2000 PLP 1303 (YLR)

The applicant has moved this bail application for seeking bail in crime No. 38 of 1998, Police Station Bhan Saeedabad, wherein he has been indicted for offence under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Bail application moved by the applicant before the trial Court was dismissed on 24‑9‑1999. According to the prosecution story on 26‑5‑1999 at 4‑30 a.m. one Ahmed son of Ali Khan lodged complaint at Police Station Bhan Saeedabad stating therein that he is working in Sindh Line as driver on Bus No. R‑345/Hyd. This vehicle runs between Shahdadkot and Karachi. On 25‑5‑1999 at 10 00 p.m. he, Conductor Zulfiqar Kalhoro alongwith passengers proceeded from Karachi to Shahdadkot. On 26‑5‑1999 at 2‑45 a.m. when they reached in between Barahmani Petrol Pump and Khudabad, 7 persons, two duly armed with KKs, two with other guns and rest three with pistols and revolvers stopped the bus by firing, and then three persons from them boarded in it, they robbed the complainant with cash of Rs. 7,500 and also other passengers with watches, golden rings, lockets, cash and tape‑recorder and after commission of robbery they went away. The complainant further stated that the culprits were clearly seen by them and will be identified on seeing. On the basis of this F.L.R. on 18‑6‑1999 police apprehended five persons including the applicant and after investigation submitted that challan before the trial Court on 3‑7‑1999. Mr. Ghulam Haider Baloch, the learned counsel for the applicant contends that the applicant has been falsely implicated in this crime, his name does not appear in the F.I.R. and in spite of specific assertion of the complainant that the accused will be identified on seeing till today no identification parade was held. The learned counsel further contends that no recovery has been effected from the present applicant and the only piece of evidence against the applicant is the foot prints test of the applicant which test was neither in accordance with law nor has any evidenciary value. On the point of foot prints test the learned counsel has placed his reliance on the cases reported as (i) Lakhmir and others v. The State (PLD 1964 (W.P.) Karachi 197), (ii) Shafu alias Sahfi Muhammad v. The Crown (1971 SCMR 200) and (iii) Shafi Muhammad v. The State (PLD 1971 Karachi 721). Mr. Muhammad Azeem Panhwar, the learned State counsel did not controvert the facts that after the arrest of applicant on 18‑6‑1999 till today no identification parade has been held and individually except some currency notes, nothing has been recovered from him, however, opposing this bail application he submits that at this stage deeper appreciation of evidence is not permissible. The applicant is shown to be involved in the commission of a crime which falls within the prohibitory clause of section 497, Cr.P.C. and in such circumstances at this stage he is not entitled for bail. I have considered the arguments advanced before me and perused the relevant record. The perusal of the case record reveals that though the applicant is not named in the F.I.R., but the complainant has specifically stated in the F.I.R. that he has seen the culprits and will be able to identify them on seeing. In addition to this the other P.Ws. Atta‑e‑Mustafa, Muhammad Saleh, Niaz Ali, Bimaldas, Muhammad Hashim, Ghulam Nabi, Ghulam Murtaza, Rajib Ali, Muhammad Ramzan and Bashir Ahmed in their 161, Cr.P.C. statements recorded on 26‑5‑1999 have also stated that they have clearly seen the accused in the light of Bus and will identify them on seeing. All these P.Ws. were the passengers of the robbed Bus and thus, natural witnesses of the occurrence, but inspite of the arrest of the applicant and 4 others accused persons on 18‑6‑1999, till today they have not been put to any identification test through these P.Ws. and there is also no explanation about it. The case record further reveals that under the Mashirnama of recovery dated 19‑6‑1999 recovery of some of the robbed articles was made by the police on the joint pointation of all the 5 accused persons, who according to the Mashirnama of recovery led the police party at some outside place, from where beside the bushes such recovery was made in presence of police Mashirs. In this regard it is relevant to note that at the time of such recovery some weapons have also been recovered, but from other accused persons and nothing has been recovered from the present applicant. Reverting to‑the foot print test of the applicant and 4 others accused persons, it will be pertinent to mention that such test was held more than 23 days of occurrence and for this test of foot print of 5 accused persons, same number of other persons, viz: five persons, were missed in the test. The effect of delay in foot print test has been discussed in the case of Shafu alias Shaft Muhammad v. The Crown (1971 SCMR 200) and their Lordships in the Supreme Court have observed as under: ‑‑‑ "The person who is alleged to have identified the footprints had seen the footprints at the place of occurrence 20 days before he was asked to identify the footprints of the appellant. He had made no moulds of the footprints found at the place of occurrence and he is supposed to have carried an impression of those footprints in his mind for a period of three weeks. Evidence of this description must be totally discarded." In the present case also P.W. Muhammad Soomar has identified footprints of the applicant and four other accused persons from his memory, and thus, on such footprint test much reliance cannot be placed at this stage. 1n view of the above discussed deficiencies in the prosecution case I am satisfied that at this stage there are reasonable grounds to believe that the applicant is not guilty for the offence with which he is charged and the case against him needs further enquiry within the meaning of A subsection (2) of section 497, Cr.P.C. Accordingly this bail application is allowed. The applicant shall be released on bail on furnishing surety in the sum of Rs. 2,00,000 (two lacs) with P.R. Bond in the like amount to the satisfaction of the trial Court. Needless to mention that observations made in this order are of tentative nature and, therefore, the trial Court, while proceeding with the case will be free to form its own view without being influenced with such observations. H.B.T./P‑87/K Bail granted.