ZULFIQAR vs THE STATE
This is a criminal bail application filed by the accused Zulfiqar before the Sindh High Court seeking post-arrest bail in a case concerning robbery and recovery of a stolen motorcycle and a pistol. The core legal question revolves around whether post-arrest bail should be granted to the accused when he was allegedly apprehended shortly after the crime in possession of the robbed property and weapon, despite contentions regarding the non-compliance of section 103 of the Code of Criminal Procedure 1898 and the absence of an identification test. The court dismissed the bail application, holding that the prompt recovery of the robbed motorcycle within an hour of the incident furnishes reasonable grounds to believe the accused is connected to the offence. The court established that procedural lapses by the investigating officer, such as failing to conduct an identification test or non-compliance with section 103, do not negate other strong prima facie material evidence at the bail stage, and case-law concerning deep appreciation of evidence is inapplicable to bail matters.
- Does the non-compliance of section 103 of the Code of Criminal Procedure 1898 automatically entitle an accused to post-arrest bail?
- Whether the absence of an identification test renders the recovery of robbed property irrelevant at the bail stage?
- Can pronouncements rendered in appeals based on deep appreciation of evidence be applied directly to bail matters?
- Section 103, Code of Criminal Procedure 1898
ORDER
1. Allowed.
2. On 11-11-2002 Abdul Rafi Brohi together with Imran Ahmed Khan on Motorcycle No,SKG-5863 and Akbar Ali and Raheel on the other motorcycle went to Kabari" Market Ranchore Line for purchasing the spare parts. After making purchases when the complainant and others at 4-15 p.m. Returned and started their motorcycles two young boys of about 28/30 years one of whom was equipped with pistol robbed the complainant of his motorcycle at pistol point. Both of the culprits then drove away the motorcycle. At 4-45 p.m. The complainant lodged the F.I.R. At Nabi Bux Police Station stating therein that they had seen the culprits sufficiently and can identify them.
1. ' On the same day at about 5-5 p.m. A.S.-I. Muhammad Afzal alongwith PC Ejaz, while patrolling the area, suspecting two persons going on Motorcycle No,SKG-5853 gave them signal to stop.
2. Although the persons on motorcycle opened fire at the policemen with pistol but they managed to capture one of them. A pistol and motorcycle were also recovered. The captive introduced himself as Zulfiqar. His companion, however, managed his escape from the scene. The arrest and seizure was made under the cover of Mashirnama to which a private person Javed also acted as Mashir.
3. ' After investigation Zulfiqar was sent for trial. The other accused Aslam was shown as absconder.
4. After dismissal of his bail plea by the learned trial Court, Zulfiqar has filed the present application.
5. ' It has been argued by the learned Advocate appearing for the applicant that the alleged recovery is said to have been made without complying with the provisions of section 103, Cr.P.C. He further contended that no identification test for the purposes of identification of the applicant by the complainant and his witnesses was held. In support of his contention, learned counsel referred to the decisions of Honourable apex Court reported in State through Advocate-General, Sindh, Karachi, v. Farman Hussain and others PLD 1995 SC 1 and State through Advocate-General, Sindh v.
6. Bashir and others PLD 1997 SC 408.
7. ' Learned State Counsel has opposed the bail plea saying that the applicant was captured immediately while taking the motorcycle after its robbery and pistol was also recovered from his possession, therefore, even if there was no identification test the evidence furnishes reasonable ground to believe the applicant to be guilty of the offence of robbery.
8. ' The evidence collected by the prosecution is that at about 4-15 p.m. The motorcycle was robbed of by two persons on pistol point and at 5-5 p.m. They were intercepted by police while driving the same motorcycle. The applicant is said to have been captured and motorcycle recovered from him besides the crime weapon i,e, pistol. The recovery of the robbed motorcycle within less than one hour's time connects the applicant, prima facie, with the offence of robbery. Thus, the evidence does furnish reasonable grounds to believe him guilty of the charge of robbery of the motorcycle.
9. ' The arguments about non-compliance of section 103, Cr.P.C. And identification test have no force in the circumstances. Identification test could be arranged but it seems, the same was not arranged due to lapse on the part of Investigating Officer. For that lapse the other material evidence does not loose its importance. The pronouncements referred to by the learned counsel are in appeals decided on the basis of deep appreciation of the evidence and not in the bail matters. They are not helpful to the applicant in the facts and circumstances of the present case. .