MUHAMMAD ALI Versus State Ghulam Murtaza Korai

ORDER

This bail application has been filed against the order of the Anti-Terrorism Judge Sukkur dated 28-7-2009 in Special Bail Application No.36 of 2008 by which the bail application was rejected hence this bail application.

2. Briefly the facts of the case are that the complainant SIP Abdul Rehman Kandhro had stated that when they were on a routine patrol duty within their jurisdiction at about 2:00 a.m. past morning when they reached Raw Machine at National Highway Panu Akil they saw two coaches going in front of their mobile, and in the light of their mobile they saw some 28 to 30 persons with open faces duly armed with K.K who emerged on the road and got the buses/coaches stopped on force of weapons with the intention to rob the buses. Some of the accused boarded the buses/coaches while other accused persons surrounded the buses and pointed their weapons on the buses. The police party alighted from the mobile and challenged the accused persons and the firing ensued between the police party and accused which lasted for about twenty minutes. During this encounter one passenger Wazeer son of Khaiso Machi expired; whereas another passenger Azhar Ali Awan also expired and a number of persons were injured. The police party identified about 18 accused persons whose names have been mentioned in the F.I.R. whereas eight to ten unknown persons were also involved. But since according to them their faces were open therefore they stated that they would be able. to identify the accused if seen again.

3. On 7-4-2008 while being in the police custody in Panu Akil Police Station in another case the present applicant was arrested on suspicion on the basis of spy information and was identified by three Police Constables in an identification parade held on 17-4-2008 before II-Judicial Magistrate Panu Akil. The applicant filed a bail application before the Sessions Judge, which was rejected by the impugned order.

4. We have heard Mr. Ghulam Murtaza Korai learned counsel for the applicant and Mr. Zulfiqar Ali Jatoi, learned D.P.-G. for the State.

5. The main contention of the learned counsel for the applicant is that the name of the applicant was not mentioned in the F.I.R. Even otherwise he argues that no specific role was assigned to him. He further submitted that he was arrested on the basis of spy information on suspicion by police and the identification parade was ten days latter when he was identified by three police constables despite the fact that the police must have had the addresses of a number of passengers who were present in the Coaches and were also injured during the encounter. He further submitted that he was not involved in the above mentioned incident and has been implicated in the case to show the progress of investigation in the case. He further argued that the identification parade was held ten days after the arrest of the applicant and 17 days after the day the incident allegedly occurred and submitted that the superior Courts have held that delay in holding identification parade may erode the validity of such identification parade. He further submitted that the Magistrate did not follow the procedure prescribed under the rules 22 to 36 of the Police Rule and section 22 of the Qanun-e-Shahadat Order 1984. In this connection learned counsel relied on the following judgments:---

(a) Mehmood Ahmed v. The State 1995 SCMR page 127

(b) State v. Sobharo 1993 SCMR page 585

(c) Badaruddin v. The State PCr.LJ 2008 page 495

(d) Saeed Ahmad v. The State 2009 MLD page 1047

6. The learned counsel further argued that it was 2'0 clock at night and according to F.I.R. there were 28 to 30 accused persons involved in the dacoity/robbery and murder and therefore even in the light of mobile it is not humanly possible for the police officers present who were also involved in the encounter to identify beyond doubt all the 28 persons. He further submitted that the two police stations are within vicinity of one kilometer from each other, therefore the chances are very bright that the police officers may have been given an opportunity of seeing the applicant/accused before holding of the identification parade. He therefore, prayed that since 2 reasonable doubt is present, therefore, the case is of further enquiry and the applicant who is languishing in jail in this case for more than 21 months may be released on bail.

7. The learned D.P.-G. strongly opposed the grant of bail and submitted that the delay in holding an identification parade does not vitiate the proceedings and the validity of the identification parade. He submitted that the fact that the names of eighteen accused have been mentioned in the F.I.R. means that the police party who was present and taking part in the encounter had the opportunity to properly see the accused persons and it does not appear to be beyond reason that they could identify the other accused whose names have not been mentioned in the F.I.R. He also argued that the applicant was also present in another encounter which had taken place in broad-daylight and therefore, the police officers had been able to look at him closely and recognize in the identification parade. The learned D.P.G also submitted that holding up the passenger coaches on the force of arms committing robbery and dacoity then being involved in the encounter with illegal weapons is a heinous offence and should be discouraged and accused of such an offence should not be granted bail as the punishment will definitely fall in the exception to section 497, Criminal Procedure Code and therefore the applicant is not entitled to bail.

