1997 PCr (PLP)

The applicant/accused is facing trial under section 17(4'), Offences Against Property (Enforcement of Hadd) Order. 1979 under F.I.R. No.128 of 1996, registered at Police Station Azizabad, Karachi. According to the F.I.R., on 1-5-1996 at about 2-45 p.m. the complainant H.C. Sohail Ahmed and P.C. Muhammad Yaqoob were riding on motorcycle No.GT-8758 when they reached near Gulistan-e-Shamim Block 8 near Future Grammer Schooi Federal "B" Area, Karachi. they were fired from the Honda Civic car of light blue colour bearing No.F-546, in which 4 persons were sitting. H.C. Muhammad Yaqoob expired on the spot while the complainant jumped and saved himself. They also took away service SMG-25735 loaded with thirty-five cartridges of P.C. Muhammad Yaqoob. The learned counsel appearing for the applicant/accused argued that the accused/applicant was not arrested on the spot and that the complainant and the accused were not known to each other prior to the incident. No identification parade of the accused after his arrest was conducted. The learned Counsel further argued that the entire prosecution case is based on the disclosure made by the accused/applicant during his police custody, which according to him was not admissible under Article 38 of the Qanun-e-Shahadat. The learned counsel Miss Nasreen War appearing for the State argued that the complainant had identified the accused in the police station and she opposed the bail application. From the record of the case it transpires that the complainant and the accused were not known to each other prior to the incident. In such a situation the identification parade was necessary, more particularly when the complainant had stated that he could recognize the accused. The learned counsel has placed reliance on Miran Bux v. The State 1995 PCr.LJ RR wherein it has been held as under:-- "It appears that the assailants were not known to complainant prior to the occurrence. Admittedly identification parade was not conducted. I think that identification parade was necessary particularly when the complainant and other witnesses present on the scene of occurrence had stated that they could recognize the accused. " Further, the Honourable Supreme Court in a recent case reported in Muhammad Rafique v. The State 1997 SCMR 412 held as under:-- "It has not come on record, as to, why identification test of the petitioner through eye-witnesses was not held when his name did not appear in the F.I.R. Mere production by the petitioner before police of some cash alleged to have been obtained by robbery, in absence of any other evidence. In this respect the observations made in the case of Ishaq Maseeh v. The State (1993 SCMR 1322) are relevant. In the circumstances we convert this petition into appeal, grant bail to the applicant Muhammad Rafique." It is an admitted position that in the present case the prosecution has based its case on they disclosure made by the accused during his police custody, which under Article 38 of the Qanun-e-Shahadat is in admissible and is of no legal value. On this point the relevant case is the case of Muhammad Siddique v. The State reported in 1996 PCr.LJ 1609 wherein it has been held that the confession of an accused before a Police Officer is an inadmissible evidence in view of the mandatory provision of Article 38 of Qanun-e-Shahadat, 1984. Further, admittedly no recovery has been made from the accused/applicant even the alleged SMG-25735, which according to the F.I.R. was taken away by the accused has not been recovered. In view of the above, I am of the opinion that the accused is entitled to bail. The bail application is allowed and the applicant/accused is ordered to be released on bail in this case on his furnishing one solvent surety in the sum of Rs.1,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. N.H.Q./M-183/K Bail allowed.