1. ' The facts leading to present application for bail are that applicant/accused Sabir Hussain is facing trial in Sessions Case No,497 of 1998, before learned Sessions Judge, Karachi (East), arising out of F.I.R. No, 139 of 1998 dated 22-4-1998 of Police Station Korangi, Karachi (East) under sections 307, 302, 337-A, 109, 34, P.P.C. Read with section 10(3) of Offences of Zina (Enforcement of Hudood)
2. Ordinance, 1979. The contents of F.I.R. Are reproduced herein below: - "The statement of complainant was recorded at spot on 22-4-1998 at 3-00 hours for incorporating the same in 154 Cr.P.C. Book. The complainant Murshid son of Abdul Harmed, by cast Yousufzai resident of House No, G-662, Karachi No, 4, aged about 70 years on inquiry disclosed that I am residing on aforesaid address and is labourer. Tonight I was sleeping in my house with family members when at about 2-30 a.m. Accused (1) Mujeeb, (2) Aslam, (3) Mustafa (4) Rizwan duly armed with T.T. Entered in my house. They started beating. They dragged me and my wife Mst.
3. Zareena aged about 50 years and brought us out of the house. In the street accused Sabir, Sardar and Mumtaz were standing. At some distance they thrown me in the Nala and too:- away my wife. I with great difficulty came out of the sewerage Nala. I searched for my wife and found her dead body by the side of Government Girls Primary School graveyard road. She had fire-arm injury on the head. Aforesaid accused at the instance of accused Bilo with whom I have dispute over the house have murdered my wife Zarina with fire-arm and thrown me in Sewerage Nala. I report. Legal action may be taken. I have heard my statement it is correctly recorded".
4. ' Applicant/accused applied for bail before the trial Court but his bail plea was refused by impugned order dated 10-8-1998.
5. ' I have heard Mr. Anwar Hussain, learned counsel for the applicant/accused and Mr. Muhammad Ismail Memon, learned counsel for the State. Latter has frankly conceded to the grant of bail. I have also perused the material placed on record.
6. The F.I.R. Shows that applicant/accused was standing in the street at the time of the alleged incident. He was empty handed and no overt act whatsoever has been ascribed to him. Learned State counsel has further confirmed that in 161 and 164 Cr. P.C. Statements of prosecution witnesses also no role has been ascribed to the applicant/accused except that he was present empty handed in the street at that juncture. In the present case admittedly hostility was existing between the parties.
7. The patient card of Karachi Tuberculosis. Association Children T.B., Hospital and Chest Clinic.
8. Karachi pertaining to applicant/ accused reveals that applicant/accused is patient of Tuberculosis. Moreover complainant moved an application before the trial Court wherein he has completely exonerated the applicant/ accused from his culpability in the commission of offence.
9. The relevant para from the certified true copy of application filed in support of present bail application is reproduced herein below: - "So it is prayed that only (1) Sabir son of Zakir Hussain and (3) Baloo son of Abdul Hameed Khan excepting other all accused, may kindly be released as I am .Taking back my case against (1) Sabir son of Zakir Hussain and (2) 13allo son of Abdul Hameed Khan in my full sense and without any pressure as they both persons are innocent in the case and this statement is on my oath".
10. 'Co-accused Mumtaz ul Hassan was granted bail in above matter by this Court on 2-7-1998 vide Cr.B.A. No, 527/98, therefore on the rule of consistency bail plea of applicant/accused also, merits consideration.
11. ' In the case of Abdul Aziz v. The State (1997 PCr. Ii 862), Muhammad Haroon v. The State (1994 SCMR 216) and Munir Ahmed v. The State (1997 SCM R 445) accused were granted bail on the ground that no overt act was ascribed to them.
12. Consequently, the case of applicant/accused necessitates further inquiry as contemplated under section 497(2) Cr.P.C. And he is entitled to bail.
13. ' By my short order dated 7-9-1998 I had granted bail and hereinabove are the reasons of the said order.