2017 PLP 1891 (MLD)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

Learned Law Officer, under instructions of Zafar SI who brought the record submits that complainant has not turned up despite accepting service.

2. Through this petition, Waris Ali petitioner seeks post-arrest bail in case FIR No.114/2015, dated 10.4.2015, under Sections 395, 412, P.P.C., registered at Police Station Balouchni, District Faisalabad.

3. As per FIR, lodged on 10.4.2015 by Mazhar Ali complainant, the allegation against the petitioner is that in the night between 8/9.4.2015 he along with his co-accused entering in the house of the complainant committed dacoity and looted cash amount, gold ornaments, a licensed pistol .9 M.M. and two motorcycles. Initially the FIR was lodged against unknown person but later on petitioner was implicated in this case through complainant's supplementary statement dated 05.5.2015.

4. Heard. Record perused.

5. Perusal of the record transpires that the petitioner is not named in the FIR, rather, he has been implicated in this case on the basis of belated supplementary statement of the complainant dated 05.5.2015 wherein the complainant has failed to mention the source of information. As per police record, initially the case was registered against 8/10 unknown persons, but later on complainant in his supplementary statement nominated only three persons including the petitioner. It is settled principle that supplementary statement has no evidentiary value. Reliance is made upon Muhammad Rafique v. The State (2008 YLR 2776).

6. The petitioner was in judicial lockup in some other criminal case when implicated in this case by the complainant through his supplementary statement, therefore, in the attending circumstances the identification parade of the petitioner is not helpful to the case of prosecution. Furthermore, identification parade was conducted later on and failure on the part of witnesses to describe the role of accused at the time of identification parade is an inherent defect, which renders the identification parade valueless and unreliable. Guidance is sought from Muhammad Afzal alias Abdullah and others v. The State and others (2009 SCMR 436), Bacha Zeb v. The State (2010 SCMR 1189) and Sabir Ali alias Fauji v. The State (2011 SCMR 563). The occurrence allegedly took place in the night between 8/9.4.2015 whereas the FIR was registered on 10.4.2015 after delay of about 22 hours without explaining any sufficient reasons, therefore, chances of petitioner's false implication with deliberation after consultation cannot be ruled out. Reliance can be made upon on the case of Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949), Muhammad Rafique and others v. The State and others (2010 SCMR 385) and Hadayatullah v. Abdul Hameed and another (1984 SCMR 119).

7. Learned counsel for the complainant has laid much emphasis on the point that during investigation a motorcycle and Rs.1,00,000/- has been recovered on the pointation of the petitioner, which connects him with the commission of alleged offence. It is important to note that during investigation on 12.6.2015 the petitioner allegedly got recovered a motorcycle standing in his residential room and thereafter on 21.6.2015 he again got recovered Rs.1,00,000/- from his residential room. It cannot appeal to a man of common prudence that the petitioner got recovered the motorcycle and Rs.1,00,000/- from the same place on two different occasions. Furthermore, perusal of recovery memo relating to recovery of Rs.1,00,000/- reveals that the same is incomplete as the details of currency notes have not been mentioned in the said recovery memo, which makes the prosecution case prima facie doubtful and benefit of doubt even at bail stage must go in favour of the accused. Guidance is sought from Saeed Ahmad v. The State (2012 PCr.LJ 1293), Muhammad Zafar v. The State and another (2012 PCr.LJ 1549), Shahid Ali Dharejo and another v. The State (2012 PCr.LJ 1601) and Abid Aziz Ashrafi and 3 others v. The State (2012 PCr.LJ 1148).

8. Needless to mention that on 31.8.2015, the complainant has lodged another application to the police nominating Abbas accused on the ground that he has come to know through some reliable sources that the occurrence was committed on behest of Abbas accused. In the attending circumstances, alleged complicity of the petitioner in the commission of crime is necessarily a matter of further inquiry in terms of section 497(2), Cr.P.C. as per law laid down by the August Supreme Court of Pakistan in cases reported as Ehsan-ullah v. The State (2012 SCMR 1137), Mithu Pitafi v. The State (2009 SCMR 299) and Qamar alias Mitho v. The State and others (PLD 2012 SC 222). As regards contention of learned DDPP that petitioner is involved in number of cases of similar nature suffice it to say that there is no conviction on the part of the petitioner in such cases. Guidance is sought from Jafar Hussain alias Jojo v. The State (2008 PCr.LJ 1444).

9. Petitioner was arrested on 09.6.2015 in this case and since then he had been in custody. Despite submission of challan, no proceedings had been concluded nor there was any reasonable possibility of conclusion of trial in near future. Therefore, petitioner is entitled to the concession of post-arrest bail. Guidance is sought from Shabeer v. The State (2012 SCMR 354).

10. For the above reasons, this petition is accepted and petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/- (rupees two lacs) each with two sureties each in the like amount to the satisfaction of learned trial Court. HBT/W-17/L Bail granted.