2011 PLP 2252 (YLR)

ATTAULLAH KHAN, J.

Saddam Hussain and Inamullah, accused/ petitioners have filed this application for their release on bail in case F.I.R. No.432 dated 10-11-2010 of Police Station Tajori, District Lakki Marwat registered under sections 411/120-B, P.P.C. read with section 17(4) Haraba.

2. Succinct facts of the case are that complainant Khalid Anwar reported to the police along with corps of his father in emergency room of Civil Hospital, Naurang, on 10-11-2010 at 20-50 hours that on the evening of occurrence he along with his father were taking his grandfather Daqas Khan to the Civil Hospital, Bannu due to his ailment riding through Motorcar bearing No.4215/LHF driven by Zainullah son of Mashal Khan. His father armed with .12 bore shotgun was boarded on front seat and he along with his grandfather were boarded on the rear seat of motorcar when they reached at the road near Kotka Michan Khel, three persons armed with Kalashnikovs, one armed with double barrel shotgun .12 bore appeared on the road and intercepted the motorcar. The two persons armed with Kalashnikovs stood at the side of the driver, whereas the person armed with Kalashnikov and other armed with .12 bore double barrel shotgun stood at the side of his father and demanded the key of the vehicle and cash amount from his father but he refused. The two persons stood at the side of his father grappled with him and one of them fired at his father with .12 bore double barrel shotgun due to which he was hit and succumbed to his injuries on the way to hospital. The occurrence was witnessed by driver Zainullah and grandfather beside the complainant. There is no previous enmity of the complainant party, hence the ibid F.I.R. was chalked out.

3. Learned counsel for the accused/petitioner argued that two unknown persons have been charged in the F.I.R. and there is no evidence .on file to connect the accused/petitioners with commission of offence. He further argued that after the arrest of accused/petitioners no identification parade has been conducted.

4. On the other hand, learned counsel for complainant argued that accused was traced by tracker through dog. He further argued that Rizwanullah one of the accused has confessed his guilt before the police.

5. Arguments heard and record perused.

6. Record reveals that the accused/petitioners were arrested on 15-11-2010 and their remand was obtained by the police. Record further reveals that on the pointation of co-accused Rizwanullah one .12 bore shotgun was taken into possession which belonged to accused/ petitioner Saddam Hussain. From the record it appears that co-accused Rizwanullah was examined by police under section 161, Cr.P.C. in which he confessed his guilt along with involving other accused including the accused/petitioners.

7. So we have two pieces of evidence against the accused/petitioners, one in the shape of recovery memo prepared on the pointation of co-accused Rizwanullah vide which .12 bore shotgun belonging to Saddam Hussain was recovered and the second. is the statement of Rizwanullah recorded under section 161, Cr.P.C.

8. As far as the recovery of shotgun is concerned it was pointed out by co-accused Rizwanullah and not by the present petitioners, moreover, there is no proof on record to show that the said shotgun was owned by any of the two petitioners. As far as the statement of Rizwanullah co-accused is concerned it is not admissible in the evidence at the moment and also it is exculpatory saving himself and involving other co-accused in the case. Moreover, it was the duty of the prosecution to conduct identification parade after the arrest of the petitioners in order to enable the complainant to identify the culprits. In similar case where no identification parade was held this Court granted bail, the case reported in 1999 PCr.LJ 198, wherein it is held that the petitioners were not subjected to any identification test nor any incriminating recovery has been made from them.

9. Similar view has been taken incase titled Muhammad Suleman v. Riasat Ali and another reported in 2002 SCMR 1304. In the said reported case the prosecution had failed to hold identification parade and the accused were not nominated in the F.I.R.

10. As far as statement of co-accused Rizwanullah recorded under section 161, Cr.P.C, it has no evidentiary value because the accused making the statement has saved his skin and involved other accused in the case and secondly nothing has been recovered from the petitioners in pursuance or the said statement. Another fact in this case is that three co-accused namely Najeebullah, Ikramullah and Ghazi Marjan have been granted bail having similar role, therefore, rule of consistency is also applicable to the case of present petitioners.

11. In short accused/petitioners are not nominated in the F.I.R., after their arrest no identification parade has been held enabling the complainant to identify them and nothing has been recovered from them. No confession has been made by any of the accused/petitioners. The statement of co-accused Rizwanullah recorded under section 161, Cr.P.C. would also not affect the case of petitioner.

12. Keeping in. view the above facts and circumstances of the case, this application is allowed and the accused/ petitioners are admitted to bail in the sum of rupees two lacs (Rs.2,00,000) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means. H.B.T./71/P Bail granted.