2000 PLP 80 (YLR)

(d) Qanun-e-Shahadat (10 of 1984)

Art.22

Identification parade

Scope-- Where names of the culprits were not mentioned in the F.LR. identification parade was necessary

Holding of such test was not only a check against false implication, but was also a good piece of evidence against genuine culprits. Muhammad Aslam Sheharyar and Ch. Iftikhar Ahmad for Petitioner. Maqbool Ahmad Qureshi for the state. Date of hearing: 28th September, Dr. Khadim Hussain Chaudhri resident of House No.l Main Road, Salamatpura, Lahore got recorded F.I.R. No.171, dated 14-6-1999 at Police Station, Harbanspura, Lahore under section 392, Pakistan Penal Code wherein he alleged that he carried on part-time Medical Practice in his house from 6-00 p.m. to 9-30 p.m. On 14-6-1999 at 8-30 p.m. three young persons entered his Clinic out of whom one posed to be a patient and informed that he was suffering from renal colic. In the meantime the remaining two young persons brought out the pistols, put the same on his temple and restrained him from raising the alarm. They removed Rs.400 from his pocket who forcibly and dishonestly took into their possession gold ornaments weighing 5 Tolas, V.C.R., Tape Recorder and Rs.5,000 (Rupees Five Thousand only) from inside his house. He narrated the features of those three young persons in the First Information Report.

2. The law was set in motion. The investigation was under process. Dr. Khadim Hussain Chaudhri complainant got recorded his supplementary statement on 10-7-1999 before Muhammad Anwar, S. I. wherein he stated that he searched for the accused persons, that the respectables of the area informed him that Tahir Mahmood, Amjad Ali and Tariq Mahmood were the persons who committed the dacoity, that he could identify those three persons and that in case they were arrested and interrogated they would lead to the recovery of the stolen property. Tariq Mahmood has been arrested who did not lead to the recovery of any property. Tahir Mahmood' and Amjad Ali co-accused are said to have jointly led to the recovery of Tape Recorder and gold ornaments which were identified by Dr. Khadim Hussain Chaudhri complainant.

3. The bail application of Tariq Mahmood petitioner has been dismissed by the learned lower Courts who has filed this petition before this Court with the same desire.

4. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. Learned counsel for the petitioner argued that the F.I.R. was registered on 14-6-1999 while the supplementary statement was recorded on 10-7-1999 and even therein it is incorporated that some of the respectables of the area, not named therein, informed him about the names of the accused. He added that the supplementary statement cannot be treated as a part of First Information Report which has failed to muster the desired effect to connect Tariq Mahmood petitioner with the occurrence especially when the Identification Parade in respect of the accused persons has also not been conducted. He continued that the joint recovery of the stolen property at the instance of the two co-accused cannot be treated as a corroborative piece of evidence against Tariq Mahmood petitioner-accused. He laid the emphasis that the involvement of Tariq Mahmood petitioner-accused is a question of further inquiry who is entitled to be admitted to bail. On the contrary learned State Counsel argued that the name of Tariq Mahmood petitioner-accused is entered in the supplementary statement of Dr. Khadim Hussain Chaudhri complainant and that he stands connected with the occurrence which is heinous in nature.

5. I would express that Tariq Mahmood petitioner has been arrested on the supplementary statement of the complainant recorded on 10-7-1999 while the complainant got recovered F.I.R. on 14-6-1999 at 9-30 p.m. as the occurrence took place on 14-6-1999 at 8-30 p.m. A perusal of the supplementary statement has made out that some information is said to have been imparted by the respectables of the area that the petitioner was the accused alongwith Tahir Mahmood and Amjad Ali co-accused. Neither the source of information and the names of the respectables of the area have been mentioned therein the said supplementary statement, nor the statements of the respectables of the area have been recorded by the Investigation Officer under section 161 of the Code of Criminal Procedure. The aforesaid type of general allegation contained in the supplementary statement cannot be termed to be sacrosanct so as to connect Tariq Mahmood petitioner accused with the occurrence especially when no recovery of any incriminating article has been attributed to him. I am tempted to express my view that the supplementary statement of the complainant cannot be read as a part of the First Information Report. It shall not be out of place to observe that the First Information Report is the document which is entered into a Book/Register maintained at the Police Station under Rule 24.5 of the Police Rules, 1934 and the statement of the complainant is entered therein under section 154 of the Code of Criminal Procedure on the basis of which the law is set into motion. It is, thereafter, that the investigation is started by the police under section 156 of the Code of Criminal Procedure. Consequently it can be recorded and expressed with confidence that any further statement of the first informant/ complainant recorded during the investigation by the police would neither be equated with First Information Report nor read as a part of it so as to be treated as a corroborative piece of evidence. In this regard I place the reliance on Falak Sher alias Shera v. The State (1995 SCMR 1350) wherein it has specifically been held that supplementary statement of the complainant is not a part of the First Information Report and, thus, is of no legal force. I would express that supplementary statement, if considered a statement under section 161 of the Code of Criminal Procedure, is liable to be ignored being pertaining to the same facts incorporated in the F.I.R: About another ingredient/fact like recovery of any incriminating article/case property afterwards at the instance of accused, attested by complainant, his supplementary statement can be recorded under section 161 of the Code of Criminal Procedure and the same would play the legal role at the time of disposal of bail application as well as the final decision after the trial. It shall not be out of place to express that joint recovery attributed to two co-accused from one room of one house has not to play the legal role against Tariq Mahmood petitioner-accused.

6. Learned counsel for the petitioner has rightly pointed out that in the absence of the holding of the Identification Parade, the petitioner cannot be retained in the judicial lock-up. The Identification Parade is relevant and conducted under Article 22 of the Qanun e-Shahadat Order, 1984. Legally the Identification Parade is necessary where the names of the culprits are not mentioned in the F.I.R. I hold the view that the holding of such test is not only a check against false implication, but is also a good piece of evidence against genuine culprits. Since this aspect of holding of Identification Parade in the police investigation stands eclipsed, the petitioner shall acquire the legal benefit of this laxity on the part of prosecution even at the bail stage.

7. The cumulative effect of the aforesaid observations and discussion is that the involvement of Tariq Mahmood petitioner is held to be a question of further inquiry and since the bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure, it is proper to admit him to bail than to retain him in jail.

8. I, therefore, accept this application and admit Tariq Mahmood petitioner to bail in the sum of Rs. 50,000 (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. Q.M.H./M.A.K./J-80/1