1998 P Cr (PLP)

Further, the background of the case of the present applicant is that the applicant was in the first instance taken into custody on 15‑8‑1996, whereas his formal arrest has been shown to be on 9‑11‑1996. Investigation had further revealed that on 19‑7‑1996 one of the abductees Jamiluddin was released by the kidnappers for the purpose of bringing and paying ransom to them and such ransom in the sum of Rs.10,00,000 was paid on 20‑7‑1996 to the kidnappers. On 21‑7‑1996, police statement of Jamiluddin was recorded, wherein the said abductee did not mention the name of the present applicant but had mentioned only two names to be persons being the recipients of ransom namely, Yameen son of Jalaluddin alias Jalal Khoso and Raza Muhammad alias Razoo son of Hamid. Thereafter, on 10‑11‑1996 identification test was held of the present applicant alongwith four other accused persons in Crime No.47 of 1996. In the said identification test as many as 13 dummies were placed amongst 5 accused persons including the present applicant. After the investigation was concluded, challan was submitted before the S.T.A. Court at Hyderabad on 14‑12‑1996. Bail application was filed after the said challan was submitted on 28‑1‑1997 and upon hearing the plea bf bail was rejected by the Court of Special Judge, Suppression of Terrorist Activities, Hyderabad. The learned counsel representing the applicant has mainly made the following five contentions:‑‑ (a) There is no evidentiary value of the identification parade on the ground that the same is delayed by a period of over four months; (b) Prosecution has failed to conform to the ratio accepted by a long line of judgments laid down by the superior Courts to the effect that the ratio of dummies should not be less then 9 to 10 dummies for each accused. (c) The present applicant has not been stated by the abductee to be the recipient of the ransom money; (d) No description has been given and/or role assigned to the applicant and no Mushirnama of arrest of the applicant has been made in the present case though he was in the custody at least with effect from 9‑11‑1996 and his first remand was obtained on 16‑11‑1996. (e) No description has been given of the applicant under statement recorded before the police. Upon hearing the aforementioned submissions we had called upon the learned State Counsel to meet and explain the prosecution lapses as have been stated by the learned counsel for the applicant. The learned State Counsel has very fairly and frankly conceded to the grant of bail to the applicant. Applicant's counsel also submitted that C.I.A. Police who had challaned the applicant was not authorised or competent to investigate or challan the present applicant. However, mere concession by the learned State Counsel would not invest upon the applicant a right to be admitted to bail. We propose to record our independent reasons for the grant of such bail to the applicant which we had announced by a short order on 14‑1‑1998. The principles laid down for admitting an accused on bail sent up to face trial under the Suppression of Terrorist Activities Act, 1975, are that in the first instance, the prosecution has to make out a reasonable case against the accused charged under the Suppression of Terrorist Activities (Special Court) Act, 1975. In the event the prosecution achieves the objective of making out a reasonable case, it would be deemed that prima facie the burden of proof has been discharged by the prosecution, but in the event the prosecution fails to make out a reasonable case against the accused then he shall be entitled to bail. However, if the reasonable case against an accused is made out under the Suppression of Terrorist Activities (Special Court) Act, 1975, then the burden of proof would shift upon the accused to disproof the prosecution case. Indeed, if the accused is not able to discharge the onus of proof shifted upon him then he shall not be entitled to bail. But if he discharges the shifted onus of proof then he would be entitled to bail. These are the basic principles laid down by the Superior Courts and this Court while considering the present application for bail have to make a tentative assessment of the merits of the case by applying its mind in the form and manner mentioned hereinabove. Admittedly in the present case, the identification parade has been held after a period of 4 months and the ratio of dummies prescribed by the Superior Courts have been violated with no plausible explanation forthcoming from the prosecution. As such the evidentiary value of the delayed identification parade and non‑compliance of the ratio laid down by the Superior Courts would render the evidentiary value of such identification parade to be nothing short of but a diminished evidentiary value which does not make out a reasonable case against the applicant. In so far as the absence of description of the applicant is concerned, we would like to mention that the omission to mention the description of the unidentified accused in the F.I.R. and the statement under section 161, Cr.P.C. surely casts doubt on the character of the allegations and E the same is not without force. In fact, it is the bounden duty of the Police Officer to record description and enquire from the complainant and or eye witnesses at the very outset when the F.I.R. and the police statements are being recorded about the description of the accused, if known to them. In so far as the Mushirnama of arrest in the present case is concerned, the learned State Counsel has conceded that no such Mushirnama was prepared which aspect would further cause doubt in mind that the prosecution has for the purposes of bail failed to establish a reasonable case against the applicant. In order to examine as to whether C.I.A. is authorised and empowered to investigate and prosecute the applicant, it would be profitable to reproduce the: provisions of subsection (1) of section 156 of the Cr.P.C. which are asst follows:‑‑ "

156. Investigation into cognizable cases.-‑‑ (1) Any Officer‑in‑charge of a police station may without the order of a Magistrate, investigate any cognizable case which Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. " It would, thus, be seen that the power to investigate a cognizable offence under the above provision has been conferred on any officer incharge of the police station having jurisdiction over the local area within the limits of such police station. Surely C.I.A. personnel are not an officer incharge of police station having jurisdiction over the local area within the limits of police station who could investigate a cognizable offence nor are the C.I.A. personnel covered by the definition of the officer incharge of the police station given in clause (p) of section 4, Cr.P.C. which in the absence of officer incharge of the police station would include officer incharge present at the station house who is next to the officer incharge of a police station and is above the rank of a constable. As such C.I.A. personnel are not covered with the power to investigate cognizable offence and submit the challan in support thereof before the Special Judge Suppression of Terrorist Activities, Hyderabad. We would therefore, agree with the contention raised by the learned counsel for the applicant and it was for the aforementioned reasons that a short order granting bail to the applicant in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court was passed. In this case reliance has been placed on 1997 PCr.LJ 198, PLD 1997 SC 408 and 1995 MLD

583. The aforementioned observations are tentative in nature. H.B.T./W‑21/K Bail granted.