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Criminal Petition for Special Leave to Appeal No. 310 of 1978, decided on 17th August 1978.

(On appeal from the order dated 12th July 1978, of the Lahore High Court passed in Criminal Miscellaneous No. 1722 of 1978).

----S. 497‑Bail‑Names of accused not mentioned in F. I. R.'‑No incriminating article recovered from them‑Accused also not identified in any identification parade‑Contention that accused being known to complainant no necessity arose for holding identification parade, held, of no avail for if accused were already known to complainant their names ought to have been mentioned in F. I. R.‑Case, held, one of further inquiry and accused petitioners entitled to bail.

S. M: Idrees, Advocate Supreme Court and Sh. Abdul Karim, Advocate- on‑Record for Petitioner.

Mufti Nazar Muhammad, Advocate for the State.

Date of hearing : 17th August 1978.

‑This order will dispose of two connected petitions, namely, P. S. L. A. No. 310 of 1978 and P. S. L. A. No. 311 of 1978 as both of them are directed against a common order of the Lahore High Court dated 12‑7‑1978, cancelling the bail allowed to the petitioners by the Addl. Sessions Judge, Lahore.

The facts of the case as disclosed in the F. I. R. are that on the night between 29/30‑6‑1977 at about 11‑30 p. m. Muhammad Sharif complainant, a fruit seller, was returning home along with two brothers, Iqbal and Ashraf, after closing his business. When they reached the crossing of Streets Nos. 106 and 108 near Iqbal Manzil, they noticed a person armed with a shot‑gun coming from Sanda Road. At the same time four other armed persons emerged from Street No. 109. Although the three brothers tried to escape, they were surrounded. by the five gangsters who made them raise their bands and removed Rs. 11,000 from the pocket of Muhammad Sharif complainant and Rs. 1,000 from that of Iqbal. The three brothers were ordered to make themselves scarce and while they were running away, they were fired upon, as a result whereof Sharif and Iqbal received injuries.

Apprehending arrest, the petitioners applied for bail before arrest which was granted by the Addl. Sessions Judge, but it was later cancelled and the petitioners remanded to police custody. The petitioners were thereupon arrested and remained in police custody until 14th July 1978, but nothing incriminating was recovered from them. Thereafter they were remanded to judicial lock‑up. The petitioners along with a co‑accused Muhammad Amin Dar again applied for bail. The Addl. Sessions Judge, Lahore, allowed interim bail to Zahid Hussain (petitioner in P. S. L. A. No. 310 of 1978) on, 28‑7‑1978, while Muhammad Tufail (petitioner in P. S. L. A. No. 311 of 1978) was allowed interim bail on 30‑7‑1978. In so doing, it was observed that they were not mentioned in the F. I. R. and that nothing incriminating was recovered from them despite being in police custody for thirteen days. Both the interim orders were confirmed on 3rd August 1977. Muhammad Amin Dar co‑accused was also allowed bail by the Addl. Sessions Judge, but his case is not before us.

The complainant feeling aggrieved with the orders of bail moved three separate applications in the Lahore High Court for cancellation of bail, and a learned Single Judge by his order dated 12‑7‑1978 cancelled the bail of the petitioners, as also that of Muhammad Amin Dar by his order announced on 12‑7‑1978. The petitioners before us, namely, Zahid Hussain (petitioner in P. S. L. A. No. 310 of 1978) and Muhammad Tufail (petitioner in P. S. L. A. No. 311 of 1978) have alone come to this Court against the said order.

Mr. S. M. Idrees, learned counsel for the petitioners, on their behalf has argued that the names of the petitioners were not mentioned in the F. I. R., nor was any incriminating article recovered from them. Further. they were not identified in any identification parade. The order cancelling their bail, in the circumstances was, therefore, not justified.

Mufti. Nazar Muhammad, learned counsel for the State, did no controvert these facts. He, however, submitted that it was not necessary to get the petitioners identified by holding an identification parade because they were already known to the complainant.

The submission of the State Counsel is of no avail. If the petitioner were already known to the complainant then their names ought to have been mentioned in the F. I. R. The circumstance that their names were not mentioned therein indicates; prima facie, that they were not known to the complainant, otherwise their names would naturally have been mentioned in the F. I. R. On this hypothesis they ought to have been identified in an identification parade. We are, therefore, of the opinion that the case is one of "further inquiry" and the learned Sessions Judge, accordingly, was justified in admitting the petitioners to bail and that the learned Single Judge in the High Court did not exercise his discretion in accordance with the correct principles of law. We would, accordingly, convert this petition into appeal, set aside the order of the High Court dated 12‑7‑1978 and restore those of the Addl. Sessions Judge dated 3‑8‑1978 granting them bail.

The learned State Counsel submits that the petitioners had not appeared before the trial Court on previous dates of hearing. The learned counsel for the petitioners submitted that no intimation of any such hearing was ever given to them. We are informed that the next date of hearing before the trial Court is now fixed for 23‑8‑1978. We direct that the appellants petitioners shall appear before the trial Court on the said date and in the event of their failure to do so the bail allowed to them shall stand cancelled.

Both the appeals are accepted in the above terms.

Appeals accepted.

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