P L D 2008 Lahore 470 (PLP)

MUHAMMAD AKRAM QURESHI, J.

Walayat son of Jewan, petitioner has sought post-arrest bail in case F.I.R. No. 518 of 2006, dated 14-11-2006 registered under section 380, P.P.C. at Police Station Manawala District Nankana Sahib. Later on sections 395/412, P.P.C. were added during investigation.

2. After hearing the learned counsel for the parties, this Court has concluded that the instant case was registered on 14-11-2006. After four months a supplementary statement of the complainant was recorded on 11-3-2007 by Ibrar Khan, A.S.-I./Investigating Officer, stating that he came to know that the petitioner and 16 others had committed the offence of dacoity in his factory. This statement did not disclose the source from which the complainant came to know about the involvement of petitioner and others. On 14-3-2007, Ibrar Khan, A.S.-I. mentioned in case Diary No.11 that Muhammad Saleem and seven others have been arrested by the Factory Area Police in case F.I.R. No. 1149 of 2006, dated 11-12-2006 registered under section 412, P.P.C. On 14-4-2007 Ibrar Khan A.S.-I. wrote Diary No.22 mentioning that the petitioner and three others were arrested in case F.I.R. No. 1435 of 2006, dated 28-10-2006 registered under sections 395/412, P.P.C. at Police Station Tandalianwala. He submitted an application of the transfer of the said accused from District Jail Jhang to his Police Station. He formally arrested the said accused on 15-6-2007 and brought him to his policestation. He never got them identified from eye-witnesses by means of an identification parade held in jail. On 22-6-2007, the petitioner made a disclosure about the recovery of "Farmas" and a consequence of said disclosure got recovered four "Farmas" from behind a petrol pump, which were taken into possession by the police. Said Farmas were never placed before the complainant to ascertain its ownership and establish that recovered "Farmas" were the stolen property. The stance of the learned counsel for the petitioner is that no evidence exists showing petitioner's participation in the alleged dacoity and that the recovered Farmas were stolen property and that these "Farmas" were owned by the complainant and that absence of above evidence puts the case against the petitioner within the domain of further inquiry and that reasonable grounds do not exist to believe that the petitioner has committed the offence under sections 395/412, P.P.C.

3. Resultantly, the petitioner has made out a case for the grant of post-arrest bail. The petition is allowed and the petitioner is admitted to post-arrest bail in the sum of Rs.2,00,000 (two lac rupees) with two sureties in the like amount to the satisfaction of the learned trial Court.

4. Before parting with this order this Court shows its concern over the negligent investigation conducted by Ibrar Khan, A.S.-I. Instant case was registered against unknown assailants. Walayat and his co-accused were apprehended by the police in some other cases. They were already behind the bars from where Ibrar Khan, A.S.-I. secured their custody. In order to establish participation of the petitioner and his co-accused in the present dacoity, holding of Identification parade was necessary. The said Investigating Officer intentionally avoided to get arranged the important event of the identification parade of the accused and thus caused disappearance of important evidence of ocular account of this case. He intentionally did so to help the accused. Dacoity of Farmas was committed in this case, some of the Farmas were statedly recovered by the said A.S.-I. from the alleged custody of the accused. The Investigating Officer was required by law to ascertain whether the Farmas recovered by him were the articles looted from the factory of the complainant during the above mentioned incident. For this purpose the Investigating Officer was legally required to mix these Farmas in some others and get those identified from the complainant but this exercise was never done, and thus at present there is no evidence to establish that recovered Farmas are stolen property. It is a gross negligence on the part of the Investigating Officer.

5. Ibrar Khan, A.S.-I. is guilty of gross negligence of his duty and causing disappearance of evidence. A departmental inquiry must be held in his case and the action taken be intimated to this Court through its Additional Registrar (Judicial).

6. It has become a general tendency in Punjab that in cases of unknown accused the Investigating Officer intentionally avoid to get arranged the identification parade after their arrest. They had made it routine to record supplementary statements of the eye-witnesses containing the fact that they had come to know from reliable source that the persons mentioned in their statements are their accused. They do not mention the source of said information. On the basis of these baseless statements they effect the arrest of the accused persons considering the above mentioned statements as substitution of valuable evidence of identification parade, which is factually incorrect. After recoveries they send the accused to judicial lock up. Even the legal source of converting these recoveries to stolen property is being ignored, which is the height of the negligence of duty on the part of the Investigating Officer.

7. The cases of Qatl-i-Amd, robbery and dacoity are being spoiled by adopting the above stated mode and the habitual dacoits or robbers are being let off. It is a serious affair. The senior officers of the police department are keeping their eyes shut over this serious matter. The prosecution branch is also silent on this serious matter.

8. The Deputy Prosecutor-General complains that the Police Officers face lot of difficulties in the Courts of learned Magistrate and sometimes it become almost impossible to get arrange the identification parades, therefore, a direction may also be issued to the learned Sessions Judges to make the procedure of arrangement of identification parade easier.

9. Let this order be sent to Prosecutor-General Punjab, Advocate-General Punjab, Additional Inspector-General of Police (Investigation) Punjab and all learned Sessions Judges of Punjab, who shall pursue the same and circulate it to all concerned and subordinate Courts and offices for appropriate legal action and observe that:-- (i) In case of unknown assailant the arrested accused must be put to identification parade. ??????????? (ii) Recovered articles must be got identified from the owners. (iii) Recording of baseless statement mentioning the complainant and eye-witnesses have come to know the names of assailants through reliable source should be avoided. (iv) The mature and well-versed Investigating Officers should be deputed to investigate the cases. In this respect the educated persons must be given preference. (v) The process of holding the identification parade in jail should be made easier and in this respect unnecessary hurdles should not be created in the ways of the Investigating Officers. (vi) The process of scrutinizing the challan should be reformed and cases of deficient evidence should not be forwarded to Courts. (vii) Illegalities and irregularities committed by the Police Officials should be brought to the notice of higher Police Officials and strict departmental as well as criminal action under the relevant provisions of law shall be taken against them. (viii) The Prosecutor-General and Prosecutors are reminded their powers under sections 10/12 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006. It is expected that in future they shall make use of these powers effectively to cure above mentioned illegalities/irregularities. M.H./W-12/L????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.