1995 PLP 583 (MLD)

The police after usual investigation arrested the present applicants and sent up the challan before the Court of the Judge, Suppression of Terrorist Activities, Hyderabad. A bail application for the applicants was moved before the trial Court which was rejected and, therefore; these bail applications. We have heard the counsel for the applicants and also Mr. Muhammad Siddiq Kharal, learned Assistant Advocate‑General, Sindh. The counsel for the applicants have submitted that the names of the accused are not mentioned in the F.I.R. They have also argued that the incident is alleged to have taken place on 22‑10‑1993 whereas the identification parade is held on 20‑3‑1994 i.e. six months after the incident. They have also argued that even this identification parade is not in accordance with the requirement of law as all the accused were put to identification test separately being mixed up with the same set of ten dummies. They have also submitted that even otherwise this identification test could not be relied upon as the Mashirs of the identification are the Police Officials of the same police station who had been assisting the Investigating Officer. It has also been argued by the learned counsel that the abductee was released during the night between the 11th and 12th March, 1994 and his statement under 161, Cr.P.C. was recorded on 12‑3‑1994 wherein the names of the present applicants were not given but the abductee gave the names of four other persons who have also been challaned. It is also pointed out by the learned counsel for the applicants that second statement of the abductee under section 161, Cr.P.C. was recorded on 17‑3‑1994 on the plea that the abductee on 12th March, 1994 was not in proper senses having been released ‑on the previous night from the custody of abductors and, therefore, he was allowed five days time to regain the proper state of mind. Even in this statement the abductee has not named the present applicants. However, on 20‑3‑1994 the 164, Cr.P.C. statement of the abductee recorded and identification parade has been held wherein the present four applicants have also been implicated. As against this the learned AA.‑G. has submitted that there is sufficient material on record to connect the present applicants with the commission of the alleged crime. He has referred to the statements of the abductee recorded under section 164, Cr.P.C. wherein he has fully implicated the four applicants. He has also placed reliance on the provisions of section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. However on the point of identification the learned AA.‑G. has candidly conceded that the same is defective in law. We have carefully considered the submission of the learned counsel and the case‑law cited at the Bar. It would be advantageous here to reproduce the provisions of section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act which reads as under: "5A(8): ‑‑An accused person shall not be released on bail by a Special Court or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released." The above provision clearly shows that no Court shall grant bail in case where scheduled offence is alleged if there be material to connect the accused with the alleged crime. Now, therefore, it has to be seen if there is such material available with the prosecution. In the case of State v. Syed Qaim Ali Shah 1992 SCMR 2192 the Honourable Supreme Court while dealing with a bail application in the two cases of Special Court under the Act has been pleased to hold that if two views of the provisions of a Penal Statute are possible then one which favours on accused person be preferred over the other. In the same case it has also been held by the Honourable Supreme Court that High Court has the power to press into service the provisions of section 497, Cr.P.C. with its provisos during the pendency of trial before the Special Court. It has further been held in the same case that section 561‑A, Cr.P.C. can be pressed into service in appropriate case. Keeping these principles in mind we shall proceed to examine the material on record which has been relied upon by the prosecution to show the involvement of present applicants in the case. The case of the prosecution is that the said Muhammadi was kidnapped on 22‑10‑1993 and was recovered from the custody of the abductors on 12‑3‑1994 by the Army Personnel from the place which does not belong to any of the present applicants. The statement of the abductee was recorded on 12‑3‑1994 under section 161, Cr.P.C. In this statement he does not implicate the present four applicants but has given the names of four other persons i.e. Latif, Gul Hassan, Soofa and Bhaoo. These named four persons have been shown as absconders in the challan. In this statement on 12‑3‑1994 there is no mention of demand of money but all that is said is that his signatures were obtained by the above‑named persons on some papers. Again a second statement of abductee under section 161, Cr.P.C. was recorded on 17‑3‑1994 by the Police. The learned Assistant Advocate‑General has argued that the need for recording second statement arose because the first statement was recorded immediately after the release of abductee and that he was not its proper state of mind at that time. The counsel for the applicants have argued that in fact the need had arisen for the second statement for the reason that the prosecution wanted the abductee to implicate the present applicants who were by that time arrested by the police. Applicant Altaf was arrested on the night between 11th and 12th of March, 1994 while other three applicants were arrested on 17‑3‑1994. Applicant Dost Muhammad was arrested from C.I.A. Centre, Hyderabad where he was detained since 12‑3‑1994 in a case under section 13 D, Arms Ordinance. The counsel has further submitted that the abductee did not oblige the prosecution and did not implicate the present applicants. The learned A.A.‑G. has not been able to contradict this fact. All this time the applicants had been kept in custody at the police station. Again on 20‑3‑1994 the abductee was taken by police for recording his statement under section 164, Cr.P.C. and for identification parade. This time the abudctee obliged the Investigation Authorities and implicated the four applicants? Now, it may be observed that applicants were not implicated by the abductee in his first two statements recorded after a gap of 1 and 5 days of his recovery and this was sufficient time for him to reflect and be in settled state of mind. Then why suddenly on 20‑3‑1994 he implicates the applicants? In the case of Muhammad Iqbal v. The State 1984 SCMR 930 the Honourable Supreme Court has held that in a case where statement of witness is recorded 15/20 days after the incident then the reliability of such witness is always questionable. Also in case of Syed Kamranuddin v. The State 1994 PCr.LJ 561, a Division Bench of this Court while deciding a bail application of a case of scheduled offence has held as under: "The facts enumerated above, clearly indicate that the case against the applicant requires further inquiry. As has been pointed out earlier, the name of the applicant neither transpired in the F.I.R. nor in the statements originally recorded under section 161, Cr.P.C. by the police. The challan filed in the Court itself shows that the statements of the witnesses in which the applicant was shown as co‑accused in the case were recorded by the police after the applicant had allegedly admitted to have committed the said offence. No doubt, guilt of the applicant, if any, will be established after the conclusion of the trial but the circumstances of the case clearly indicate that the case requires further inquiry which entitles the applicant to grant of bail." Yet another case Bakhshal v. The State 1990 PCr.LJ 1 another Division Bench of this Court has held as under: ""There is no satisfactory explanation for delayed recording of police statement of this witness and delay is not satisfactorily explained then it would be open to adverse inference that delay was used to bring statement of that witness in line with prosecution case. Evidence of such witness cannot be given sanctity as is generally given to the evidence of a witness whose statement is recorded promptly without delay. Reference can be made to the case of Asfandyar v. State PLD 1978 Pesh. 38." In the present case also there is no explanation forthcoming as to why the statement under section 164, Cr.P.C. was recorded after a delay of 8 days. Admittedly on 17‑3‑1994 the abductee was in a fit state of mind but yet his 164, Cr.P.C. statement was recorded three days thereafter. The only inference that can be drawn is that on this date the abductee was not prepared to oblige the prosecution by implicating the present applicants. Such delayed statement of abductee, therefore, cannot be accepted on its face value unless its worth is tested in cross‑examination. Now, we take up the identification parade wherein the applicants are said to have been picked out by the abductee. Admittedly the identification was held on 20‑3‑1994 after a delay of 8 and 3 days of the arrest of applicants. The counsel for applicants have challenged the evidentiary value of the f identification on the grounds that the same is delayed mixing of accused with same dummies is against the principles of law and is violative of Rule 26.32 of Police Rules, 1934. The counsel for applicants have placed reliance in the case of Ghulam Nabi v. The State 1992 PCr.LJ 1852 and Abdul Rashid and another v. The State PLD 1989 Kar.

