2004 P Cr (PLP)

Khalid Iqbal Memon for Applicants. Ali Azhar Tunio, Asstt. A.‑G. for the State. Date of hearing: 6th May, 2003. Applicants have been arrested in a case registered at Police Station Bakrani for an offence punishable under section 17(2) and 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The case was subsequently, challaned for an offence punishable ,under section 396, P.P.C.

2. According to F.I.R. complainant Faqeer Datar Bux and his nephews Khalil‑ur‑Rehman and Ajjab‑ur‑Rehman were going on a motorcycle when they were intercepted by 4 persons out of whom two were armed with K.K. and two had Lathis. They tried to snatch the motorcycle on which Khalil‑ur‑Rehman resisted. One of the culprits fired from his kalashnikov which hit Khalil‑ur‑Rehman at his chest. On the cries of complainant and on seeing police mobile appearing from Bakrani side, the culprits ran away. Khalil‑ur‑Rehman

3. I have heard Mr. Khalid Iqbal Memon, learned counsel for the applicants and Mr. Ali Azhar Tunio, Assistant Advocate‑General appearing on behalf of the State., The father did not oppose grant of bail.

4. The bail plea was advanced on the ground that the identification test was held after 10 days of arrest of applicants and even in that test no specific rule was assigned to each applicant. Besides, the complainant could not identify applicant Badlo. It was argued that identification test was held jointly and that only Lathis have been secured from the prosecution of applicants. He argued that the supplementary statement of complainant has also weakened the case of prosecution. Learned counsel for the appellant relied on the cases reported as Imamdin v. Pathan 2001 PCr.LJ 1892 = KLR 2001 (Cr.) (Larkana) 225, Shafique Ahmed v. The State 2002 PCr.LJ 518 = 2002 PCrR (Sukkur) 912 and Mehmood Ahmed v. The State 1995 SCMR 127, in support of his contentions. Learned Assistant Advocate‑General conceded that the case of applicants requires further inquiry.

5. Admittedly, the identification test was held on the 10th day of arrest of the applicant and in the police papers there is no plausible reason to explain the delay. It was a joint identification test. The witnesses did not specifically state as to what role was played by each applicant. No fire‑arm has been recovered so far and only Lathis have been secured from the applicants. The further statement of complainant which was recorded on 14‑1‑2003 shows that he had named the applicants on the basis of hearsay evidence received by him. In this view of the matter the value of identification test through complainant has rightly been questioned as it has been conducted in respect of nominated accused persons. The authorities cited by learned counsel for the applicant also lend support to the bail plea. The applicability of section 396, P.P.C. is also open to question as it is not made out that 5 persons conjointly committed the offence of dacoity. Even the further statement is silent in this regard.

6. In view of the facts and circumstances of the case discussed above coupled with no objection extended on behalf of the State, the application is allowed. Applicants be released on bail on furnishing surety in the sum of Rs.2,00,000 each and executing P.R. Bond in the like amount to the satisfaction of trial Court. H.B.T./B‑85/K Bail granted.