WASEEM AHMED VS State, 2009 PTD-KARACHI-HIGH-COURT-SINDH 1303 (2008)

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/34---Bail, grant of---Only eye-witness, during her examination in the court, was not able to identify accused stating that they had changed their `hulias'; and that due to lapse of time she could not identify other accused present in the court---Said witness though had been produced as eye-witness of the incident, but she had not seen the persons, who had committed the murder of her grandfather, because at that particular moment she was not present in that room---Witness had stated that she just noticed three persons entering `Khankah' of her grand father; and thereafter she heard fire shots---None of the persons who at that particular time were present in `Khankah' had been produced as witness to confirm that accused was amongst those culprits who had committed murder of deceased---After recording examination-in-chief, said witness was not produced again for her cross-examination, as she was reported to have shifted to some unknown place---Prosecution, in circumstances, had not been able to make out a case for rejection, of bail application---In view of discrepancies appearing on record, non-production of eye-witness for the purpose of cross-examination and the way identification parade of accused was held, accused was entitled for the grant of bail--Accused was admitted to bail, in circumstances.

Aamir Mansoob Qureshi for Applicant.

Syed Muhammad Ali Mirza, A.A.-G.

ORDER

MRS. YASMIN ABBASEY, J.---Case of prosecution is that on 21-1-2001 at about 4-00 p.m. complainant received information that his father Syed Akhtar Imam Rizvi has been injured at his Khanka situated at his home. On enquiry his niece Sumera aged about 12 years informed him that just before the incident when she was coming in the lane towards deceased's house, she found three boys entering in Khanka. His niece entered from another door. As per complainant her niece informed him that just after her entering in house she heard 3/4 fire shots. All family rushed towards Khanka. They found complainant's father in injured condition. Blood was oozing from his body. On the basis of this report search for culprits was made.

On 2-5-2001 this applicant along with Tariq Shafiq was arrested in Crime No.65 of 2001. As applicant Waseem Ahmed was injured in that incident, he was admitted in the Abbasey Shaheed Hospital. During interrogation in Crime No.65 of 2001 both Tariq Shafiq and this applicant Waseem Ahmed confessed to have committed murder of Syed Akhtar Imran Qadri. On the basis of that admission formal arrest was made in the present case.

It is argued by the learned counsel for the applicant that as per complainants own information incident took place on 20-1-2001 and information too was received by him on the same at 4-00 p.m. but no reason of delay in lodging F.I.R. on 21-1-2001 at 0230 hours has been explained by complainant. He further contended that as per information of Mst. Sumera she found three boys entering in Khanka of his grandfather but except mentioning the clothes worn by them their description has not been disclosed by her to confirm their identity, if subsequently produced before her.

According to prosecution Mst. Sumera identified applicant Waseem Ahmed but that identification of Mst. Sumera as per her statement recorded on 3-2-2005 was in the ICU Ward of Abbasey Shaheed Hospital where applicant Waseem Ahmed was admitted. Though in challan submitted, prosecution had shown identification parade held by Judicial Magistrate No.II, Karachi but still that identification parade was held at Abbasey Shaheen Hospital. Neither memo. of identification parade has been placed on record nor Mst. Sumera in her statement on oath has disclosed that beside this applicant whether any other dummies were arranged in hospital for mixing upon this applicant among them.

Even otherwise, according to prosecution applicant was admitted in ICU Ward, which means he was in serious condition, therefore, holding of identification parade in such condition cannot be deemed to be a proper identification because a patient of ICU usually is not supposed to be in a condition to stand in row for identification. Besides, it was not possible, for the prosecution to have sufficient number of persons as dummies in the same condition of having injuries as that of applicant at that particular time. Therefore, identification parade as was said to be arranged was a sham play and was not in accordance to the rules prescribed for identification parade.

From perusal of statement of Mst. Sumera, who has been placed as only eye-witness, it is found that she also during her examination in Court was not able to identify this applicant stating that they have changed their `hulias' and that due to lapse of time she cannot identify the other accused present in Court beside Tariq. Although Mst. Sumera has been produced as eye-witness of the incident, but admittedly she had not seen the persons, who had committed the murder of her grandfather, because at that particular moment she was not present in that room. She just noticed three persons entering Khanka of his grandfather and thereafter, heard fire shots, none out of the persons who at that particular time were present in Khanka of deceased have been produced as witness to confirm that this applicant was amongst those culprits who had committed murder of Syed Akhtar Imam Qadri.

Further after recording examination- in-chief, Mst. Sumera was not produced again for her cross-examination, as she was reported to have shifted to some unknown place. In these circumstances, at the movement the prosecution has not been able to make out the case for rejection of this bail application.

In view of discrepancies appearing on record, non-production of Mst. Sumera for the purpose of cross-examination and the way identification parade of Waseem Ahmed was held, I am of the view that the applicant is entitled for the grant of bail.

These are the reasons of the short order, dated 17-3-2008, whereby bail application was allowed.

H.B,T./W-6/KBail granted.