2008 P Cr (PLP)

DR. RANA MUHAMMAD SHAMIM, J.

By this application order, dated 22-12-2006 passed in Sessions Case No.281 of 2006 by IInd Additional Sessions Judge, South-West, Judicial Court Complex, Karachi is assailed, whereby the bail application of the applicant was dismissed on the ground that the accused persons including present applicant was identified in identification parade held before the concerned Magistrate and further hold that the case of the present applicant/accused would be considered after recording of statements of witnesses.

2. Briefly, the case of the prosecution as per F.I.R. lodged by the complainant Shah Mir son of Balaj Imran is that the deceased Muhammad Akber was his first cousin who was running car business in Dubai and he had come from Dubai to Karachi and was staying with Major Shahid at Defence. On 24-9-2005, he received telephone from Major Shahid informing him that some unknown persons fired at Muhammad Akber and he has been taken to Hospital in injured condition where he expired. The case was registered against the accused persons. The investigation was carried out by Sub-Inspector Faryad Hussain Bhatti and he has submitted his report that he could not find any clue and the case was closed being blind F.I.R. while closing the case he submitted that in case any culprit is arrested, further investigation is to be carried out, however, being not satisfied, the investigation was transferred to second Investigating Officer on 20-10-2005 to S.-I. Munir Hussain Chandio. Subsequently, complainant moved an application on 5-3-2006 that he has come to know that Munir Ghoto is involved in this case. After investigation, the police submitted challan on 24-9-2005 against Munir Ahmed Ghoto and present applicant Badaruddin alias Majid Shah.

3. Mr. Shaikh Javaid Mir, learned counsel for the applicant, submits that the only evidence available with the prosecution against the applicant is of identification parade which was held on 1-4-2006 after the delay of about six and half months of the incident. He further submits that the applicant and Munir Ahmed Ghoto were already in custody with the Police Station Boat Basin in other cases registered vide F.I.Rs. Nos.163 of 2006 and 164 of 2006 against them under section 13-D, Arms Ordinance. He further submits that on 22-3-2006, the applicant was already in custody when the complainant went to police station and the police shown the applicant and co-accused Munir Ahmed Ghoto in custody to the complainant. Learned counsel for the applicant further submits that there are possibilities that the applicant and co-accused Munir Ahmed Ghoto might have been shown to P.Ws. Irshad Ali and Muhammad Ali in police station while they were in custody. He further submits that again after the delay of 9 days of their arrest they were put to identification parade which creates serious doubt about their identity and in the manners the identification parade was held and the benefit of doubt is to be given to the applicant even at bail stage. He further submits that the identification parade suffers from inherent defects, as the memo. of identification parade nowhere shows that 10 dummies were separately arranged for the purpose of identification parade. He further submits that basic requirement of preparing of list of persons taking part in identification parade (dummies) mentioning their parentage, address and occupation, has not been mentioned and the learned Magistrate failed to ask the identification witnesses about the role of the applicant. He referred to Federal Capital and Sindh Courts Criminal Circulars, (which appears to case file at page 61) in respect of identification parade, the proper procedure has been described at page

73. The names of the witnesses and their particulars are required to be mentioned. He submits that no specific role is attributed to the applicant and he is in the prison for the last about 22 months without trial and there are no legal or moral bars to keep him for indefinite period which amounts to punishment without judgment. He relied upon the cases of Muhammad Ali alias Mummi v. The State 1978 PCr. LJ 850, Asghar Ali alias Sabah v. The State 1992 SCMR 2088, Mehmood Ahmad and 3 others v. The State 1995 SCMR 127, Muhammad Pervez and others v. The State 2007 SCMR 670 and a case of Khalid Zaman Kiyani v. The State SBLR 2008 Sindh

146. He submits that in view of the above reported case-laws, facts and circumstances, there are no reasonable grounds to believe that the applicant has committed offence as alleged and there exists sufficient grounds for further enquiry into the guilt of the accused as contemplated in subsection (2) of section 497, Cr.P.C. entitling him for the grant of bail. He further submits that the applicant is also entitled for the grant of bail on the ground of inordinate delay.

4. Mrs. Shahida Jatoi, learned counsel for the State opposed the grant of bail on the ground that the applicant has been identified by the witnesses in the identification parade. She further submits that admittedly there was no eye-witness being blind F.I.R. subsequently, the applicant was arrested on 22-3-2006 in another case. At the time of his arrest the applicant was using fake plate of his car. The news was published regarding the murder of the deceased Akber Umrani. The eye-witnesses Irshad Ali and Muhammad Ali upon reading this news voluntarily appeared before the police to become witness as they have seen the culprits while committing offence and they have given descriptions/hulyas of the accused persons. They further stated before the Investigating Officer that they can identify the accused persons if they are produced before them. Accordingly, the identification parade was held and they identified the accused persons including applicant during identification parade before the concerned Magistrate. She suggested that the applicant may repeat the bail application after examination of these two eye-witnesses.

5. I have heard both the learned counsel appearing for the applicant and State and perused the material available in the case file. Admittedly the only evidence with the prosecution is of identification parade held on 1-4-2006 after the delay of 6 and half months of the occurrence. The complainant has seen the applicant and the co-accused Munir Ghoto at police station on 22-3-2006. He has moved an application on 5-3-2006 that he has come to know that Munir Ghoto is involved in this case. It is a mystery that how it has come in the knowledge of the complainant that Munir Ghoto is involved in this case and there are possibilities that after seeing the present applicant and Munir Ghoto in the police station by the complainant on 22-3-2006 the witnesses Irshad Ali and Muhammad Ali may have shown the applicant and co-accused Muhammad Ghoto in the police station. No explanation was offered by the investigating Officer for delay of 9 days for holding the identification parade after the arrest of the applicant and co-accused. In the case of Muhammad Ali (supra), the bail was allowed on the ground of holding identification parade with the delay of six months after occurrence. In the case of Asghar Ali alias Sabah (supra), the Honourable apex Court has set aside the conviction on the ground that the identification of a person was made in identification parade held months after of his arrest. The event cannot satisfy the requirements of law for proving the identity of the culprit, in the case Mehmood Ahmed and 3 others (supra), the Honourable apex Court has not considered evidentiary value of the identification in identification parade of the accused and without describing the roles played by them in the crime, in the case of Muhammad Pervez (supra) it has been held by the Honourable apex Court that if the role of the accused is not described in the identification parade such type of identification looses its value and cannot be relied and in case of Khalid Zaman Kiyani (supra) while granting bail this Court has held that applicant was behind the bars for more than 2 years without any progress in the trial and he cannot be kept behind the bars for indefinite period as punishment for an offence which is yet to be proved. It was further held that in the past the delay was acknowledged as statutory right by the Legislation but for the best known wisdom same has been withdrawn but bail has always been conceded by the Honourable apex Court even when such provisions were not available on the statute book. It was also held that even. in some cases where such restrictions were imposed the Courts conceded bail on the ground of undue delay and where such inordinate delay has not been explained, it amounts to abuse of process of law being shocking and scandalous.

6. In view of the above facts and case-laws, I am of the considered view that the case of the applicant is of further inquiry and of inordinate delay and he is entitled for the grant of bail. The applicant is granted bail accordingly subject to furnishing solvent surety in the sum of Rs.5,00,000 and P.R. bond in the like amount to the satisfaction of the learned trial Court. H.B.T./B-26/K???????????????????????????????????????????????????????????????????????????????????? Bail granted.