MUHAMMAD KHAN KALHORO and another vs THE STATE
This matter arises from a criminal trial in which the applicants sought post-arrest bail facing charges under Section 395/34 of the Pakistan Penal Code 1860 in connection with an F.I.R. registered at Police Station Sharafi Goth Malir, Karachi. The core legal question revolves around whether the applicants were entitled to post-arrest bail considering the delayed identification parade, alleged police maltreatment, absence of recovery from the applicants, and the protracted period of incarceration spanning approximately 34 months without conclusion of the trial. The Sindh High Court held that the applicants were entitled to bail, observing that the delayed identification test after twelve days, potential police maltreatment, lack of recovery from the applicants, and the prolonged statutory custody distinguished their case from co-accused from whom recoveries were effected. The key legal principle laid down is that delayed identification parades coupled with prolonged incarceration and lack of recovery furnish sufficient grounds for further inquiry warranting the grant of post-arrest bail.
- Does a delayed identification parade give room for false involvement warranting post-arrest bail?
- Whether prolonged incarceration of thirty-four months without conclusion of trial entitles an accused to bail?
- Is the case of an accused from whom no recovery is made distinguishable from co-accused who had recoveries effected from them?
- Section 395, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. ' The applicants are facing trial in the Court of 1st Additional Sessions Judge Malir Karachi for an offence .Under section 395/34, P.P.C. Arising out of F.I.R. No,125 of 2001 of Police Station Sharafi Goth Malir, Karachi.
2. ' Briefly stated the facts of this case are that complainant Saeedullah lodged F.I.R. On 24-6-2001 at about 4-15 hours, stating therein that he has a cattle shed in village Sharafi Goth. On fateful night he and his servants namely Sonu and Ghulam Abbas were sleeping there, when at about 2 a.m.
3. 5/6 unknown persons tress-passed into the cattle pond. Out of whom, one was armed with rifle and the rest had Dandas in their hands. They confined complainant party in a room and forcibly took away six buffaloes of complainant. It is stated in the of F.I.R. That the culprits could be identified on seeing.
4. ' The police after registration of F.I.R. Conducted investigation and submitted challan on 17-7-2001.
5. ' It is contended by Mr. Mahmood A. Qureshi learned counsel for applicant that accused Muhammad Razzak and Jamshed were arrested on 26-6-2001 and the stolen buffaloes were recovered from their possession. The learned counsel states that present applicants were also arrested on 26-6-2001 but the police showed their official arrest on 28-6-2001. He has referred to a Roznamcha entry to that effect which is available in the police papers. It is submitted that the present applicants alonwith other co-accused were put to identification test and they were allegedly picked up by P.Ws. Ghulam Abbas, Sonu and complainant Saeedullah. The aforesaid identification parade was held on 9-7-2001. Learned counsel has further referred to a remand order dated 9-7-2001 wherein the accused made a complaint regarding the maltreatment at the hands of police. The learned Judicial Magistrate found some injuries on their person and remanded them to judicial lockup but thereafter the police took them to Additional City Magistrate Malir Karachi and held their identification parade. It is stated that four accused were mixed up with 10 dummies.
6. It is argued that accused are in custody for the last about 34 months and the trial is not yet concluded.
7. ' Mr. Habibur Rashid learned counsel appearing for State has opposed the bail plea of accused.
8. ' The record shows that identification test was held after 12 days of their arrest and they were mixed up with 10 dummies. Nothing is recovered from them. The remand order shows that accused were maltreated and this delayed identification test gives room to a false involvement of accused in the crime. The accused are in custody for the last about 34 months. Certain case diaries are in contravention of the prosecution case. The case of present applicants is distinguishable from other accused from whom recovery is made.
9. ' For these 'reasons the accused are granted bail subject to furnishing surety in the sum of Rs,50,000 each (Rupees fifty thousand each only) and P.R. Bond in the like amount to the satisfaction of the trial Court.