SHAH KHALID alias ALTAF vs THE STATE
This bail application arose from a case of dacoity and recovery of stolen property, where the applicant was arrested following a police raid on a godown and subsequently identified by witnesses. The core legal questions were whether the delay in lodging the First Information Report (FIR) without plausible explanation, the absence of a formal identification parade before a Magistrate, and the lack of an identification test for the recovered property warranted the grant of bail. The Sindh High Court held that because the applicant was not named in the FIR and was only identified in the presence of the police rather than through a proper judicial identification parade, the case against him required further inquiry. Furthermore, the Court observed that if the case was treated solely as one of recovery of stolen property, the offence would not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. Consequently, the Court allowed the application and granted post-arrest bail to the applicant.
- Is a formal identification parade before a Magistrate necessary if the accused is not named in the FIR?
- Does the identification of an accused solely in the presence of the police satisfy the legal requirements for establishing identity?
- Does an offence of mere recovery of stolen property fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 497, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
ORDER
1. ' Granted subject to just exceptions.
2. The case of prosecution, as reflected in the F.I.R. Lodged by Shahid Ahmed Khan, is that he is running the factory Aishahab Enterprises situated in North Karachi. On 14-12-2001 at 5-30 p.m. The complainant was present in his factory along with his helpers and other workers while the Chowkidar had gone for purchasing Iftari material when three persons entered the factory. One of them was armed with a Pistol. They confined the complainant party in the office and when Chowkidar turned up he was also confined there. Afterwards when the complainant party got out of the office by dislocating the tin roof they found that 20 bags of cotton yarn were missing. It is the case of prosecution that on 21-12-2001 the police, on receiving spy information raided a go down and recovered 20 bags of cotton yarn. The person present there namely the applicant was also arrested. He was identified by the witnesses.
2. Learned counsel for applicant submitted that the incident took place on 14-12-2001 yet the F.I.R.
3. Was delayed upto 20-12-2001 and there is no plausible explanation in the F.I.R. Secondly, no identification test was held in presence of a Magistrate but the witnesses had identified the applicant only in presence of police. There was also no identification test in respect of the property recovered. Additionally, he contended that statements of witnesses were not recorded under section 164, Cr.P.C. He relied on Farman Ali v. State (1997 SCM R 971). Ghulam Rasool v. State 2002 M LD 7 and Muhammad Nadeem Khan v. State 1999 M LD 1013. Mr. Javed AldLtar, learned counsel for State opposed the bail on the ground that the eye-witnesses had identified the applicant and recovery of the stolen property has been made in presence of mashirs.
4. The principle of law laid down in Farman Ali's case (supra) is fully applicable to the instant case. It was emphasized by the Honourable Supreme Cdurt that identification parade was necessary if the culprits were not named in the F.I.R. Similarly, the principle laid down by, this Court in Ghulam Rasool's case (supra) also supports the bail plea. In that case the accused was not named in the F.I.R. And no identification test was held relating to identity of the accused. In Muhammad Nadeem Khan's case (supra) the recovery was made from a thickly populated B area but no independent mashir was joined. In the instant case the name of applicant is not appearing in the F.I.R. And the prosecution has based its case on the identification of the applicant in presence of police. The identification of property has also not been held. If, at all, it is a case of recovery of stolen property the offence would not fall within the prohibitory clause of section 497, Cr.P.C., otherwise, the case calls for further inquiry as regards identity of the applicant.
5. ' In view of the circumstances discussed above the application is allowed. The applicant be released on furnishing surety in the sum of Rs,100,000 and executing P.R. Bond in the like amount to the satisfaction of the trial Court.