2004 P Cr (PLP)

2. The accused were arrested and I.D. test took place. Thereafter the challan was submitted. The bail application was moved before the Sessions Court, Ghotki who dismissed the same.

3. This bail application has been preferred on several grounds including the existing of enmity between two tribes. It has further been stated that the co‑accused Saodoro and Abdul Harneed have been granted bail by the Sessions Court on 26‑2‑2003. It has also been urged that there is no mention of the names of the persons in the F.I.R. and no description (physical) has been given about the three accused. The I.D. test took place two months after the incident. Furthermore the Magistrate conducting the I.D. has not attested the certificate of I.D. memo. as contemplated in the High Court Rules. Furthermore the I.D. memo. does not show that the dummies were of the same structure, social status and similar dress. The applicant was seen on torch light and it is a weak form of identification. 161, Cr.P.C. statements have been recorded after five weeks of the incident even though one witness is the brother of complainant and the other witness is a neighbour. Learned counsel for the applicant has relied on the following case‑law:‑‑

4. In the case of Muhammad Akbar v. The State. 1983 PCr.LJ 1677, it was held that reliance on circumstantial evidence so as to connect the offence with the accused and there being no direct evidence available the case would fall under further enquiry. It is a well settled principle that if there is no direct evidence then bail has to be granted.

5. In the case of Ayoob v. The State 1994 PCr. LJ 1057; it was observed that identification by torch light was not a sufficient piece of evidence. It was also observed that identification by voice was also doubtful.

6. In the case of Hussain Ahmed v. The State 1996 PCr.LJ 130, it was observed that statement recorded under section 161, Cr.P.C. in favour of prosecution with the delay of 48 hours after the occurrence becomes doubtful and is out of, consideration being the outcome of deliberations.

7. In the case of Gulab v. The State 1974 PCr.LJ 74, it was held, that there was no description of the accused in the F.I.R. and I.D. test held 14 days after arrest of the accused. It was not good enough to establish I.D. of accused.

8. In the case of Liaquat Ali v. The State 1986 PCr.LJ'2317, it was held that name of accused did not appear in F.I.R. and the only evidence available against accused was I.D. test which was occurred 34 days after occurrence 'and witnesses claimed to, have seen culprits in moon‑light. It was a case for further enquiry and bail was granted.

9. In the case of Shafique Ahmed v. The State 2002 PCr.LJ 518, it was observed that accused as not nominated in the F.I.R. and nothing incriminating was recovered. I.D. test was therefore,.a hollow formality , devoid of any legal sanctity being in violation of prescribed rules and procedure. The I.D. test was held one month after the occurrence and third day of the arrest. In this the Single Judge has dwelt at length on Qanun‑e‑Shahadat Article 22, High Court Rules and Orders Volume III, Chapter II‑C Police Rules, 1934, 8.26.32.

10. In the case of Riaz v. The State 1998 PCr.LJ 1613, the I.D. was done on the basis of an alleged eye‑witness to the incident. However, the witness was closely related to deceased, hence the evidence of the witness could be said to be interested and therefore, could not be relied upon. The alleged eye‑witness neither could establish their presence at the scene occurrence nor could give description of features, age or stature of accused in their statement before police as well as before Magistrate, despite, the fact they claimed that they ‑had actually seen the offence.

11. In the case of Abdul Khalique v. The State 1996 SCMR 1553, it was held that late recording of statement under section 161, Cr.P.C. reduces its value to nil unless delay is plausibly explained.

12. I have heard both the `learned counsel for the applicant and the State. I have gone through the facts of the case and I have also reproduced above the various case‑laws relied upon by the counsel for the applicant. It is an admitted fact as. per the plain reading of the F. I. R. that the thieves have not been identified. There is no description of their features or their stature. It is an admitted position that the alleged identification is based on the flashing of the torch‑light and it is a night time incident.

13. The accused was arrested from his Otaq at 10‑00 a.m. and was put before an I.D. parade at 1‑00 p.m. The distance between the Otaq and the P.S. is said to be about 14/15 Kms. Thereafter, the accused must have been brought before the necessary competent authority so that the formalities of I.D. parade could be, done. The entire exercise seems a little difficult to have been conducted and finished within a span of three hours. Furthermore, the entire evidence is based on the flashing of a torch‑light. It would be interesting to note that the F.I.R: talks of a commotion with the result that the thieves started running. When thieves run and people are chasing them in the pitch‑dark of the night and those who are chasing the persons use a flash light logically that flash light would move with the rhythm of the person who is running and since the person who is being chased is also running then his back would be towards the persons who are chasing rather than his front side. To use the word commotion again it would be difficult to appreciate that in the high speed activity that resulted in the thieves running and the complainant party chasing them and thereafter one person using his K.K. to shoot at those people, who are chasing him, it would a little difficult to take the word of the complainant that he had seen the faces of the thieves and would be able to identify them on seeing them again. The commotion that is created through the process of running by itself makes the light move in all different directions and therefore, reliance on this type of identification would be fool hardy.

14. Under the circumstances, as it is a clear‑cut case of further enquiry, bail is granted in the sum of ks.2,00,000 and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./S‑34/K Bail granted.