Find a Lawyer

Criminal Bail Applications Nos. 193 and 737 (Kar) and Criminal Suo Motu Revision Application No.48 of 1987, decided on 24th August, 1987.

‑‑‑Ss. 439 & 497(5)‑‑Penal Code (XLV of 1860), S. 392‑‑Revision, suo motu‑‑Cancellation of bail‑‑Accused granted bail by Sessions Court on ground that they were detained by Police without any order of remand and detention as such was unlawful‑‑Order granting bail being a proper exercise of power vested in that Court, suo motu notice for cancellation of bail discharged.

Pir Fateh Muhammad v. Crown P L D 1951 Pesh. 37 and State v. Samiullah Khan P L D 1959 Kar. 157 rel.

‑‑‑S. 497‑‑Bail, grant of‑‑Accused remaining in police custody for seven days and put to identification test thereafter while he had been taken out of custody on two occasions during this period for remand before Magistrate‑‑No explanation given by prosecution for delay in holding identification test‑‑Case property recovered from accused was only currency notes which were in common circulation and it was yet to be ascertained that currency notes recovered from accused were same which were allegedly robbed from house of complainant on date of incident‑‑Held, case against accused was one of further enquiry‑‑Bail granted in circumstances.

Muhammad Fazal v. The State 1979 S C M R 9 ref.

Ali Ahmad v. The State NLR 1981 Cr. L J 587 and Bago v. The State 1984 P Cr. L J 3229 rel.

S. Madad Ali Shah for Applicant.

Qurban Ali Chohan and S. Sarfraz Ahmad, A.A.‑G. for the State.

Date of hearing: 24th August, 1987.

This order will govern the disposal of Cr. Bail Application No. 737 of 1987 and Cr. suo motu Revision No. 48 of 1987. In order to dispose of the above cases it is necessary to mention here the background which led to the issuance of suo motu notices in this case to the 3 accused persons namely, Obaidullah, Abdul Sattar and Muhammad Amir to show cause why their bail should not be cancelled which was granted by the Sessions Judge, Hyderabad.

2. A report was lodged with the police station cantonment, Hyderabad by one Asif Yousuf with regard to a robbery which took place in his house on 4‑1‑1987. It was alleged in We F.I.R. which was lodged on 5‑1‑1987 that on 4‑1‑1987 at about 10‑30 p. m. when he reached his house his mother Mst. Mahmooda Akhtar informed him that at about 7 p.m. while she and her daughter Kauser Parveen were present in the house two persons duly armed with double barrel gun entered the house from the side of lawn and asked her and Kauser Parveen to deliver them the keys. They told the persons that the keys were with the complainant on which both of them aimed their gun at them and asked them to go inside. At that time the two ladies also saw two other persons standing behind them. The accused who were armed got the two ladies first seated in the room and then locked them in the bathroom. They also warned the two ladies not to raise any cries. After sometime Mst. Mahmooda Akhtar found that household articles were scattered all over the room, boxes and almirahs were opened. The two ladies then raised cries which attracted Manzoor Bhutto and Muhammad Ashraf and many others who opened the door of the room where these ladies were locked from outside. The two ladies then narrated the whole incident to the witnesses. The complainant then checked the household articles and found that various household articles, gold ornaments and cash were missing. The description of the two accused who were armed with gun are given in the F. I. R. which was described to the complainant by Mst. Mahmooda Akhtar. The description of the other two accused who were accompanying the two armed bandits is also given in the F.I.R.

3. Accused Obaidullah, Abdul Sattar and Muhammad Amir were arrested by the police on the next day of incident and recovery of several robbed household articles were made from them. However, the present applicant Akhtar Muhammad was arrested on 8‑2‑1987 after about a month of the incident. After arrest of the present applicant he was produced before a Magistrate on 9‑2‑1987 for obtaining remand for 4 days and thereafter he was again produced before the Magistrate on 12‑2‑1987 for obtaining a further remand of 4 days. He was then put to identification test on 15‑2‑1987 and, thereafter, a sum of Rs.5,800 alleged to be the robbed amount as well as the amount which he allegedly received as a booty out of the robbery made on 16‑2‑1987 was recovered from him. The bail application of this applicant came up before me at Hyderabad on 26‑4‑1987 when it was contended before me by the learned counsel for Akhtar Muhammad that the case of his client was at par with the case of Obaidullah, Abdul Sattar and Muhammad Amir, who were already enlarged on bail by the Sessions Judge, Hyderabad and as such it was contended by the learned counsel that on the principles of consistency in the case his client was also entitled to grant of bail. After hearing the learned counsel for Akhtar Muhammad I was not satisfied as the grant of bail by the learned Sessions Judge to other 3 accused in the case namely Obaidullah, Abdul Sattar and Muhammad Amir prima facie was not proper as they were arrested on the next day of the incident and recovery of the robbed household articles were also made from them. On consideration of these facts I directed that notices be issued to Obaidullah, Abdul Sattar and Muhammad Amir to show cause why the bail granted to them by the Sessions Judge, Hyderabad, should not be cancelled. Accordingly notices were issued to them and the case against them has been registered as a suo motu Cr. Revision application No.48 of 1987.

