1997 P Cr (PLP)

KAMAL MANSUR ALAM, J.

By this order we propose to dispose of Criminal Bail Applications Nos.430 and 538 of 1995 filed by Shamsuddin and Kouro respectively. Both the aforesaid applicants were arrested in F.I.R. No.3/95 of Police Station Lakhi Ghulam Shah lodged by complainant Abdul Majeed on 22-5-1995, alleging that on the night of 21-5-1995 at about 9-45 p.m., he, his brother Khamiso and Muhammad Punjal were returning from Lakhi Ghulam Shah to their village on motor-cycles, he and Punjal were on one motor-cycle while Khamiso was on another, travelling 15-20 paces ahead of them. Near the railway crossing five armed persons stopped his brother, of these, two were identified by the complainant as Yaqoob and Lai Bux who were carrying pistol and rifle respectively, while out of the three unidentified persons one had a Klashnikov and two had guns. Yakoob and Lai Bux fired at complainant's brother Khamiso causing injuries to his brother who fell on the ground and died. After firing at Khamiso all the accused fired in the air and went away. Both the applicants applied for bail before the Special Judge (S.T.A.), Shikarpur and on rejection of their application have approached this Court. It is contended by the applicant counsel that no description of the unidentified persons was given by the complainant in the F.I.R. and Punjal also, in his statement under section 161, Cr.P.C. neither named any of the applicants nor gave description of the unidentified persons. It is submitted that applicant Kouro lives in complainant's village and is well-known to him and applicant Shamsuddin lives in the nearby village, is working as Tapedar in the area and was known to the complainant and his deceased brother since long, as such had the applicants been present at the scene of occurrence, the complainant and his witness would have surely identified them. Identification test is attacked on the ground that only 20 dummies were intermingled with the accused for picking out the three unidentified persons as against the normal practice of intermingling nine or ten persons to each accused. The A.A.G. opposes the application. He submits that the two applicants were put to identification test on the day they were arrested and both were correctly picked out by the complainant and Punjal out of 20 persons and that Punjal also named them in his statement recorded under section 164, Cr.P.C. He further submits that empties of ammunition used in the crime were also secured from the place of occurrence. In these circumstances, according to him, for the present, there is no reason to believe that the applicants were not guilty of the alleged offence. In so far as recovery of empties is concerned that has no relevance for the present application, for, no weapon has been recovered from the applicants and it is not the case of the prosecution that these were fired from applicants' weapon. Similarly mentioning of applicants' names in Punjal's statement under section 164, Cr.P.C. is also not of much consequence, as this statement was recorded after the arrest and identification test. Coming now to the identification test, even if it was held on the day of applicants were arrested, the fact remains that more than a month had lapsed between the date of incident which took place on 21-5-1995 and the arrest of the applicants on 26-6-1995 and further that the number of dummies mixed with the three unidentified accused were only twenty and not in the ratio of 9 to 10 dummies to one accused as observed by the Honourable Supreme Court in case of Lal Pasand v. The State PLD 1981 SC

142. The relevant observation is:-- "We now turn to the question of the evidentiary value of the identification parade conducted by the police and as we explained, the Sessions Judge had rejected it, because the number of other persons intermingled with the accused in the identification parade was not in the proportion of nine or ten to one as laid down in a series of judgments of the West Pakistan High Court. The attention of the learned Judges of the Peshawar High Court was drawn to these judgments, but the learned Chief Justice overruled the view of the learned Sessions Judge, because he was of the view that the judgments of the West Pakistan High Court did not lay down an inflexible rule as held or assumed by the Sessions Judge. The question in which of these two views is to be preferred. And, whilst we respectfully agree with the observation of the learned Chief Justice, that the judgments of the West Pakistan High Court cited earlier, do not lay down an inflexible rule about the number of persons to be intermingled with the accused, the prosecution has always to explain its failure to conform to a ratio accepted by a long line of Judges. And, we may, further point out that the ratio of ten other undertrials to one accused had been prescribed by the Government of the United Provinces in its Government Orders for the Police (see paragraph 23 of the judgment in Ashraf and another v. The State AIR 1961 All. 153, Therefore, it would be monstrous for the Courts to permit a departure from a rule accepted by Government in the absence of some explanation by the prosecution. " The contention that omission to mention the description of the unidentified accused in the F.I.R. and statement under section 161, Cr.P.C. casts doubt on the correctness of the allegation, is also not without force. In the case of Nabi Bux alias Nabi v. The State 1989 PCr.LJ 1123. It has been observed that:-- ' "It is the bounden duty of the Police Officer to record description and inquire about it from the complainant and eye-witnesses at the very outset when F.I.R. and police statements are being recorded. This is to ensure that they are speaking truth and they have seen the incident and the facts of the accused persons clearly." And again that:-- "I do not see any reason why Police Officer should not ask the complainant and witnesses to give description of such accused persons. Absence of recording of description in F.I.R. and police statements can happen for two reasons. Firstly that-Police Officer who records F.I.R. and police statements is ignorant of law or secondly he wants to shield such culprits and such omission is deliberate and motivated." The allegation that the two applicants were well-known to the complainant since long and that applicant Kouro and complainant were resident of same village while applicant Shamsuddin lived in the nearby village, has 4lso not been denied. If this were so there seems no reason why they were not named by the complainant if they were present at the place. In the above circumstances we are of the view that the case of the applicants is that of further enquiry and therefore, they are entitled to the gram of bail at this stage. Accordingly we direct the release of the applicants on bail on their furnishing solvent surety in the sum of Rs.1,00,000 (Rupees one lac only) each and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./S-55/K Bail granted.