2022 PLP 1773 (MLD)

ABDUL HAMEED BALOCH J.

Through this order I intend to dispose of above titled application filed by the applicant for his release on bail in case FIR No. 168 of 2019, under Section 302 Qisas and Diyat Ordinance, 34 Pakistan Penal Code (P.P.C.), Police Station Kechi Baig Quetta, registered on 10th December, 2019.

2. Concise facts of the case are that on 10th December, 2019, case FIR No. 168 of 2019, under above mentioned sections was registered with Police Station Kechi Baig Quetta on the report of Amanullah DSP with the allegation that some unknown persons have committed murder of his son Najeebullah in his car bearing registration No.QBB-9922 at Faiz Abad Ishaq Flour Mills Lane. It was alleged by the complainant that prior to this his son told him that he was present in the house of Qadir Qambrani and also informed that Sajjad was his debtor who had to pay him his loan amount and in this regard he (Sajjad) was going to Karachi and after meeting at Coach Stop Sariab Bridge he would return home. It was further alleged by the complainant that besides this there was monetary dispute with one Shah Fahad Luni and elder brother of Shah Fahad Luni namely Khushdil Khan Luni threatened his son. With these averments FIR was chalked.

3. The applicant/accused and co-accused were arrested in the instant case and subjected to investigation, whereafter; challan of the case was submitted to the court of Sessions Judge, Sariab Division. The applicant/ accused moved application for grant of bail before the trial court which was rejected on 15th December, 2020; hence the applicant/accused is before this court.

4. Heard learned counsel for the applicant, learned State Counsel and also perused the record with their able assistance. The record transpires that the complainant DSP Amanullah got registered FIR No.163 of 2019 at Police Station Kechi Baig Quetta, under Sections 302, 34, P.P.C. against known persons. During investigation the Investigating Officer secured finger print from right and left sides' door of the vehicle of the deceased. The applicant was arrested from Karachi. On the basis of disclosure co-accused Nasir Shah was arrested. As per prosecution co-accused Nasir Shah made disclosure wherein he stated that he along with Syed Sajjad (applicant) and Jamil Ahmed committed murder of the deceased, whereafter, co-accused shifted to judicial custody. The record further reflects that on 5th March, 2020 identification parade was conducted in District Jail Quetta under supervision of Judicial Magistrate-I, Sariab wherein co-accused Nasir Shah identified the applicant/accused. During investigation the report of Finger Print was obtained which does not match with the finger print of applicant/ accused.

5. So far the identification parade is concerned; the same has no legal value. The identification parade was conducted in supervision of Judicial Magistrate wherein co-accused identified applicant/ accused. Co-accused Nasir Shah is also facing trial. The record reflects that prior to identification parade co-accused Nasir Shah had already made disclosure before police and narrated the facts. The identification means the witness or witnesses has/have seen the glimpse of accused during commission of offence then the prosecution is bound to conduct identification parade, but in case in hand no such statement(s) is/are recorded, rather the identification parade was conducted wherein one accused identified the other accused which is not permissible under the law. The prosecution has conducted the alleged identification parade after more than fourteen (14) days. At the time of identification parade the applicant/ accused was shifted to judicial lock up. The prosecution has failed to plausibly explain the delay. Reliance is placed on the case of Sohail v. The State, 2014 PCr.LJ 1215 [Sindh], wherein it was held: "

3. After hearing learned counsel for the parties and going through the record I have observed as follows:-- (a) The applicant was neither nominated in the FIR nor any weapon used in the incident has so far been recovered from him. (b) There is no mention of the circumstances, in which complainant came to know that accused/applicant, who is his neighbour, was involved in this case. (c) Despite the fact that the accused was arrested by the complainant on an unidentified spy information, therefore, an identification parade was required since FIR was blind and the complainant was not eye witness of the incident. (d) The identification parade took place after a lapse of 14 days and during that 14 days, the accused/applicant was in the police custody. (e) The accused is in jail for the last more than a year and three months and investigation of this case has already been finalized as the challan has been submitted, thus the physical custody of the applicant is not required at this stage for the purpose of investigation. (f) The learned counsel has relied upon the case reported in 2005 YLR 1637 and 1994 PCr.LJ

504. In both the cases, the High Court has held that in a case of blind FIR and unexplained delay in holding of identification parade of accused creates serious doubts in the story of prosecution and thus it becomes a case for further inquiry in terms of subsection (2) of section 497, Cr.P.C. (g) In the present case, the delay in identification parade of the accused/applicant by 14 days and even the arrest by the complainant, who was not an eye-witness, provides sufficient ground of further inquiry into the guilt of the accused.

6. The applicant/accused is entitled to benefit of doubt even at bail stage. The Honorable Supreme Court of Pakistan in Muhammad Faisal's case 2020 SCMR 971 held: "

It is established principle of law that benefit of doubt can even be extended at bail stage." In view of the above the bail application is allowed. The applicant Syed Sajjad Ali son of Syed Tayab Ali is granted bail in case FIR No. 163 of 2019, under Sections 302, 34, P.P.C., Police Station Kechi Baig, Quetta, subject to furnishing surety bonds to the tune of Rs.300,000/- (Rupees three hundred thousand) and PR of the like amount to the satisfaction of Additional Registrar of this Court or the trial court. The observations made hereinabove are tentative in nature and same shall not influence merits of the case at the trial. SA/58/Bal. Bail granted.