused of the murder of Muhammad Nasir and further that nothing has been secured from the possession of the applicant.
9. ' Elaborating the aforesaid points in detail the learned counsel has emphasized that though prosecution alleges that the applicant had disclosed to his wife P.W. Mst. Irshad Bibi about having murdered Muhammad Nasir soon after the incident but Mst. Irshad Bibi kept mum and did not disclose this fact to any one till she was examined by police on 27-12-1997, 19 days after the incident. He has contended that 164, Cr.P.C. Statement of P.W. Mst. Irshad Bibi was not recorded earlier than 1-1-1998 and there is no reasonable explanation coming up from the prosecution side for such delayed examination of Mst. Irshad Bibi before police as well as before the Magistrate. The learned counsel has further stated that 164, Cr.P.C. Statement of a prosecution witness can be used as a substantial piece of evidence when it is recorded under the provision of 265-J, Cr.P.C. Which requires that before recording of statement by a Magistrate the accused has to be present in Court and he has to be given a prior notice and an opportunity to cross-examine the witness. Non- compliance of which would make the statement of a P.W. Unworthy of reliance. He has placed reliance on PLD 1982 Kar.
10. 975.
11. ' The learned counsel has lastly contended that the most important P.W. And the sole star-witness of the prosecution namely Mst. Irshad Bibi has exonerated the applicant from all allegations leveled against him, in her affidavit filed before trial Court. She has stated that the applicant was arrested by Digree Police on 22-12-1997 and Gulzar-e-Hijri Police reached at Digree and took the applicant away to Karachi on 25-12-1997 along with her. She has also stated that her statement before Magistrate was the result of duress, coercion and maltreatment by police and that she and her husband/applicant remained at Digree Town of Mirpur Khas District till 25-12-1997. The contents of the affidavit filed by Mst. Shahnaz wife of deceased Muhammad Nasir and Muhammad Anwer father-in-law of the deceased in the Court of learned Sessions Judge, Malir are also to the same effect and they have completely exonerated the applicant/accused from the charges levelled against him by prosecution.
12. ' Mr. Sardar Muhammad Ishaque the learned counsel appearing for the applicant has placed reliance on 1991 SCMR page 111 wherein bail was granted to the applicant on the basis of affidavit of P.W. Who did not implicate the accused. The learned counsel has further placed reliance on 1997 Cr.LJ page 569, 1986 Cr.LJ page 1056 (sic), PLD 1972 SC page 277 and 1982 SCMR page 153 in support of his contentions.
13. ' Mr. Habibur Rasheed learned Advocate appearing for the State has not controverted any of the assertions made by the learned counsel for the applicant and in view of the evidence of prosecution and the case-law cited above, conceded to the grant of bail. He has very frankly conceded that since P.W. Irshad Bibi does not support prosecution, then there remains no other substantial piece of evidence sufficient to withhold bail of the applicant.
14. I have heard quite at length, the learned counsel appearing for applicant as well as for the State.
15. There is no denial of the fact that the deceased Muhammad Nasir was done to death during night time and there is not a single eye-witness to speak about the incident. The prosecution has relied upon extra-judicial confession, evidence of P.W. Mst. Irshad Bibi, pointation of place of incident to police by the applicant and the motive of "Ghariat".
16. ' It has not been denied that P.W. Mst. Irshad Bibi did not disclose what she was allegedly informed by the applicant and she kept quiet for 19 days till she was examined by police on 27-12-1997. There is no reason for her delayed 164, Cr.P.C. Statement which was recorded on 1-1-1998. Pointing out place of Wardat by the applicant in presence of police Mashirs does not appear to be convincing factor when in fact the police had visited the place of Wardat 2 or 3 days before such pointation by the applicant. On all the above pieces of prosecution evidence there is statement of P.W. Mst.
17. Irshad Bibi alone. Even on motive there is none to speak except her.
18. ' The fact remains that the most important P.W. In the entire prosecution case namely Mst. Irshad Bibi is not ready to support the prosecution and with her statement through her affidavit, filed in the trial Court the prosecution evidence, stands to a considerable extent shaken and shattered.
19. ' In view of the above circumstances and the citations relied upon, I am fortified in my mind that there are no reasonable grounds to believe that the applicant is guilty of the offence with which he has been charged and, therefore, I am of the view that the case against applicant calls for further inquiry into the guilt of the applicant as envisaged under section 497(2), Cr.P.C. Bail was granted to the applicant by a short order, dated 13-7-1998 and these are the reasons for the same.
20. ' The observations made in this order are tentative in nature and same shall not prejudice the case of the parties.