4. I have heard the learned counsel for Obaidullah and the accused Abdul Sattar and Muhammad Amir who are in person besides the learned counsel for Akhtar Muhammad and the learned A.A.‑G. in the above‑cases. It is quite clear after hearing the learned counsel that although the above‑named 3 persons Obaidullah, Abdul Sattar and Muhammad Amir were arrested in the case on the next day of incident namely 5‑1‑1987 and recovery of robbed articles were also made from them but until the decision of the bail application by the learned Sessions Judge, no remand of these persons from any competent Court was obtained. The learned Sessions Judge, therefore, granted bail to the above named 3 persons on a purely technical ground that their detention with the police was not authorised by law. In support of the contention that where a person arrested by the police is not in lawful detention the Court has power to grant bail, learned counsel for Obaidullah has cited the case of Pir Fateh Muhammad v. Crown PLD 1951 Peshawar 37. In that case after the arrest of the accused a remand for 15 days was obtained which expired on 2nd May, 1951. After the expiry of remand period no further remand of the accused was obtained from any competent Court. The learned Judge who granted bail to the accused held that as the custody of the accused after 2nd May, 1951 was not authorised and he was not produced before any competent Court for obtaining further remand he was entitled to grant of bail and consequently the accused was enlarged on bail in that case by the Court.

5. To the same effect are‑the observations in a Full Bench decision of this Court reported as the State v. Samiullah Khan P L D 1959 Kar. 157. Learned counsel for the State is unable to point out any case‑law to the contrary. In view of the above legal position I am satisfied that the grant of bail by the learned Sessions Judge to Obaidullah, Abdul Sattar and Muhammad Amir on the ground that they were in the detention by the police without any order of remand which was unlawful was a proper exercise of the power vested in that Court and I accordingly discharge the suo motu notices issued to Obaidullah, Abdul Sattar and Muhammad Amir, for cancellation of bail granted to them by the learned Sessions Judge, Hyderabad.

6. In so far accused Akhtar Muhammad is concerned, learned counsel for the applicant firstly contended that on the principles of consistency his client should also be enlarged on bail as the 3 other persons in the same case against whom the allegations and a prima facie case is more stronger have already been enlarged on bail by the learned Sessions Judge. In support of his contention the learned counsel has cited the case of Muhammad Fazal v. The State 1979 SCMR 9. However, after hearing the learned counsel for the applicant and going through the above‑cited case I am of the view that the case relied by the learned counsel is of no assistance to him in the circumstances of present case. In the case before me the 3 other accused have been enlarged on bail by the learned Sessions Judge not on merit but on the ground that their detention by the police without a proper order of remand was unlawful and in these circumstances they were held entitled to grant of bail. No such circumstance exists in the case of accused Akhtar Muhammad. It is conceded by the learned counsel for the applicant that in so far his client was concerned he was arrested on 8‑2‑1987 and on the next day i.e. 9‑2‑1987 he was produced before a Magistrate who granted a remand of the present applicant for 4 days. After the expiry of the period of remand he was again produced before the Magistrate on 12‑2‑1987 and a further remand of 4 days was obtained for him. In these circumstances, in so far the detention of accused Akhtar Muhammad with the police was concerned it was fully authorised under the law and did not suffer from such defects which were obvious in the cases of other 3 accused. Learned counsel however, also contended that his client is entitled to bail on merits. He contended that his client was arrested in the case after about a month of the incident and in spite of the fact that he was twice taken out of the custody by the police for the purposes of remand before a Magistrate on 9th and 12th February, 1987 respectively but he was not put to identification test until 15‑2‑1987. It is accordingly urged that in the absence of a plausible reason for not putting the accused to identification test immediately after his arrest the benefit of doubt which has arisen on account of 7 days delay in holding the identification test should go to the accused. The learned counsel also contended that the Mashirnama of the identification test was prepared by the ASI who was the Investigating Officer in the case and it was only counter‑signed by the Magistrate who supervised the identification parade which vitiated the validity of identification test of the accused and any benefit of doubts arising there from should also go to the accused. The contentions raised by the learned counsel for Akthar, Muhammad are not without force. From the police papers produced by the learned A. A.‑G. in Court it is quite clear that the Mashirnama of identification test was signed by ASI who was the Investigating Officer in the case. The learned A.A.‑G. is unable to explain the reason for the signature of A.S.I. on the document. In the case of Ali Ahmed v. The State NLR 1981 Cr. L J 587 a learned Single Judge of this Court refused to accept the validity of an identification test in similar circumstances and granted bail to the accused in that case. The learned A.A.G. is unable to distinguish the above case or to advance any argument to pursuade me to take a contrary view. Similarly in the case of Bago v. The State 1984 P Cr. L J 3229 another learned Single Judge of this Court (as he then was) found that the delay in holding identification test of the accused for 15 days in police custody made his identity and connection with the crime doubtful. Thus, question of his implication in the crime required further enquiry. In the case before me applicant Akhtar Muhammad was put to identification test after 7 days of his arrest by the police while he was taken out of the custody on two occasions for remand before the Magistrate during this period. There is no explanation available in the police papers for this delay in holding the identification test of the accused except the bare statement of the learned A . A . ‑G . that it took time for the police to locate the witnesses in the case who were to identify the accused in the identification test. It is also contended by the learned counsel for Akhtar Muhammad, additionally that the property recovered in this case are currency notes which are in common circulation and, therefore, it is yet to be establishes that the currency notes recovered from the applicant are the same which were allegedly robbed or. 4‑1‑1987. After considering the above arguments of the learned counsel I am of the view that the case of the applicant Akhtar Muhammad at this stage needs further enquiry and I accordingly admit him to bail in the sum of Rs.50 thousand with one surety and PR in the like amount to the satisfaction of the trial Court.

7. The bail application as well as Suo Motu Cr. Revision Application are accordingly disposed of.

M.Y.H./164/A.K. Bail granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.