P L D 2013 Lahore 506 (PLP)

SHAHID HAMEED DAR, J.

During arguments in post arrest bail application (CrI.Misc.No.17240-B-2012) moved by Ahsan Taqveem accused, it transpired that respondent Abdul Shagoof had been granted post arrest bail vide order dated 10-8-2012 by the learned Magistrate section 30, Ferozewala (Sheikhupura). On perusal of the bail granting order, it looked unimpressive, having been passed in disregard to the material available, which led to issuance of notice under section 497(5) Cr.P.C. to the respondent- accused.

2. Learned counsel submits that the respondent-accused has been falsely involved in this case by the vindictive police officials as his wife Mst.Shabana Kausar moved a petition under section 491, Cr.P.C. before the learned Additional Sessions Judge, Ferozewala for recovery of her husband and one Sabir Hussain which led to recovery of the alleged detenus by the bailiff on 28-6-2012 and since then, SHO of Police Station Factory Area (Sheikhupura) became a personal enemy of the respondent-accused and his other family members; the respondent- accused, his wife and his brothers filed a petition under sections 22-A, 22-B Cr.P.C. against aforesaid SHO which was disposed of vide order dated 23-6-2012 by an Ex-Officio Justice of Peace, Ferozewala with a direction to the respondent-SHO not to cause undue harassment to the petitioners; in both the petitions, the SHO tendered report that Abdul Shagoof was not required in any case nor he had been harassed by the police in any unlawful manner; the alleged occurrence took place on 9-6-2012, which was reported to the police by Muhammad Bashir (complainant) through F.I.R. No.673/12, under sections 392, 397, P.P.C., Police Station Factory Area (Sheikhupura), wherein, three unknown accused were alleged to have committed the offence; the investigating officer booked the respondent-accused in this case, on 28-6-2012 through supplementary statement of the complainant and it so happened, when he was recovered by the bailiff from the said police station, the same day; the test identification parade is of no consequence as respondent-accused and the complainant resided in the same colony/area.

3. Learned Deputy Prosecutor General Punjab appearing on behalf of the State opposed contentions of the learned counsel for the accused.

4. After hearing learned counsel for the parties and perusing the record, it is observed that the bail granting order has been passed in sheer disregard to the record available as, observations made by the learned judicial magistrate are ridiculous as well as unconvincing. The evidence of test identification parade did not look worth-consideration to the learned trial court as he could not find any order of learned Sessions Judge or that of learned Magistrate for fixation of date and time of said exercise. Interestingly, the police record categorically shows that learned Sessions Judge, Sheikhupura directed learned Ilaqa Magistrate, vide order dated 7-7-2012 to "conduct identification parade of the said accused person, in accordance with law", in response to which learned Ilaqa Magistrate fixed the date as 17-7-2012, for holding the test identification parade, in the premises of District Jail, Sheikhupura. The record further reveals that the test identification parade was held on 17-7-2012 under the supervision of learned Ilaqa Magistrate during the course of which the complainant and others correctly picked up the respondent-accused and his co-accused. Learned bail granting court has recorded another facetious finding as to the age(s) of the accused including the respondent-accused, which is equally implausible. Does it mean that the order in question may be recalled only for the mentioned fallacies?

5. Let an answer to the noted question be searched for. The respondent-accused, for one reason or the other, was being teased by the police when he along with his wife and brothers filed a petition under sections 22-A, 22-B, Cr.P.C. against the SHO of P.S. Factory Area (Sheikhupura), which was disposed of vide order dated 23-6-2012 by the Ex-Officio Justice of Peace, with a direction to the respondent-SHO not to cause undue harassment to the petitioners. Nevertheless, the respondent-accused was unlawfully picked up and confined by the said SHO which constrained his wife Shabana Kausar to file a petition under section 491, Cr.P.C. wherein a bailiff was appointed by the court who recovered the alleged detenu from custody of the police on 28-6-2012. It was at this stage, when, the respondent-SHO devised a supplementary statement of the complainant and roped the respondent-accused and three others in this case as accused. Interestingly, the date of implication of the respondent accused in the said case coincides to the event of his recovery by the bailiff, on the same day. The residential address of the respondent accused assimilates the address of the complainant which gives rise to a probability that the complainant and his co-witnesses might have been familiar and acquainted with the former, earlier to the date of test identification. Further remarks in this regard may prejudice anyone's case, therefore, it is left for the trial court to assess evidentiary value thereof (test identification) during trial. The probability cannot be ruled out that the involvement of the respondent-accused in this case may be due to mischievous wire-pulling by the police. Though order in question is not ideally good nor based on cogency-filled arguments, yet, it is not set aside for the reasons mentioned, hereinabove. Another fact which is equally crucial, does not allow interference in the said order, which relates to the factum of commencement of trial of the respondent-accused. The suo motu notice under section 497(5), Cr.P.C. issued to the respondent accused is withdrawn. The outcome of the impugned order remains intact. MWA/S-36/L Petition dismissed.