MUHAMMAD ABBAS vs THE STATE and anothers
This criminal petition arises out of a post-arrest bail application filed by the petitioner, Muhammad Abbas, in a case registered under sections 392 and 411 of the Pakistan Penal Code 1860 relating to a dacoity at a warehouse. The core legal questions involve whether the failure to hold an identification parade and the nature of an alleged recovery of a mobile SIM card render the case one of further inquiry under the Code of Criminal Procedure. The Lahore High Court held that where an accused is not subjected to an identification parade and the recovery of items is not effected directly on the pointation of the accused but rather produced by a third party, the matter constitutes a case of further inquiry. Consequently, the court admitted the petitioner to post-arrest bail. The key principles laid down include that only recoveries effected strictly on the pointation of an accused are admissible as incriminating evidence, and police practices of treating articles produced by third parties as recoveries on pointation are legally flawed and must be curbed.
- Does the absence of an identification parade and questionable recovery make a criminal case one of further inquiry for the purpose of bail?
- Are recoveries of case property produced by third parties rather than on the direct pointation of the accused admissible as incriminating evidence?
- Whether the petitioner is entitled to post-arrest bail when named without description in the FIR and not identified through an identification parade?
- Section 392, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
ORDER
' SYED IFTIKHAR HUSSAIN SHAH, J.---The post-arrest bail has been claimed by the petitioner Muhammad Abbas in a case F.I.R No,80 of 2011 dated 19-2-2011 registered under sections 392/411, P.P.C. At Police Station Saddar District Vehari.
2. The allegation against the petitioner is that he in the night between 5/6-2-2011 at about 1-00 a.m., along with his co-accused while armed with firearm, entered into the warehouse of Fauji Fertilizer Company, committed violence at the person of Chowkidar Muhammad Latif, tightened his hands and legs, dragged him inside the warehouse. Committed violence at the person of the complainant Muhammad Mushtaq and tightened his hands and legs, broke the locks of the godown and the office, summoned the truck loaded 231 bags of Urea Fertilizer, snatchedRs,8,000 from the complainant along with mobile phone, a writ watch and a suit snatchedRs,100 from the Chowkidar and locked them in the room. The robbed articles of ValueRs,3,10,000.
3. Learned counsel for the petitioner has contended that the alleged occurrence had taken place on 5-9-2011 whereas, the F.I.R. Was registered on 19-9-2011 with unexplained delay; the petitioner has been implicated on the supplementary statement of the complainant; that the petitioner was not put to the test of identification parade; that the recovery of mobile phone has not been effected from the petitioner. Therefore, the petitioner is not entitled to the concession of bail.
4. Learned D.P.G for the State has opposed this bail petition and contended that the petitioner was among the persons who robbed the warehouse of F.F.C. And 231 bags of Urea Fertilizer, snatched the articles from the complainant and Chowkidar. Sufficient incriminating evidence is available against him on the record therefore, he is not entitled for the concession of bail.
5. I have heard the arguments of learned counsel for the petitioner, learned D.P.G. For the State and also perused the record.
6. Allegedly, the petitioner along with his co-accused has committed robbery in the warehouse of F.F.C. From where, 231 bags of Urea fertilizer were taken andRs,8,000, mobile phone and wrist watch were allegedly snatched from the complainant andRs,100 were snatched from the Chowkidar. No description of the accused was given in the F.I.R. The petitioner was not put to the test of identification parade. It is alleged that a SIM of mobile phone has been recovered from the petitioner but the recovery memo dated 5-4-2011 reveals that{{URDU TEXT}} The SIM No,0300-5783653 was produced before the I.O. The aforesaid recovery cannot be said to be effected on the pointation of the petitioner and is not helpful to the prosecution at all.
7. In these circumstances, when the accused was not put to the test of identification parade and nothing has been recovered from him, the case against the petitioner has become a case one of further inquiry.
8. In view of above, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum ofRs,50,000 with one surety in the like amount to the satisfaction of the trial Court.
9. It is settled law that only the recoveries effected on the pointation of the accused are admissible as incriminating evidence against the accused. Now, a trend has recently been developed among the investigating officers that they treat the articles produced by someone else before them as the same recovered on the pointation of the accused on the ground that the accused had disclosed that case property was lying with such and such person and he had made a request to the said person to produce the same who has brought the same at the Police Station. The Investigating Officers after obtaining the case property from the said person, prepare the recovery memo that such and such article has been produced by such and such person and the accused in custody admits that it is the same article or thing which he had robbed and is the case property of this case. Such type of recovery is not on the pointation of accused and cannot be relied upon by the courts but the investigating officers prepare such type of recovery memo in order to benefit the accused. This trend should be curbed.
10. I.-G. Punjab is directed to look into this delinquency prevailing in his subordinates and ensure the investigation of the criminal cases will be in accordance with law. A copy of this order be sent to I.-G. Punjab for further necessary action.