8. According to the learned counsel, the only condition for holding identification parade is that it should be held before a Judicial Officer and proper number of dummies should be present and he pointed out that the same was held before a judicial Officer and required number of dummies were present, the names of the witnesses were mentioned and it was also mentioned as to at which number the present applicant on his own request was placed and the Judicial Officer has observed that all the three witnesses identified him immediately and therefore the identification parade could not be lightly discarded by this Court. In this connection, he relied on the following judgments.

(i) Muhammad Saleem v. The State 2005 PCr.LJ 1963

(ii) Sher Rehman v. The State 1999 MLD 550

(iii) Muhammad Ilyas and 2 others v. The State 1993 PCr.LJ 626

9. He specially relied on the judgment in the case of Muhammad Saleem quoted supra authored by Rehmat Hussain Jaffery, J. a Judge of this Court "as the then he was" who had dismissed the bail application by holding that at bail stage, only tentative assessment of evidence is required to be conducted and the identification test was positive which connected the accused with the commission of the crime. He therefore, prayed that the bail may be refused.

10. We have examined the case in the light of the arguments of the learned counsel, perused the records of the case and gone through the judgments relied on by the learned counsel. Before we discuss the merits and demerits of the case, we may observe that the learned Anti-Terrorism Judge Sukkur ("Mr. Ahmad Nawaz Shaikh") has passed a very sketchy and non-speaking order which could not be presumed to be passed by such a senior Judge. Without prejudice to above observation, we are of the view that the delay of ten days in holding the identification parade has not been properly explained and no cogent reason has been given for such a delay. Since we do not want to comment on the merits of the case at the moment as it may prejudice the case of either party. During the final hearing of the case before the trial Court but we find it hard to digest that in the circumstances of their case the accused could have been identified by the witnesses so quickly. The honourable Supreme Court in the case of Mehmood Ahmed and 3 others v. The State quoted (supra) have held as under:---

"The prosecution also relied upon identification parade in which Qamaruzaman had identified the appellants. The learned Judges of the High Court have relied upon it as a corroborative piece of evidence. We have examined the record of the identification proceedings and find that it suffers from infirmity and illegality, There were 24 persons mixed with the appellants jointly and it seems that on a query from the Magistrate whether the police had got them identified their answer was in the negative and further that they had come with muffled faces. According to the report Qamaruzzaman was called in, who without any hesitation identified Muhammad Safdar, Mehmood Ahmad and Nasir Ahmad and the identification parade ended. It is quite clear from the entire evidence relating to their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness.' In such circumstances the settled law is that identification could not be relied upon and was of no evidentiary value. Reference can be made to Khadim Hussain v. The State (1985 SCMR 721), where Shafiur Rehmsant, J. observed as follows:---

"It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Grown ILR 51 Lah. 396 in the following words:---

"The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."

11. The facts and circumstances of the present case are almost identical to that case and although as rightly pointed out by the learned D.P.-G. that case did not pertain to grant of bail had decided a leave to appeal petition filed against the judgment of the Lahore High Court in a criminal acquittal appeal but we find that if on the basis of the same facts the honourable Supreme Court has upheld the dismissal of criminal acquittal appeal then in this case also the delay in holding identification parade and other discrepancies are resulted in a case being made out for further inquiry and therefore we have of the considered opinion, that applicant is entitled to bail.

12. We, therefore, allow this bail application, admit the applicant to bail, subject to furnishing of solvent surety in the sum of Rs.2,50,000 (Rupees Two Hundred Fifty Thousand only) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.

13. The applicant is cautioned that he should attend all hearings before the trial Court and appear before the investigating agencies as and when he is required otherwise this concession of bail may be withdrawn.

Accordingly this bail application is disposed of in the above terms.

H.B.T./M-69/K Bail granted.