SHAH NAWAZ and 2 others vs THE STATE
This matter arises from a post-arrest bail application filed on behalf of three applicants booked for offences including dacoity and police encounter under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979 and sections 324, 337-H(ii) and 353 of the Pakistan Penal Code 1860. The core legal question concerns whether the applicants are entitled to post-arrest bail in view of the circumstances surrounding their identification test and the evidentiary value thereof. The Sindh High Court held that where accused persons were kept at the same police station to which the identifying complainant party belonged, and an unexplained delay occurred in conducting the identification test, the case against the applicants falls within the scope of further enquiry under criminal jurisprudence. Consequently, the bail application for the first applicant was dismissed as not pressed, while bail was granted to the remaining two applicants subject to furnishing surety bonds.
- Whether unexplained delay in holding an identification test and custody at the same police station as the complainant makes a case fit for further enquiry under section 497(2) of the Code of Criminal Procedure?
- Can bail be granted to accused persons when the sole piece of evidence against them is rendered doubtful due to procedural proximity with the identifying witnesses?
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 324, Pakistan Penal Code 1860
- Section 337-H(ii), Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
ORDER
1. ' Bail is sought in a case registered at Police Station Chak for an offence punishable under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979 and sections 324, 337- H(ii) & 353, P.P.C.
2. ' It is alleged that on 22-6-2003, a police party of Police Station Chak who were leading convey of Wagon and Coaster noticed seven unidentified persons on the side of road armed with fire-arms.
3. The police party took position and an encounter ensured but the culprits armed with Klashnikov turned around and controlled the complainant PC Bakhsh Ali and snatched the official Rifle, Belt, etc. From him. Other police men issued a challenge on which the culprits ran away. The present applicants were arrested on 5-8-2003 by Chak Police allegedly during another encounter wherein as per F.I.R. No.57 of 2003, the snatched official Rifle was secured from one of them namely Ghulam Ali. The identification test was held on 13-8-2003 through complainant and A.S.-I. Faraz while second identification test was held on 16-6-2003.
4. I have heard Mr. Jai Jai Veshno learned counsel for the applicant and Mr. Mushtaq Ahmed K ourejo learned State counsel. Mr. Jai Jai Veshno does not press the State bail plea on behalf of applicant Ghulan't Ali, while Mr. Kourejo has no objection to grant of bail to the rest in view of unexplained delay in holding the identification test.
5. Mr. Jai Jai Veshno contended that arrest was made by the police belonging to Police Station Chak and after eight days the identification test was held through the complainant party who also belongs to the same Police Station where the accused were kept for 8 days. This is the only piece of evidence against accused Shahnawaz and Muhammad Nawaz and I agree with Mr. Jai Jai Veshno and Mr. Kourejo that in such circumstances the case would require further enquiry. However, the bail plea of Ghulam Ali is not pressed therefore, without touching the merits of the allegations against the said applicant, his application is dismissed while other two namely Shahnawaz and Muhammad Nawaz are granted bail in the sum of Rs.50,000 each with one surety each and P.R.
6. Bond in the like amount to the satisfaction of the trial Court.