FARMAN ALI Versus STATE

MUKHTAR AHMED JUNEJO, J.‑‑‑ Petitioner Farman Ali seeks leave to appeal against the Lahore High Court's judgment dated 31‑7‑1996 dismissing his bail prayer and affirming the order passed by a learned Additional Sessions Judge dismissing first application for bail in the case which is outcome of F.I.R., No.371 of 1994 of Police Station Sharaqpur Sharif, .District Stiaikhupura. .

2. Said F.I.R. relates to robbery of Truck No.5485/GLT from possession of its driver complainant Khalid Mahmood and its cleaner Qamar Shahzad on 28‑10‑1994 at 1‑00 a.m. at the road going to Sharaqpur from Shaikhupura. As per the F.I.R., the robbery was committed by foul unknown culprits who were in Truck No.6919/PRD and were armed with firearms. They parked their truck in front of the complainant's truck to stop it. One of the culprits who had a revolver, aimed it at the complainant and pulled him out of driver's seat. Another culprit with a carbine caught hold of cleaner Qamar Shahzad. Remaining two culprits, one having a pistol and another having a carbine, aimed the same at the complainant party, to silence them. Thereafter the complainant and P.W. Qamar Shahzad were tied and gagged and thrown in shrubs near a canal, after being carried by their truck. Consignment of complainant's truck was shifted to other truck, which was also removed with complainant's truck. The complainant and P.W. Qamar Shahzad were unitied by passengers of a passing bus. Such F.I.R. was lodged by Khalid Mahmood with police.

3. The petitioner moved the Court of Additional Sessions Judge, Ferozewala without success. The petitioner moved Criminal Miscellaneous No.2321‑B of 1996 in the Lahore High Court for bail, but the same was dismissed on 31‑7‑1996. Hence this petition.

4. Notice of this petition was given to the Advocate‑General, Punjab.

5. Mr. Muhammad Ilyas; learned counsel for the petitioner argued that name of the petitioner did not appear in the F.I.R., and no role was assigned to him and that the petitioner could not have driven the same truck on the same day viz. 28‑10‑1994 after the same was robbed.

6. Mr. Ch. Muhammad Ibrahim, learned counsel for Advocate‑General opposed the application for bail and argued that it was not necessary to hold identification test of the petitioner because the robbed truck was recovered from him on the day of robbery.

7. Holding of identification test becomes necessary in cases, where names of the culprits are not given in the F.I.R. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits. , Holding of identification test cannot be dispensed with, simply because the person accused of committing the robbery, has been subsequently found in possession of the robbed goods. It is not necessary that the eye‑witnesses of the robbery should have witnessed the recovery of the robbed property. It was not the prosecution case that the recovery of the robbed truck took place in presence of the complainant and his cleaner and hence identification test of the petitioner through the complainant and Qamar Shahzad was absolutely necessary. The prosecution has not brought sufficient material on record to show that in effecting recovery of truck the investigating police complied with section 103 of Cr.P.C. Such point and many others, have to be looked into at the time of the trial: For the present, the petitioner appears to have made out a case for being released on bail.

8. Consequently, we convert this petition into appeal and accept the same, with the result that the petitioner/appellant Farman Ali is granted bail in sum of Rs.1,00,000 (Rupees one lac) with solvent surety in the like amount to the satisfaction of the trial Court.

N.H.Q./F‑409/S Bail allowed.