' The applicant seeks bail in Crime No,47 of 1998, registered under section 392/397/34, P.P.C., registered at Police Station, Baldia Town. Earlier, similar bail application has been dismissed under the impugned order, dated 21-4-1999 passed by Second Additional Sessions Judge, Karachi West.
2. Prosecution story in nutshell is that on 1-4-1998 at about 12-45 p.m. When the complainant along with his companions in a Suzuki Vehicle KB-3640 reached at Balidia No,5 Road 5-B, Opposite Lasi Para School, they were intercepted by two armed boys riding on black motorcycle. One of them pushed the complainant aside and slid behind the steering wheel of the vehicle and started driving it with one hand and pointed T.T. Pistol towards the complainant and his other partners holding it in another hand, and the other culprit followed them on a motorcycle. When they covered some distance, the complainant seeing 2 policemen standing in front of a gate of Bank was encouraged jabbed at the culprit driving the vehicle on which, he lost control of the vehicle and dashed against the gate of said Bank and Policemen managed to apprehend the culprit driving the Suzuki vehicle and recovered from him a T.T. Pistol. The other culprit however, managed to flee away. It is alleged that the apprehended culprit avoided to disclose name of his other companion. However, on the next date, during the course of interrogation, as is so disclosed by the learned State Counsel, the apprehended accused disclosed to the police the name of applicant co-accused.
3. Learned counsel for the applicant submitted that the applicant was arrested on 2-4-1998 and since then for over one year he is confined in jail till today without any progress made in the case so much as that after challan on 27-11-1998, no charge has been framed. On merits learned counsel contended that there is no admissible evidence available with the prosecution to connect him with the crime and it is only on the disclosure of the name of the applicant by co-accused, that he was arrested. Learned counsel submitted that the applicant has not been put to identification. He placed reliance on case-law reported as Pir Mazharul Haq v. The State 1992 PCr.LJ 1910, Mrs. Saeeda Ahsan v. Province of Punjab, 1992 M LD 1322 and Muhammad Asif v. The State, 1998 M LD 1549.
4. Besides above learned counsel submitted that learned trial Court has dismissed the bail application of the applicant under the impugned order relying on case reported as Rizwan Hussain v. The State, 1997 SCMR 131, which is not applicable to the case of the applicant and that the learned Trial Court has misconceived the facts of that case and applied the same and has dismissed his bail application.
5. Learned counsel for the State submitted that there is no evidence against the applicant excepting that his name was disclosed by the co-accused and that motorcycle was recovered from the applicant and for that also the co-accused Ejaz disclosed that it was same motorcycle which was used in commission of the alleged crime by him and the applicant. He confirmed that identification test of applicant as well as that of motorcycle allegedly recovered from him has not been conducted. He submitted that the delay in concluding trial is not attributable to the applicant or anybody acting on his behalf. On this point the impugned order is vividly clear. Learned State Counsel contended that the learned 'trial Court has mentioned in impugned order that it is correct that period of one year has passed away and trial of the applicant has not been concluded but this was because the accused Aijaz alias Chotto who was granted bail by the Judicial Magistrate against him is absconding.
Admittedly there is no evidence against the applicant excepting the statement of the co-accused disclosing his name as one of the culprits. He has not been put to identification test. The motorcycle allegedly recovered from the applicant has not been got identified and only co- accused has said before police that it was the same motorcycle which was used in the commission of the crime.
' In case reported as Pir Mazhar-ulHaq v. The State reported in 1992 PCr.LJ 1910, it is observed as follows:--- ' At this stage, we are not examining the merits and demerits of these confessions, lest it may prejudice the case of any of the parties, but in view of admitted position that presently, except abovementioned two pieces of evidence, no other evidence is available against applicant, we hold that in the absence of any other evidence available with the prosecution at this stage, except the confession of the co-accused on which evidence alone no conviction of the applicant can be sustained, there are no grounds to believe at present that the applicant is guilty of the offences for which he has been charged. It may be added that one of the co-accused namely, Ghulam Shah, who had given confession has admittedly been released on bail by the trial Court."
' In case of Muhammad Asif v. The State, reported as 1998 M LD 1549, while granting bail to the applicant my respectable brother Amanullah Abbasi, J., in a case registered under section 17(3) of the Offences Against Properties (Enforcement of Hudood) Ordinance, has observed as follows:--- ' So, if we omit this piece of evidence there is the fact that the name of applicant was disclosed by co-accused. This piece of evidence will have to be examined in the light of provision of Qanun-e- Shahadat. The learned Advocate for the applicant has relied on decisions reported in PLD 1996 Karachi p.534 and PLD 1991 FSC p.53. Their Lordships of Federal Shariat Court in paragraph 10 of the judgment have ruled as under:-- '10. In Islamic Criminal Law the confession of the 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'."
' This being the position of law. I grant bail to the applicant.
' In case reported as Rizwan Hussain v. The State 1997 SCMR 131, the facts and circumstances are distinguishable than the case of the applicant. In the afore-mentioned case Suzuki High Root snatched from the complainant was recovered from the applicant/accused on the next day of the commission of offence in an encounter with the police. In this case, applicant was arrested in the circumstances as are narrated hereinabove.
Admittedly, the applicant has remained in jail since 2-4-1998 and no progress in the case has been made in the trial for whatsoever reason which is not attributable to the applicant or anybody acting on his behalf. The learned State Counsel has also not opposed the grant of the bail to the applicant.
' Considering the facts and circumstances of the case, and case-law I grant bail to the applicant who shall be released on furnishing solvent surety in the sum of Rs,1,00,000 and P.R. Bond in the like amount.