NISAR AHMED alias KALI alias IMRAN alias NISARA vs THE STATE and anothers
The petitioner sought post-arrest bail in a case registered under sections 395, 412, 392, 109, and 337-A(ii) of the Pakistan Penal Code. The core legal question was whether the petitioner was entitled to bail where his nomination was made through a delayed supplementary statement without a test identification parade and where recovery of stolen property was doubtful. The Lahore High Court held that cutting short the investigation process via a supplementary statement instead of holding a test identification parade creates a managed and inadmissible piece of evidence, rendering the case one of further inquiry under section 497(2) of the Code of Criminal Procedure. The court established that previous criminal antecedents alone, without conviction, cannot justify declining bail, and accordingly admitted the petitioner to post-arrest bail.
- Does a supplementary statement replacing a test identification parade create admissible evidence?
- Can previous criminal antecedents alone be a ground to refuse post-arrest bail when the accused has not been convicted?
- Whether the lack of a test identification parade for unknown accused nominated belatedly constitutes a case for further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Section 395, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 392, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' SHAHID HAMEED DAR, J.---The petitioner seeks bail after arrest in case F.I.R. No 90, dated 6-6-2011, under sections 395, 412, 392, 109, 337-A(ii), P.P.C., registered at Police Station Ab-e-Hayat, District Rahim Yar Khan.
2. Precisely the prosecution case as stated by Imran Saleem complainant is that nine unknown accused trespassed into his house at about 2-00 a.m. On 6-6-2011, rendered the inmates of the house hostages, committed torture upon his brother Sajid Suleman, broke open the locks of the house and looted cash, gold ornaments and other valuables at gun point; the above said accused also committed the dacoity at the house of Noor Ahmad, the same night and snatched cash, gold ornaments etc. From the inmates of the said house as well.
3. The petitioner was nominated as an accused of this case by the complainant through his supplementary statement dated 25-6-2011 whereby he also nominated eight other accused belonging to different provinces of the country.
4. After having been arrested on 14-8-2011, the petitioner allegedly got recovered two gold bangles on 26-8-2011 which were seized by the I.O. Through a memo of recovery.
5. After having heard learned counsel for the parties and perused the record, it is observed that the complainant while reporting the crime to the police gave a brief description of the external features and complexion of the unknown accused which, warranted holding of test identification parade to establish the identity of the accused. The, I.O. Instead of resorting to said exercise preferred a shot-cut by fabricating supplementary statement of the complainant on 25-6-2011 without ever perceiving, as to how damaging could it be for the prosecution's case. The supplementary statement of the complainant has been read over by the learned DPG and it is learnt that some of the accused stated therein hail from different parts of Province Sindh and some of them belong to different areas of Province Punjab. No one knows as to how the complainant learnt the names of the accused, their parentage and their places of residence. The probability cannot be ruled out that he had been guided in this regard by the police to implicate the above said persons in the instant case. It has been observed time and again by the Hon'ble Supreme Court of Pakistan as well as by this court that cutting short the process of investigation by way of a supplementary statement does not serve any lawful purpose nor it creates any admissible evidence and that such a-statement cannot be equated with lawful evidence of test identification parade but, the police appear to have turned a deaf ear to it which is unfortunate. In this background, the recovery of two bangles at the instance of the petitioner on 26-8-2011 may also be a 'managed' affair so as to create incriminating evidence against the petitioner, who after having been arrested in this case on 14-8-2011 stands incarcerated ever since. The argument of learned DPG that the petitioner has previous criminal antecedents, being involved in 14 other cases of almost identical nature may not be deemed a circumstance to decline his bail plea as he has not been convicted in any of the said cases. Sufficient reasons exist to believe that the petitioner's case constitutes need for further inquiry into his guilt as envisaged by section 497(2), Cr.P.C.
6. Therefore, I accept this application and admit the petitioner to post-arrest bail subject to furnishing bail bonds in the sum. Of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court.