1994 P Cr (PLP)

S. 497

Penal Code (XLV of 1860), S.302/34

Bail

Benefit of doubt-- Benefit of doubt even at bail. stage is to be resolved in favour of accused. Shahadat Awan for Applicants. Fareed Ahmed Dayo for A.-G. for the State. Applicants Muhammad Hanif son of Muhammad Shafiq and Muhammad Vakeel son of Shaukat Ali are facing trial for offences under section 302/34, P.P.C. Qisas and Diyet Ordinance registered at Police Station Nabi Bux vide F.I.R. No.159 of 1992. The case of the prosecution is that complainant Kaloo, lodged report on 8-12-1992 in which he stated that his brother Heera had left his house at 2 p.m. and at about 3-30 p.m. he returned in an injured condition. Having knife injuries on his body and was bleeding. He fell down and became unconscious and therefore, he was removed to Civil hospital, Karachi where he expired due to the said injuries. The complainant further stated that there was a general strike because of Babri Mosque and people had caused damaged at Narainpura and this murder was also the result of the same cause and some unknown persons have caused the murder of his brother. During the course of investigation the applicants were arrested by the police on 22-12-1992, 5 days thereafter identification parade of the applicants was held through a Magistrate on 26-12-1992. Thereafter the police challaned the applicants. I have heard learned counsel for the applicants and Mr. Fareed Ahmed Dayo, learned counsel for the State. The latter has not opposed this bail application. Mr. Awan submitted that the applicants have been implicated on the basis of identification evidence which was held through two eye-witnesses namely P.W. Nazeer and P.W. Tanveer. He has pointed out that the identification memo has been merely signed by the learned Magistrate subsequently. Apart from it he has pointed out that the case of applicant Muhammad Hafiz is covered by section 64 of the Sindh Children Act, 1955 as he is a minor. In addition, he submits that the two eye-witnesses are stock- witnesses of the police station concerned and therefore, it is a case of further inquiry. After considering the material available on record, the position which emerges is that the prosecution has two pieces of evidence namely: ocular evidence of P.Ws. Nazeer and Tanveer, and secondly, the identification test. I have perused the original identification memo. It appears that the applicants were arrested on 22-12-1992 but the identification memo has been signed by the learned Magistrate on 28-12-1992 that is after three days after holding the identification test. The contention of the learned counsel that the identification memo has been signed subsequently appears to be correct. There is no explanation on the record why the identification memo was not signed by the Magistrate on 26-12-1992, when the identification parade was held. The inevitable conclusion is that perhaps no identification parade at all took place. This being the position, it will prima facie affect the veracity of the investigation conducted by the police and on this ground alone the case of the applicants become a case of further inquiry. It is obvious that even at bail stage if any doubt arises, the benefit of doubt is to be resolved in favour of they accused. In the light of my above discussion bail is granted to both the applicants on their furnishing one surety each in the sum of Rs.50,000 and P.R. bond in the like amount to the satisfaction of trial Court. By a short order, dated 12-12-1993 this bail application was allowed, these are the reasons for the same. N.H.Q./M-1948/K Bail granted.