IMTIAZ ALI and 2 others vs THE STATE
This matter concerns a post-arrest bail application filed by three accused persons charged under sections 302, 324, 451, and 452/34 of the Pakistan Penal Code 1860, following an incident where a complainant party was fired upon, resulting in a fatality. The core legal question was whether the applicants were entitled to bail given the significant delay in conducting the identification test and the lack of other connecting evidence. The Court observed that the identification test was conducted eleven days after the applicants' arrest, which diminished its evidentiary value. Furthermore, the Court noted discrepancies between the FIR, which implicated two persons, and the challan, which implicated four, rendering the prosecution's case one of further inquiry. Relying on established precedents regarding the impact of delayed identification tests on the prosecution's case, the Court held that the applicants were entitled to bail. The key principle laid down is that an unexplained and significant delay in conducting an identification test of an accused person constitutes a valid ground for granting bail, as it renders the case one of further inquiry under section 497 of the Code of Criminal Procedure 1898.
- Does an unexplained delay in conducting an identification test of an accused entitle them to the grant of bail?
- Can a discrepancy between the number of accused persons named in the FIR and the final challan constitute a case of further inquiry?
- Is a case of further inquiry a valid ground for the grant of bail under section 497 of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 451, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' As per allegation of the F.I.R., dated 19-2-1999 which was lodged at 9-00 hours with Mehar Police Station District Dadu, the complainant Muhammad Sadiq who alongwith four other persons was going from the Bus Stop to their residence at Gulshan Madina Colony they heard the noises of thief, thief. It is further alleged that they saw two persons, one armed with gun and the other armed with revolver coming from that place; that the person armed with revolver fired at the complainant party which hit Ghulam Mohayuddin on the right side of his chest who fell down and died instantly.
2. The other accused armed with gun fired which did not hit any person. It is alleged in the F.I.R., that this act of the said two persons were 'with the intention to kill the complainant party. In the above circumstances the aforesaid F.I.R., was lodged under sections 302, 324, 451 and 452/34, P. P.C.
3. ' The present three applicants were arrested on 9-3-1999 and were produced for identification'test on 20-3-1999 i.e,, after the delay of 11 days. On 23-3-1999 challan was submitted against four persons showing one Bagho as absconder.
4. ' I have heard Mr. Azizullah Buriro for the applicant and Mr. Inayatullah Morio for the State.
5. It is strenuously contended that there is no other piece of evidence connecting the present two applicants in the alleged offence except the identification test which was conducted after the delay of 11 days. It was further contended that this delay has caused loss to the evidentiary value of such identification test. It was further argued that no specific role was assigned to the accused persons. It is also argued that no recovery has been affected. Mr. Inayatullah Morio has supported this bail application and contended that in the F.I.R., the allegations have been levelled against two persons while challan has been filed against four persons which has made the prosecution case a case of further enquiry.
6. ' Mr. Azizullah Buriro has referred to the cases of Hussain Bux v. The State 1994 PCr.LJ 508, Zahid v.
7. The State 1998 PCr.LJ 45 and Muhammad Nazir v. The State 1999 M LD 3253 and argued that in all these cases bail was granted to applicants/accused of heinous offences on the grounds that the identification test was conducted after much lapse of the time. Yet in another case Akhtar Muhammad v. The State 1987 PCr.LJ 2423 a learned single Judge of this Court Saeeduzzaman Siddiqui, J., (now Chief Justice of Pakistan) granted bail to the accused on the following grounds inter alia:-- ' ".... In the case before me applicant Akhtar Muhammad was put to identification test 'after 7 days of his arrest by the police while, he was taken out of the custody on two occasions for remand before the Magistrate during this period. There is no explanation available in the police papers for this delay in holding the identification test of the accused except the bar statement of the learned A.A.-G., that it took time for the police to locate the witnesses in the case who were to identify the accused in the identification test..."
8. The aforesaid case-law fully, attract in the circumstances of the present case and thus, the present applicants are entitled for bail as it is a fit case for further enquiry as provided under section 497, Cr.P.C. Accordingly bail.Is granted to all the three applicants/accused upon furnishing of surety in the sum of Rs,2,00,000 (two lacs) each with P.R., Bond in the like amount to the satisfaction of trial Court.