2016 PLP 110 (YLRN)

S. 497 (2)

Penal Code (XLV of 1860), Ss. 392 & 411

Dacoity and recovery of stolen property

Bail, grant of

Case of further inquiry

Unexplained delay in recording supplementary statement

Accused was not nominated in FIR and was involved on the basis of supplementary statement of complainant recorded after about 25 months of alleged occurrence

Validity

Accused was behind bars since his arrest and recovery of an amount of Rs. 40,000 was effected from him

Fact as to whether alleged recovered amount was stolen property would be thrashed out after recording of evidence during trial

Mere registration of other criminal cases against accused without conviction did not disentitle him from concession of bail, if he was otherwise entitled to the relief

Investigation was complete and accused was no more required to police for further investigation

All such factors made out case of accused as one of further inquiry

Bail was allowed in circumstances. [Para. 10 of the judgment] Allah Wasaya v. The State 2004 PCr.LJ 1659; Rizwan Zafar v. The State and others 2013 PCr.LJ 226; Muhammad Amin v. The State 2008 MLD 946; Bilal v. The State and others 2014 MLD 1223 and Muhammad Sajad v. The State 2008 PCr.LJ 831 rel. Rana Muhammad Sarwar Khan for the Complainant. Abdul Jabbar Dogar, D.D.P.P. along with Khalid Hussain, A.S.I. for the State. ORDER FARRUKH GULZAR AWAN, J.

Petitioner Muhammad Sarwar has sought post arrest bail in case FIR No.364 dated 28.12.2013 registered under sections 392/411, P.P.C. at Police Station Saddar Samundari District Faisalabad.

2. The allegation against the petitioner is that he along with his co-accused while armed with fire arms intercepted the complainant party in the area of Bohar Wala Chowk No.465 G.B. and snatched Rs.15,50,000/- as well as two mobile phones on gun-point. The said occurrence was allegedly witnessed by Ezad Iqtidar son of Abdul Rasheed, who disclosed the names of two of the accused as Muhammad Sarwar son of Abdul Rehman and Mansha son of Yousaf. The petitioner was involved in this case on the supplementary statement of the complainant on 26.4.2015.

3. Arguments heard. Record perused. 6(sic.) The petitioner is not the nominated accused of the FIR, who was involved in this case on the supplementary statement of the complainant on 26.4.2015, which was recorded after about 25-months of the alleged occurrence. The complainant did not disclose any source of information in his supplementary statement about the involvement of the petitioner in this case.

7. Admittedly, the name of the petitioner does not exist in the FIR and even no description as to the body structures of the unknown accused has been given in the FIR. The petitioner was first time introduced as an accused of this case on the supplementary statement of the complainant recorded on 26.4.2015 after 25-months of the occurrence, which too without disclosing the source of information in respect of involvement of the petitioner in this case. No test identification parade to fix up the identity of accused has been conducted. The holding of test identification parade would become all the more essential in cases where names of accused were not provided in the FIR. Reliance in this context can be safely placed on case titled "Allah Wasaya v. The State (2004 PCr.LJ. 1659 [Lahore])". "Implication of accused on basis of supplementary statement

Scope

Time and date of recording supplementary statement was to be established beyond any shadow of doubt as in the absence of such proof there was chance of false implication of a person in the criminal case, that too after deliberation and consultation." The complainant has not mentioned in his supplementary statement recorded after 25-months of the occurrence, as to how he identified the petitioner being culprit of the instant case especially when he neither gave description as to the body structure of the unknown culprits in the FIR nor the unknown persons were previously known to him. Neither the complainant nor the prosecution witnesses attributed any specific role to the petitioner and the credibility of said witness would be needing further probe. Reliance can be placed on case titled "Muhammad Amin v. The State (2008 MLD 946 [Lahore])". "The petitioner is not named in the FIR. In such like cases the identification parade is mandatory to establish the identity of actual culprits. Reliance can easily be placed upon 1997 SCMR

971. In which it has been held by the Hon'ble Supreme Court of Pakistan that holding of Identification test could not be dispensed with simply because accused, who is allegedly committed the robber has been subsequently found in possession of the robbed goods." The identification parade must be held as early as possible after the arrest of the accused but no later than fifteen days-Identification parade is always held for two purposes, one to establish identity of the culprit and the second to pin-point the role played by him in the commission of the offence. Reliance can be placed on "Muhammad Sajad v. The State (2008 PCr.LJ 831 [Lahore])".

10. The petitioner is behind the bars since his arrest and the recovery of an amount of Rs.40,000/- has been effected from the petitioner yet the fact as to whether the alleged recovered amount was the stolen property, shall be thrashed out after recording of evidence during trial. Mere registration of other criminal cases against the petitioner, without conviction, does not disentitle him from the concession of bail, if he is otherwise entitled to the relief. The investigation of this case is complete and his person is no more required to the police for further investigation. All these factors have made out the case of the petitioner being one of further inquiry. In view of above, the petition in hand is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the learned trial Court. MH/M-196/L Bail allowed.