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Criminal Bail Application No. 584 of 1981, decided on 12th August, 1981.
-- S. 497-Bail--Petitioner, accused of robbing complainant of two gold bangles and Rs. 70 in cash--Identification test of petitioner, held, with an inordinate and unexplained delay of 25 days after recovery of bangles--Requisite number of dummies as required under law not mixed ---- up with petitioner-Petitioner in custody for last 3 months while investigation over and facts of case disclosing at best an offence of tazir, punishable under Penal Code-Petitioner allowed bail, in circumstances-Offence Against Property (Enforcement of Hudood, Ordinance (VI of 1979), S. 17(3).
S. Aijaz All Shah for Applicants.
Abdul Sattar Shaikh, Addl. A.-G. for the State.
The applicants are being tried for offence under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and it is alleged that they robbed complainant of two golden bangles and Rs. 70 on 10thMay, 1981 at about 11 a. m. Mst. Tahira Begum the victim lodged report on the same day at about I p. m. at Police Station, Joharabad which is at a distance of 2 Kilo meters from the spot. During the investi gation the applicants were arrested after 16 days on 27th May, 1981. It is the case of the prosecution that one bangle was recovered from the (rouse of applicant Khamiso and he while in custody led to the recovery of other bangle froth the possession of other applicant Faiz Muhammad from Hyderabad. Both the applicants are shown to have been arrested on 27th May, 1981 but their identification test was held on 21st June, 1981 after a delay of 26 days of their arrest and on this ground of inordinate delay this piece of identification test is seriously assailed by the learned counsel .for the applicants. It is also submitted by S. Aijaz Ali Shah that after the recovery of stolen property complainant was called to identify the same and at that time the applicant Khamiso was in custody as such it can safely be presumed that applicant was shown to the complainant. On the ques tion of delay in the identification test after the arrest the learned counsel has relied upon P L D 1977 Kar. 695 in which on the ground of delay of seven days in holding identification test which was not explained by the prosecution, the piece of evidence was ruled out of consideration. Similarly reliance was also placed on 1977 P Cr. L J 263 in which on the ground of delay of 15 days in holding identification test the piece of evidence was not relied upon.
The learned counsel also assailed this piece of identification test op, the ground that proper number of dummies were not mixed up with the applicants at the time of identification test. It is submitted by the counsel that while holding identification of two accused persons nine dummies were mixed up while under the law as it is allowed for each accused 10 dummies are to be used. In addition to this it is submitted by the learned counsel that in the instant case the facts are such that the offence is liable to tazir as such would re punishable under the provisions of the Penal Code and the investigation is over and applicants have remained in custody for about three months. In these circumstances as stated above the learn ed Addl. A -G. has also no objection. Admitted to bail in the sum of Rs. 10,000 each with one surety and P. R. in the like amount to the, satis faction of the trial Court.
Bail allowed.
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