2001YLR617 (PLP)

S. 497

Penal Code (XLV of 1860), Ss.302, 460, 337-H (ii), 147, 148 & 149-- Bail, grant of

F.LR. had not mentioned any of the accused nor their description given and it was only stated therein that accused would be identified if seen again

Identification of the accused persons was held two days after their arrest

F.LR. showed that amongst five armed persons, the person with Kalashnikov had fired

Was not clear as to whether the person arrested had the Kalashnikov with him or was it with any other person

While granting bail, it had to be seen whether prima facie a case had been made out-- Neither any name was given in F.LR. nor any description of the accused persons was given, mere reliance on an identification that too after a delay of two days from the arrest of the accused, would create doubt and become the case of further enquiry

Bail, was granted to the accused, in circumstances. Mir Hazar Malik v. The State 1999 SCMR 1377; Mehmood Ahmad and 3 others v. The State 1995 SCMR 127; Mansoor Ahmad Bhatti v. The State 1976 SCMR 366 and Habibur Rehman and another v. The State 1994 PCr.LJ 1773 ref. Muhammad Ayaz Soomro for Applicants. Muhammad Ismail Bhutto for the State. This incident relates to Crime No.67 of 2000, Police Station Ratodero. The offence seems to have been committed in the middle of the night on 1st June, 2000. It seems that the complainant and his brother woke up in the middle of the night and on the electric bulb light saw five armed persons who were trying to take away the cattels, the brother of the complainant cried thief. The person who had Kalashnikov fired directly at Muhammad Hashim and he fell down. The neighbours gathered and all the accused ran away. In the F.I.R no mention has been made of any of the accused nor any description has been given of the accused. The only mention is that they would be identified if seen again. It seems that the accused were arrested on 22-7-2000 and identification was held on 24-7-2000. Even though according to the F.I.R there were five armed persons. It is stated that . the person with Kalashnikov tired. It is not clear as to whether the person arrested had the Kalashnikov with him or was it any other person. The counsel for the applicant/accused has relied on the case of Mir Hazar Malik v. The State (1999 SCMR 1377). In this case the name of the accused did not originally transpire in the F.I.R. He was subsequently involved in the commission of the crime. Honourable Supreme Court granted bail. He has also relied on the case of Mehmood Ahmad and 3 others v. The State (1995 SCMR 127). In this case there was more than two hours' delay in lodging F.I.R. Furthermore it was observed that mere identification through identification parade without attribution of a role had no evidentiary value. In the case of Mansoor Ahmad Bhatti v. The State (1976 SCMR 366). In this case the Hon'ble Supreme Court held that the petitioner was not named as an assailant in the F.I.R hence entitled to bail. The counsel also relied on the case of Habibur Rehman and another v. The State (1994 PCr. LJ 1773) where the persons were put to identification parade after three days of being in police custody. It was held that the possibility of police getting involved with the complaint could not be ruled out as any identification of any accused had to be done forthwith upon the arrest and without further delay. It is by now well-settled that at the time of granting the bail it has to be seen whether prima facie a case has been made out. In spite of name not being mentioned and no description given in the F.I.R. mere reliance on an identification that too after a delay of two days after the accused were arrested creates doubt and becomes the case of further enquiry. Bail was granted in the circumstances by short order, dated 30-3-2001. These are the reasons for the same. H.B.T./M-166/K Bail granted.