PLJ 2023 Cr.C. (Note) 71
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), Ss. 392 & 411--Post-arrest bail, grant of--Further inquiry--Allegation of--Two unknown accused persons intercepted, snatched mobile phone and wallet--Petitioner was not named in FIR--Arrested--Test of identification parade--The identification parade has been held after a considerable delay from arrest of accused--Liability of petitioner for said offences would be determined by trial Court after recourse to evidence, till then case of accused would be within domain of Section 497(2) Cr.P.C. calling for further inquiry into petitioner’s guilt as at present, for purpose of connecting petitioner with commission of alleged crime, no substantive piece of evidence is available with prosecution--Identification parade has not been conducted in manner as prescribed, which causes dubiousness on veracity of prosecution story and without having identification parade in prescribed manner petitioner cannot be connected with commission of alleged crime--Petitioner is involved in similar nature of cases suffice it to say that there is no conviction on part of petitioner in such cases, therefore, this argument is of no avail to law officer--Even otherwise, investigation is complete--The person of petitioner is no more required by police for further investigation--He is behind bars since his arrest without any progress in trials--Petition was admitted. [Para 4, 5, 6 & 7] A, B, C, D & E
PLJ 2023 Cr.C. (Note) 25, 2019 SCMR 956, 2008 PCr.LJ 1444 &
2020 MLD 850.
Mr. Shahid Rafiq Mayo, Advocate for Petitioner.
Mrs. Raheela Shahid, DDPP on behalf of State.
Date of hearing: 18.1.2023.
PLJ 2023 Cr.C. (Note) 71
[Lahore High Court, Lahore]
Present: Sardar Muhammad Sarfraz Dogar, J.
ASAD ISLAM--Petitioner
versus
STATE, etc.--Respondents
Crl. Misc. No. 79877-B of 2022, decided on 18.1.2023
Order
Through this petition, the petitioner seeks post-arrest bail in case FIR No. 1072, dated 20.09.2022, offences under Sections 392, 411 PPC, registered at Police Station Sadar Kasur, District Kasur.
2. As per crime report, on 17.09.2022 at about 08:30 a.m, when the complainant while going to Sheikhum, reached Naseer Abad, two unknown armed accused persons intercepted him and snatched mobile phone alongwith wallet containing cash etc., from the complainant.
3. Arguments heard. Record perused.
4. The occurrence was allegedly committed on 17.09.2022 and admittedly, the petitioner is not named in the FIR. The petitioner was arrested being suspect on 28.09.2022 and thereafter he was subjected to the test of Identification Parade on 06.10.2022. The complainant has mentioned the joint role in FIR and has not mentioned the features of any of the accused persons in the FIR. It has been held by learned division Bench of this Court in case titled “Hafiz Imran alias Abbas alias Hamza vs. The State” (2020 MLD 850) that “if no specific role of any assailant including the accused/appellant was mentioned in written complaint and FIR then deposition of any specific role of any assailant or appellant/accused by any witness during identification parade was of no evidentiary value”. Furthermore, as is obvious from the record, the Identification Parade has been held after a considerable delay from the arrest of the accused and it has been held in latest case law titled “Yaqoob alias Qoobi v. The State” (PLJ 2023 Cr.C. (Note) 25) that “... identification parade was held after a delay of 7 days after arrest of accused. This delay creates a lot of doubt regarding identification parade as witnesses had various opportunities to see accused persons……”. Therefore, this fact of non-mentioning of features of accused persons in FIR, solely put the case of the petitioner in the ambit of further inquiry and probe. In these circumstances liability of petitioner for the said offences would be determined by the learned trial Court after recourse to evidence, till then case of accused would be within the domain of Section 497(2) Cr.P.C. calling for further inquiry into the petitioner’s guilt as at present, for the purpose of connecting the petitioner with the commission of alleged crime, no substantive piece of evidence is available with the prosecution.
5. Furthermore, it has also been observed that the identification parade has not been conducted in the manner as prescribed, which causes dubiousness on the veracity of prosecution story and without having identification parade in prescribed manner the petitioner cannot be connected with the commission of alleged crime. Guidance is sought from “Mian Sohail Ahmed and others vs. The State and others” (2019 SCMR 956).
6. As regards contention of learned law officer that petitioner is involved in similar nature of cases suffice it to say that there is no conviction on the part of the petitioner in such cases, therefore, this argument is of no avail to the learned law officer. Reliance is made upon Jafar Hussain alias Joio v. The State (2008 P.Cr.L.J. 1444).
7. Even otherwise, the investigation is complete. The person of the petitioner is no more required by the police for further investigation. He is behind the bars since his arrest without any progress in the trial.
8. Therefore, without further commenting upon the merits of the case, this petition is accepted and petitioner is allowed post-arrest bail subject to his furnishing bail bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.
9. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition.
(A.A.K.) Petition accepted
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