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Criminal Bail Application No. 142 of 1984 decided on 1st March, 1984.

Criminal Procedure Code (V of 1898)--

---S. 497--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(2)--Bail--Offence of Harabah--Accused connected with crime through identification test and his name missing in first information report--Only five dummies mixed with identification test--Such test contrary to law--No reason given for acceptance of such identification test--Nothing incriminating recovered from accused and prosecution case against him requiring further inquiry--Bail allowed to accused.

Raja Qureshi for Petitioner M.I. Memon Add1.A.-G. for the State.

Date of hearing: 1^st March, 1984.

The learned Advocate for the applicant in support of the above application submitted, that the applicant is not named in the F.I.R. and only piece of evidence to connect the present applicant with the crime in question is his identification test, which was held on 17th January, 1984 in which only 5 dummies were mixed and as such case of the prosecution would require further inquiry, at the stage of trial. The learned counsel relied upon cases reported in 1961 Kar. 728 and 1972 P Cr. L J 310. The learned counsel further submitted, that no recoveries at all of any incriminating article was made from tile present applicant.

2. The learned Addl. A.-G. appearing for the State on the other hand submitted, that the identification of the appellant in spite of only 5 dummies were mixed cannot be ignored, although the proportion of dummies is not in accordance with the law laid down by this Court as well as Hon'ble Supreme Court.

3. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the F.I.R. and Impugned order of the learned trial Court.

4. The only link by which the present applicant is sought to be connected with the crime in question, in the absence of the applicant's name in the F.I.R. is his identification test. It is an admitted position, that only 5 dummies were mixed in the identification test in question which is' contrary to the law laid down by this Court as well as Hon ble Supreme Court. The learned. Addl. A.-G. did not give any reasons for accepting such identification test as sufficient to connect the present applicant with the crime in question, in spite of the law laid down this Court and Hon'ble Supreme Court. It is true that companies and robberies have become order of the day, but such a fact by itself should not disentitle applicant for grant of bail, if the prosecution case against him for being connected with the robbery in question would require further inquiry, at the stage of trial. In my opinion the prosecution case against the present applicant would require further inquiry as nothing incriminating was recovered from him and the identification test in which he was picked up by 3 P.Ws., the mixing of dummies was not in accordance with the rule laid down by this Court in various cases and even by Hon'ble Supreme Court in certain cases.

5. Therefore I allow the above application and direct that the applicant be released on bail on his furnishing surety in the suns of Rs.50,000 with P.R. bond in the like amount, to the satisfaction of the learned trial Court,

6. Any observations made by me on the merits of the case are tentative and as such shall not be binding on the learned trial Court. In case prosecution is able to bring any evidence on record so as to attract the offence of Haraba, the learned trial Court will be at liberty to cancel the bail granted to the applicant.

7. The copy of this order be sent to I.-G. Police, Karachi, as in this and other three cases, where the investigation police have failed to observe the law laid down by this Court and Hon'ble Supreme Court regarding identification tests.

M. Y. H.

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