42. In these cases it was held that identification of accused held after 3 to 5 days of their arrest when admittedly they were detained at police station did not have any evidentiary value. It is also admitted by the learned AA: G. that the identification parade of the four applicants was held separately but at the same time, one after the other and the same set of 10 dummies was mixed with each applicant. The third ground in respect of identification taken by the counsel for applicants is that the same is violative of Police Rules, 1934. Rule 2632, clauses (a) and (c) lays down:‑‑‑ "2632: ‑‑(a) The proceedings shall be conducted in the presence of a Magistrate or Gazetted Police Officer, or, if the case is of great urgency and no such officer is available, in the presence of two or more respectable witnesses not interested in the case, who should be asked to satisfy themselves that the identification has been conducted under conditions precluding collusion; (b)

(c) identification shall be carried out as soon as possible after the arrest of the suspects; (d)

In the present case the A.S.I. and the constable of the same police station who are subordinate to the Investigating Officer have acted as Mashirs of identification. The learned AA.‑G. when confronted with the above situation conceded that the identification parade as held in the present case is defective and is not in accordance with law. In view of the above discussion we are of the considered view that this is a case which requires further enquiry and the applicants are entitled to grant of bail. Accordingly we allow these bail applications and direct the applicants to be released on bail subject to their furnishing surety in the sum of Rs.2,00,000 each with one surety and P.R. Bond each in the like amount to be furnished to the satisfaction of the trial Court. These are the reasons for the short order announced by us in Court on 6‑7‑1994. N.H.Q./S‑1111/K Bail granted.