' Accused Muhammad Nisar is facing trial alongwith co-accused Saleem (who has been shown as an absconder) before the Court of VIIth Additional Sessions Judge, Karachi (West) in offences under section 302/34, P.P.C. Arising out of F.I.R. No, 43 of 1996, Police Station Model Colony, Karachi.
2. The brief facts leading to this bail application as mentioned in the above F.I.R, are that one Muhammad Sadiq son of Abdul Rauf, lodged F.I.R. On 22-4-1996 at about 1530 hours at the abovementioned police station, alleging therein that on 20-4-1996 at about 4.00 p.m his father was standing outside his house when three young persons duly armed came there and asked his father to give whatever he had in his possession, which was refused by his father Abdul Rauf; that this led to scuffle between Abdul Rauf and one of the culprit, who was, subsequently, seen by the mother of the complainant, namely, Mst. Meraj Bibi who is the only eye-witness in this case. It is further alleged in the F.I.R that during this scuffle one of the accused who was caught by the father of the complainant, fired with his pistol and also struck Abdul Rauf with the butt of his pistol; as a result of these injuries, Abdul Rauf succumbed to death and the F.I.R was lodged after his death and nearly after a delay of 48 hours. The prosecution has filed challan/charge-sheet in the Trial Court whereafter charge was framed and the case is fixed for recording of prosecution evidence. But so far, no witness has been produced.
3. I have heard Mr. Nayyar Ziauddin, Advocate, for the applicant/accused and Mr. Muhammad Ismail Memon, Advocate, for the State. I have also perused the police papers. Few of the grounds raised by Mr. Nayyar, are that the present accused was of the age of 15 years when the alleged incident took place; that no recovery was made after the arrest of present applicant; that no specific role has been assigned towards the present accused/applicant either in the F.I.R or in the statements of the witnesses recorded under section 161, Cr. P.C; that there is an unexplained delay of 48 hours in the F.I.R. Mr M. Ismail Memon, has opposed this bail application on the ground that accused Muhammad Nisar was spotted by the only eye-witness Mst. Meraj Bibi and that the present accused was arrested on her pointation. It was further argued by the learned State counsel that the present applicant was also identified by Mst. Meraj Bibi and by the complainant Muhammad Sadiq in the identification parade which was held on 5-1-1997. It was vehemently contended that there is sufficient material available with the prosecution to connect the present applicant with the alleged offence. Admittedly, present accused was arrested on 31-12-1996 and was produced before the Magistrate for identification parade on 5-1-1997, after a delay of nearly six days. I have examined the report of Magistrate who has conducted this identification test. It is in the shape of Mashirnama without specifying other necessary details as required by the law. Both the learned counsel have admitted that this Mashirnama is not in accordance with the legal provision as a report is to be submitted on a prescribed pro forma by the concerned Magistrate after holding of an identification test. In this report the Magistrate has only disclosed that P.W. Mst.
Meraj Bibi and P.W. Muhammad Sadiq have identified the accused by saying that "he is the same person". No role was assigned by these witnesses to the present applicant. In this report it is not mentioned that how many dummies were mixed up with the accused; by whom and at what time this accused was produced before the said Magistrate. According to learned counsel for the applicant such identification has no evidentiary value. He has placed reliance on the cases Khadim Hussain v. The State (1985 SCM R 721) Mehmood Ahmad and 3 others v. The State and another (1985 SCM R 127) and Muhammad Rizwan v. The State and another (1998 PCr.LJ 746).
4. It is settled law that the identification of an accused in the identification parade without attributing to him the role which he has played in the alleged crime is of no evidentiary value. It is also settled that in case of considerable delay in conducting an identification test the possibility that the accused may . Have been shown to the prosecution witnesses cannot be ruled out. I would not like to comment further on this aspect of the prosecution case but would like to observe that when the identification test was not done in a manner as prescribed y the law and when there is no other sufficient material with the prosecution to connect an accused with the alleged offence, it may be considered to be ,a good around for granting bail.
5. It will not be proper at this stage to discuss in detail the material placed before this Court by the prosecution but its perusal does indicate that the only Elegation against the present applicant is that he was seen running from the place of Wardat alongwith other co-accused who has now been shown by the prosecution to be Saleem, against whom its alleged that he was the accused who fired at the deceased. Statement of Mst. Meraj Bibi under section 161, Cr. P.0 was recorded on 18-2-1997, wherein she has alleged the role of running away from the place of incident against the present accused as mentioned above. Today, it is now more than 2 years when the accused was arrested but the recording of the evidence has not yet commenced. It is pointed out that the charge was framed on 27-2-1998. The prosecution witnesses are not coming forward to give evidence despite service of notice. All these facts were not controverted by the counsel for the State., It is again not disputed that present accused was also examined by a radiologist who, vide his report dated 20-11-1997 opined that the accused Muhammad Nisar son of Muhammad Bashir was of the age of 15 years and 6 months on the day of examination. Thus, it can be safely presumed that on the date of alleged incident i.e 20-4-1996, the sent accused was below the age of 15 years. Such certificate was filed before the Trial Court and its certified true copy has been filed with the instant bail application. These facts were not considered by the learned Trial Court. All these circumstances lead me to hold that it is a fit case of further inquiry and that the applicant is entitled for bail pending trial.
6. As a result of the avove discussion, this bail application was accepted through a short order on 1-1-1999 and the applicant Muhammad Nisar was ordered to be released on bail upon furnishing one .Solvent surety in a sum of Rs,2 Lacs, (rupees two lacs) with P.R. Bond of like amount to the satisfaction of the Trial Court. Above are the reasons for the said short order.