JEHANGIR vs THE STATE
This criminal bail application arises from Crime No. 236 of 2010 registered at Police Station Tando Jam under sections 302, 324, 353, 147, 148, 149 of the Pakistan Penal Code 1860 and sections 6 and 7 of the Anti-Terrorism Act 1997. The core legal question was whether the applicant was entitled to post-arrest bail given that his name did not appear in the FIR, the identification parade suffered from procedural flaws and delay, and the weapon recovery was doubtful. The Sindh High Court held that the applicant made out a case for further inquiry under Section 497 of the Code of Criminal Procedure 1898, confirming the grant of bail. The key principle laid down is that delayed identification parades open to the possibility of prior exposure, coupled with doubtful weapon recoveries and the absence of the accused's name in the initial report, constitute grounds for further inquiry warranting the release of an accused on bail.
- Whether the absence of an accused's name in the FIR makes out a case for further inquiry under Section 497 of the Code of Criminal Procedure 1898?
- Does a delayed identification parade where the accused was allegedly shown to witnesses lose its evidentiary value at the bail stage?
- Can bail be granted when the recovery of the alleged crime weapon is delayed and inconsistent with the initial report?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 6, Anti-Terrorism Act 1997
- Section 7, Anti-Terrorism Act 1997
- Section 497, Code of Criminal Procedure 1898
- Qanun-e-Shahadat, 1984
ORDER
' RIAZAT ALI SAHAR, J.---Applicant Jehangir son of Muhammad Bux alias Hakim has been involved in Crime No,236 of 2010 of Police Station, Tando Jam for offences punishable under sections 302, 324, 353, 147, 148, 149, P.P.C. And 6/7 ATA 1997:
2. The relevant facts of the prosecution case are that on 5-11-2010 at 1500 hours complainant S.H.O./SIP Khalid Hussain Memon had lodged F.I.R. With Police Station, Tando Jam. According to F.I.R., on 4-11-2010 at about 2130 hours police party headed by complainant was on patrolling, when they reached at Tando Qaiser Chowk where they noticed firearm reports from the side of. PP Tando Qaiser, the police reached there, PC Muhammad Ali saw and identified on the light of bulbs each Mehboob Khoso (2) Suleman alias. Saleem (3) Akbar Parihyar (4) Haq Machhi (5) Mashooq Machhi and two unidentified persons duly armed with Kalashnikovs. There was exchange of firing between the culprits and the police, resultantly A.S.-I. Muhammad Saleh Khaskheli received firearm injuries and fell down while accused persons taking advantage of crops made their escape good. A.S.-I.
Muhammad Saleh succumbed to the injuries, thereafter complainant party along with SPO and other police personnel chased the accused through their foot prints at different places, which ultimately disappeared. Subsequently, complainant came at Police Station and lodged instant F.I.R.
After usual investigation, the case was challaned by implicating the applicant on the basis of identification parade and recovery of one T.T. Pistol.
3. It is, inter alia, contended by the learned counsel for the applicant that name of present applicant does not transpire in the F.I.R.: no description of applicant has been given. The F.I.R. Is delayed by 17 hours; such delay is not accounted for by the complainant though he is a responsible police officer; nothing has been recovered from the possession of present applicant; recovery of one. T.T. Pistol is foisted upon him by the police; identification parade is delayed by about 6 days. He further contends that the case of present applicant does not come within the ambit of prohibitory clause of section 497. Cr.P.C.
4. Conversely, learned D P. G. Recorded his objection and states that the applicant has been rightly picked out by the P.W. Therefore, his case is not fit for grant of bail.
5. We have considered the respective submissions of learned counsel for the applicant, learned A.P.G. And examined the record.
6. Admittedly the name of present applicant does not transpire in the F.I.R. And the applicant was arrested on 26-1-2011. The identification parade is delayed by about 6 days and such delay has not been accounted for by the prosecution, during identification parade, the applicant raised objection that witness has seen him at Police Station Tando Jam for many times during remand, such objection was noticed by the learned Magistrate, therefore, possibility of applicant having been shown to the prosecution witness before the conducting identification parade could not be ruled out, which also loses its evidentiary value. Amir Bux son of Noor Muhammad sworn his affidavit before the trial Court whereby he denied being a witness of identification parade. So far the' recovery of T.T. Pistol is concerned, same is delayed by about 3 months after the incident and 7 days after the arrest of applicant and too on the pointation of accused. The recovery of T.T. Pistol as put forth by the prosecution is doubtful at this stage for the reason that F.I.R. Showing the crime weapon to all accused persons as Kalashnikovs, besides the recovery was effected in presence of police mashirs. The case has been challened, as such, the applicant is no more required for further investigation to the police. In view of above circumstances, the case of present applicant requires further inquiry and consideration.
7. We are of the considered view that the applicant has succeeded to make out his case for grant of bail. In the light of above reasons, the bail was allowed to the applicant by our short order dated 16-8-2012 and these are the detailed reasons for the same.
8. The observations made herein above are prejudice the case of either party at the time of trial.
9. Qanun-e-Shahadat (10 1984)---tentative in nature and will not
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