HUSSAIN BUX Versus STATE

ORDER

1. This bail application has been moved on behalf of applicant Hussain Bux son of Muhammad Moosa Brohi, who is facing trial for the offences under sections 460, 457, 34, P.P.C. and 13-D of Arms Ordinance in Crime No.46/92 of Police Station Khanpur.

2. The brief facts as alleged by the prosecution are that the complainant alongwith his brothers and other family members went to sleep after taking their meals. At about 12-15 a.m. it is alleged that the first informant woke up on the barking of dogs. He flashed torch and found four persons standing at the back side of their house. Two of them were armed with guns and the other two were armed with a hatchet and a Lathi respectively. The complainant challenged the accused and one of the accused who was armed with a gun fired a shot which hit to Illahi Bux, who fell down. Prosecution witness, Nabi Bux and others were attracted on the cries raised by the first informant. It is further alleged that the complainant party chased the accused but they could not apprehend them due to dark night. On their return they found the injured had a gunshot injury on left side of stomach. They took the injured to the hospital, but he subsequently died at about 6 a.m. and the F.I.R. was lodged by the informant at the Police Station Khanpur.

3. It is further alleged that on 9-10-1992 accused Kalandar Bux, Hussain Bux and Mir Jan all resident of the same village were arrested by the police and after usual investigation challaned them in the Court of Civil Judge and F.C.M. Khanpur, who sent the case for trial to the Sessions Court, Shikarpur.

4. The main contentions raised by the learned counsel for the applicant are that the co-accused, namely, Manzoor was granted bail before arrest by the trial Court and whereas the other accused, Kalandar Bux and Mir Jan and Hussain Bux were granted bail after arrest. However, a bail application on behalf of the present applicant was rejected by the trial Court as such he has filed the present bail application before this Court.

5. It is further contended by the learned counsel for the applicant that the name of the present applicant does not appear in the F.I.R. in spite of the fact that the applicant was known to the complainant party before the incident. He has further contended that the report was lodged under section 107, Cr.P.C. against the present applicant before the identification test was held and the present applicant was shown as respondent in the same. Learned counsel has further contended that the identification test was held after lapse of four months after the incident and he has urged that in view of the circumstances, the case of the applicant comes within the scope of further inquiry under section 497, Cr.P.C.

6. I have gone through the entire material placed before me and have also heard the learned AA: G. and also gone through the order passed by the learned Sessions Judge, Shikarpur on 3-12-1992; whereby the application of the present applicant was rejected. It is even clear from the order of the learned Sessions Judge that the present applicant was arrested on 9-10-1992 and the identification test took place on 19-10-1992 10 days after the arrest of the present applicant by the police.

7. It has been held in 1984 P Cr. L J 3229 that when the accused were in police custody for over a period of 15 days before they were put to identification test, the question of their complicity in the crime requires further inquiry. It has been further held in 1981 P Cr. L J 882 that when the prosecution relies for its case against the accused on their identification on the light of torch and lantern as well as on the evidence of footprints and the F.I.R. was silent as to the description of the alleged accused persons and the accused were arrested after six days of the alleged occurrence, it was held that the case of further inquiry as contemplated by section 497(2), Cr.P.C. was made out and bail was granted.

8. I have carefully considered the submissions of the learned counsel for the applicant and I feel that the main question in this case is identity of the present applicant and his connection with the offence. I have also heard the learned A.A.-G. who has opposed the grant of bail. However, he has submitted that on 7-10-1992 the names of the present applicant alongwith the other accused were shown as suspects by the complainant party to the police and as such they were arrested by the police and were put to identification test. This very fact goes to the great extent and show that the accused were already known to the complainant party.

9. Without going deeper into the merits of the case and on the basis of the tentative assessment of evidence which has been placed before me during arguments and the fact that the applicant was put to identification test after 10 days after arrest brings the case of the applicant within purview of subsection (2) of section 497, Cr.P.C. and case come within scope of further enquiry.

10. For the above reasons, I had directed by my short order, dated 10-6-1993 that the applicant be released on bail on his furnishing surety in the I sum of Rs.1,00,000 with P.R. bond in the like amount to the satisfaction of the trial Court and these are the reasons for the same.

11. N.H.Q./H-371/K ???????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.