2001 PLP 1425 (YLR)

Present applicants are seeking bail in Crime No.45 of 2000, registered with Police Station "B" Section Latifabad. Under section 17(3), Hudood Ordinance, and both have been sent up to face their trial by way of challan dated 22-8-2000. Brief facts of the case are that on 22-8-2000 at about 6-30 a.m. the complainant came out of his house to purchase bread when he found three armed young boys. As the complainant Akbar Hussain Siddiqui turned to his house one of the three boys came near to him and asked him to go inside with him. Thereafter, three armed young boys entered the house confined his family members in a room and took the complainant to upper portion of the house where from the accused took out the golden ornaments and other house hold articles as mentioned in the F.I.R. and they left the scene thereafter the complainant went to police station and lodged the report. Mr. Jawaid I. Bukhari, learned counsel for the applicant has argued that the present applicants are said to have been arrested on 28-9-2000, whereas they have been subjected to identification test on 6-10-2000 and there is delay of 8 days which goes unexplained by the prosecution. He has further argued that the recovery has been effected on 1-10-2000 and 5-10-2000 from both .the applicants of bangles, ear tops, 5 rings and necklace and V.C.R. and according to him these articles have not been subjected to identification test through the complainant who claims to be the owner of the said property. According to him the complainant was present at the time of recovery which is said to have been effected on 1-10-2000 and 5-10-2000 consecutively and the identification parade has been held on 6-10-2000 and the purpose of identification parade was futile when the complainant has already seen the accused at the titre of recovery. He has further submitted that he has got enmity with police officers of Hatri Police Station and in this regard he has placed on record the photostat copy of C.P. No.S-281 of 2000 and the order thereon passed by this Court dated 3-8-2000 and has finally argued that he is victim of enmity and has been made escape goat on account of, enmity with police. On the other hand Mr. Muhammad Azeem Panhwar, learned counsel appearing for the State has submitted that the recovery has been effected from both the accused on 1-10-2000 and 5-10-2000, consecutively and V.C.R. bangles ear tops, necklace have been recovered from their possession. When asked as to why there is a delay in holding the identification parade which has been held on 6-10-2000 a delay of 8 days whereas the recovery has been effected on 1-10-2000 and 5-10-2000 and at that time complainant was present. Mr. Muhammad Azeem Panhwar conceded that this is the lapse on the part of the prosecution but as far as the recovery is concerned that has been effected from the possession of the applicants. Mr. Muhammad Azeem Panhwar, could not reply to the query as to why these articles were not subjected to identification test. I have heard the learned counsel for the parties and have gone through the material available on record and have gone through the impugned order passed by the trial Court. Admittedly the present applicants have been arrested on 28-9-2000. It has been admitted by the learned counsel for the State Mr. Muhammad Azeem Panhwar, that on 1-10-2000 and 5-10-2000, the recovery has been effected from the applicants and the complainant was present and therefore, the identification parade has been held dated 6-10-2000 and the purpose of holding identification parade becomes futile when the complainant was present at the time of recovery on the aforementioned dates. Mr. Muhammad Azeem Panhwar has also pointed out from the Mashirnama of identification parade that there is a signature of Investigating Officer which shows that the identification parade has been supervised by the concerned Investigating Officer. As far as the recovery is concerned and the articles do not bear special marks and it is a joint recovery in the eye of law and the articles have been recovered from the house of the accused where other family inmates also reside and at the moment recovery becomes doubtful as the complainant was also present alongwith police at the time of recovery and it is to be thrashed out at the time of trial on the factum of recovery. As far as identification parade is concerned even during identification parade no role has been described to the present applicants as to what role was played by them during the commission of the offence as it is the claim of the prosecution that accused were seen at the time of Wardat and yet complainant has not narrated the role played by them at the time of incident and in this regard I am fortified by law of Honourable Supreme Court 1995 SCMR 127 wherein it has been observed by the Honourable Supreme Court that during the identification parade it is the duty of the prosecution witness who claims to have seen the accused at the time of Wardat to describe the role played by them during the commission of offence and which is not available in Mashirnama of identification parade and thus, the identification parade has lost its sanctity. The prosecution itself has injected the elements of suspicion in the case and no proper investigation has been conducted by police in this regard. Enmity has also suggested by the applicants and in order to prove their enmity the copy of C.P. No.S-281 of 2000 has been placed on record and under the law as held by Honourable Supreme Court in 1988 SCMR 1223, that the accused is not under obligation to prove his enmity affirmatively at the time of bail, and therefore, the applicants at the moment have been able to make out a prima facie good case for bail and in these circumstances they are granted bail subject to their furnishing solvent surety in the sum of Rs.2,00,000 (Rupees two lacs) each with P.R. Bond in the like amount to the satisfaction of the trial Court. H.B.T./T-13/K Bail granted.