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Criminal Bail Application No.351 of 1980, decided on 17th flay, 1981.

---S.497--Penal Code (XLV of 1860), S.392--Bail, grant of--Identification parade--Memo of identification parade bearing initials of investigating officer--No recovery from accused--Accused arrested after seven months of occurrence--Authenticity of identification parade, held, needed further inquiry--Bail granted in circumstances.

Mohammad Ashraf Kazi for Applicant.

A.A. Mohamadally, Asst. A.G. for the State

In this case the taxi-driver was robbed of his Taxi at 10 p.m. on 30th June, 1979 at the point of the pistol by three persons on the highway. It is alleged that some persons were- present at the stand, where the Taxi was hired by the accused persons and they had seen the accused at 8-30 p. m. The robbery took place on the point of pistol. The car was recovered on 9-7-1979 from the Otaq of one Khuda Buksh. The accused was arrested on 9-2-1980 and he was not put to identification test on 17th of February, 1980 and he was identified by the complainant, the taxi-driver, and one other P.W. Muhammad Ayub.

Mr. Muhammad Ashraf Kazi contends that the identification parade was illegal as it was held in the presence of Investigating officer and the memo of identification has been prepared by the investigating Officer and not by the Magistrate. Counsel relied upon A.I.R,.1934 Lahore 692, where it was observed that an identification parade in the presence of two Head Constables of police was not an identification which could be held to be a fair identification and free from taint.

In this case there is no other evidence against the applicant except the identification parade on the identification test, which was held after 7 months and 15 days of the occurrence. However the more important thing is that this identification test was held after one week of the arrest of the applicant by the police. In these circumstances, it would be necessary to enquiry whether the identification test was a fair test or not. It is correct. that the identification Memo has been signed by the Mukhtiarkar, but the same also bears the signature of A.S.I., Tando Muhammad Khan Police- Station, and therefore, the submission of applicant's counsel appears to be having some justification.

Assistant Advocate General Mr. Mohammadally has submitted that the identification Memo should be relied upon. However, it will be a matter for determination at the trial as to whether the identification parade should be relied upon or not but since the memo bears the initial of the Investigating Officer, therefore, its authenticity needs to be enquired into. The fact that no recovery has been made from the applicant and further the fact that he was arrested after more than 7 months would make the enquiry into the guilt of the applicant more necessary.

I would therefore, order, that the applicant be released on two sureties of Rs.25,000 (Rupees Twenty-Five Thousand) each with P.R, in the amount of Rs.50,000 (Rupees Fifty Thousand) to the satisfaction of the Sessions Judge, Sanghar.

S.A. /A-166/ K Bail granted

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