' SHAHID ANWAR BAJWA, J.---An F.I.R. Was registered at Police Station Jamshed Quarters Karachi on 6-10-2008 at 1340 hours in respect of an incident alleged to have taken place on 30-9-2008 at 1400 hours. It was stated in the F.I.R. That two labour contractors with one cheque each for Rs,One Million each went to the bank from where they collected Rs,Two Million. After collecting the amount while they were going back, four persons on two motorcycles came and fired upon the contractors as a consequence of which one contractor Mohammad Ramzan and driver Wakeel received injuries.
Two boys came to other contractor Manzoor Hussain, slapped him and escaped after taking Rs,1.5 Millions. Injured persons were taken to Abbasi Shaheed Hospital. Then they came to Police Station 6 days after the incident and lodged the F.I.R. Challan was filed on 6-11-2008 in which 14 witnesses are specified. Learned counsel for applicant made the following submissions: I. Investigating Officer as stated in Entry No,35 made at Police Station on 30-9-2008, stated that came back from Abbasi Shaheed Hospital. Letter had been was given to him for recording statement of injured persons but the injured persons had left hospital.
' He further stated that injured persons were stated to be residents of Fareed Colony but he could not find them there. Learned counsel referred to Medicolegal centre report in which address is mentioned as L-338, Sector 10 as the address of one person and Fareed Colony, Orangi Town as the address of other person. II. Applicant was already behind the bars and no identification parade was held. III. After 16 days of incident and after 10 days of lodgment of F.I.R. Statements under Section 164, Cr.P.C. Were recorded. In the statement of Muhammad Ramzan, he stated that nobody from police came to hospital. He also stated that he recognized the co-accused Adnan but did not recognize Asif at the Police Station. He further pointed out from statement of Wakeel Hussain who stated that a policeman came. IV. Learned counsel contested with station diary of the Police Station.
V. Earlier Bail Application No,154/ 2009 was withdrawn on 19-2-2009 and it was ordered that statements of two injured persons/witnesses be recorded within three months and thereafter present applicant would be at liberty to file fresh bail application. VI. That an amount of Rs,3,60,000 is alleged to have been recovered from residence of applicant. Address stated in the recovery memo is Metrovile III, Scheme No,33, House No,1674. Whereas, address of applicant as recorded in the Challan is House No, 164, 37-B, Landhi No, 1.
VII. Learned counsel for applicant submits that no weapons alleged to have been used has been recovered from the applicant. VIII. Applicant has been behind the bars for more than a year and there is no direct evidence available against him. IX. Facts that earlier bail application which was withdrawn means that under the law earlier bail application was never filed.
2. Learned Assistant Prosecutor General referred to Page 61 of the case file which is examination- in-chief of one of the injured persons in which he stated that the accused present in Court the same persons, who robbed him.
3. I have considered submissions of learned counsel and have also gone through the record.
4. The reasons recorded by the trial Court for rejection of bail application on August 3,2009 are as under:-
5. Though the name of the applicant is not mentioned in the F.I.R. But there appears direct evidence against the applicant with regard to robbery. The police also recovered an huge amount of Rs,3,60,000 on the pointation of present applicant, which is also a strong piece of evidence against him. Further the recovery of the huge amount of Rs,3,60,000. The name of the applicant is specifically mentioned in the F.I.R. With his specific role. Further the witnesses in their evidence recorded before this Court fully supported the case of prosecution, hence as per circumstances of the case prim facie there is sufficient evidence available on record against the applicant/accused"
5. There are five aspects of the matter, which should have been considered by the trial Court.
(i) Although incident occurred on 30-9-2008 but F.I.R. Was lodged on 6-10-2008. Present applicant had been arrested on 5-10-2008 in connection with some other alleged offence.
(ii) No identification parade was held.
(iii) Name of present applicant is not mentioned in the F.I.R.
(iv) Only thing that has been recovered is amount of Rs,3,60,000 and that too from place which is not address of present applicant.
(v) There is no recovery of balance amount which about Rs,1.3 Millions; no explanation as to how this amount disappeared and no recovery of any arms and ammunition; not even mention of number of motorcycles allegedly used for committing alleged offence.
6. No identification parade was held. Present applicant had already been arrested and then after five days of incident and then complainant in Police Station said that yes; this is the same person.
7. In a situation where accused is not named in F.I.R., it has been held by the honourable Supreme Court in Farman Ali v. The State 1997 SCM R 971 as unde:- "Holding of identification test becomes necessary in cases, where names of the culprits are not given in the F.I.R. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits"
8. It may not be out of place to mention that in Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCM R 1410, a Five Members Bench of the honourable Supreme Court after referring to Farman Ali case has observed that memory of witness fades away with passage of time and it is necessary that suspect should be identified at the earliest possible opportunity. It was noted in that case that witness did not give description of accused such as any identification mark etc. Structure of the accused so that they were fat or thin or fair coloured or black coloured. In absence of such description, The honourable Supreme Court held it is not possible to convict an accused on the basis of single identification in which possibility of mistake could not be excluded.
7. In the present case only description stated in F.I.R, is "four persons came, who fired on us, they had fair complexion and aged between 25/27 years". In presence of such sketchy description a proper identification parade should have been held.
9. No identification parade was held. Present applicant had already been arrested and then after five days of incident and then complainant in Police Station said that yes; this is the same person.
10. The accused has been behind the bars for more than 13 months although order was passed by this Court in earlier bail application that statements of two injured persons be recorded within three months. This order was passed by this Court on 19-2-2009. Statement of one injured person was recorded on 5-S-2009 and statement of other injured persons was recorded on 23-7-2009. In case where accused is behind the bars, it should be realized that liberty of a citizen is being denied to him and therefore efforts should be made to decide the matter at the earliest.
11. It is settled law that even at bail stage benefit of doubt must be given to the accused, I, therefore, admit the applicant to bail for a sum of Rs,300,000 with P.R. Bond and one surety in the like amount to the satisfaction of trial Court.
' Needless to observe that the trial Court shall not, in any manner whatsoever, be influenced by any of the observations while deciding guilt or innocence of the accused before it.