MUMTAZ alias BHOLI and another's vs STATE
This is a criminal petition seeking post-arrest bail in a case registered under Sections 392 and 411 of the Pakistan Penal Code 1860. The core legal question involves determining whether the petitioners are entitled to bail given the circumstances of delayed reporting, lack of a test identification parade for unknown accused, and questionable joint recoveries. The Lahore High Court held that the absence of a test identification parade and unexplained delay in lodging the First Information Report brought the case of the petitioners within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, especially considering the statutory delay in the commencement of the trial while the accused remained incarcerated. The Court laid down the principle that failure to hold a test identification parade for previously unknown accused persons and the prima facie inadmissibility of joint recoveries from a third party's house strongly favor the grant of further inquiry bail.
- Does the failure to hold a test identification parade for unknown accused persons bring the case within the scope of further inquiry for the grant of bail?
- What is the evidentiary value of a joint recovery made from the house of a third party at the pointing out of multiple accused?
- Can an unexplained delay in reporting the crime to the police be a ground for granting post-arrest bail?
- Does prolonged incarceration without commencement of the trial justify releasing the accused on bail?
- Section 392, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Mumtaz alias Bholi and Nadir Ali petitioners seek their post arrest bail in Crime Report No, 57 dated 10.2.2003 under Sections 392/411 PPC, registered at police station Sardar Arif Wala, District Pakpattan Sharif.
2. According to FIR version, complainant alongwith Majid Masood and Ahmed Imran was on his way to Pakpattan Sharif from village Kochair on a Yamaha motorcycle bearing registration No, 5599-PK.
No sooner did they reach Chak No, 17/FB than all of a sudden four unknown persons carrying fire- arms stopped them. Accused armed with gum pronounced not to make noise otherwise they will be killed. One of them conducted search of the complainant and his companions. On gun point they snatched gold ornaments valuing Rs. 40,000/- alongwith cash amount of Rs. 715/- from the complainant. In the FIR, suspicion was raised against them.
3. During course of investigation applicants could be arrested by the police on 14.2.2003. The police obtained their physical remand and interrogated them.with regard to facts of the case. All the four during course of interrogation had shown their willingness to get the looted property recovered from house of Muhammad Ilyas. All the four accused led police party to house of Muhammad Ilyas on 18.2.2003 from where motorcycle and the looted property stood recovered.
4. Driven into this situation, petitioners approached learned Sessions Judge, Pakpattan Sharif for their post arrest bail who made over the same to a learned Additional Sessions Judge for its disposal in accordance with law. The said learned Additional Sessions Judge after fullest eyaluation of facts and circumstances of the case proceeded to dispose of their application as having been rejected through his order dated 25.11.2003 setting our reasons for refusal thereof.
Hence this petition.
5. Learned counsel for the petitioners vigorously argues that there is two days inordinate delay in reporting the matter to the police regarding which no explanation has been furnished in the First Information Report. Recovery is joint, which is not admissible in evidence. FIR is also silent with regard to features, complexions and conspicuous marks necessary for their identification.
Prosecution failed to establish identity of the accused by organizing a test identification parade and for:that reason their case falls within the ambit of further inquiry.
6. Learned counsel for the State submits that petitioners have chequered record and they are not entitled to the grant of bail.
7. Both the sides have been heard at length. Admittedly recoveries were made from the house of Muhammad Ilyas and petitioners do not live with him. What evidentiary value is to be attached to joint recovery is a question, which would fall for determination before the trial Court after recording of some material evidence in the case. Accused were'not previously known to the complainant and witnesses. How they came to know their names subsequently is also not known. There is delay of two days in reporting the matter to the police. Had the complainant and others known the petitioners and others then complainant would not have delayed reporting of the matter to the police. It was imperative upon the Investigating Officer to hold a test identification parade to fix identity of the culprits. Because of non-holding of test identification prade case of the petitioners calls for a further probe. Reference may advantageously be made to 2002 SCM R 1304. Petitioners are behind the bars for the last about fourteen months and so far not a single witness has been recorded.
8. For all theses reasons I am inclined to allow bail to the petitioners. Accordingly by accepting this petition I order release of the petitioners on bail subject to their furnishing bail bonds in the sum of Rs. 1,00,000/- (one lac) each with two sureties each in the like amount to the satisfaction of trial Court.
Cited by 1 case
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