1. ' SHAHID ANWAR BAJWA, J.---For reasons to be recorded later, these bail applications were allowed vide short orders, dictated in open Court on 15-2-2012 and the applicant was ordered in the case of Criminal Bail Application No, 856 of 2011 to be admitted to bail upon his executing P.R. Bond for a sum of Rs,200,000 with one solvent surety in the like amount and in the case of Criminal Bail Application. No,857 of 2011, upon executing P.R. Bond for a sum of Rs,50,000 with one solvent surety in the like amount to the satisfaction of the trial Court. Following are our reasons for the short order.
2. ' Facts of Criminal Bail Application No, 856 of 2011 are that F.I.R. No, 173 of 2011 was recorded at Police Station, Moro on 26-5-2011 at 1-00 a.m. For an incident alleged to have taken place two and half hours earlier. Complainant was Police Constable Sher Muhammad. He stated that in the evening, he along with three Police. Constables left Police Station on two motorcycles for patrolling duty and they saw five persons coming on two motorcycles, who were signaled to stop but they tried to flee away. Police party chased them and also called further assistance through mobile. During chase, they reached near link road Gandhi near Toll War stop. Upon seeing Police Picket, accused persons alighted from' their motorcycles.
3. Complainant stated that he identified three accused persons and there were two not identified persons. The applicant is alleged to be one of those not identified persons. When Police party challenged them, they started firing at the Police; positions were taken. Such encounter continued for 20 minutes. One Police Constable was fatally injured and the 'complainant also received injuries in his left arm. Accused managed to escape. The present applicant was arrested on 28-5-2011 and identification parade was held on 2-6-2011 and it is claimed that a pistol was recovered from the present applicant.
4. ' Learned counsel submitted that the applicant has not been named in the F.I.R. And he further submitted that there is five days delay, in conducting of identification parade and all these five days, the applicant was kept at Police Station where the complainant and his witnesses were also posted. As Constables and they had seen the applicant at Police Station. Learned counsel referred to Rule of Police Rules, 1934 and submitted that in the identification parade, these rules were grossly violated because the applicant and the witnesses were not kept separate either at Police Station or when they reached the Court for the purpose of identification parade. He submitted that there is five days' unexplained delay in conducting identification' parade whereas the Rules require that identification parade should be held as soon, as possible after the accused is arrested. He next submitted that there is no description of sthe dummies in the memo of identification and no role of the present applicant has been specified in the identification parade. Learned counsel relied upon Muhammad Ali v. The State, 2002 PCr.LJ 1120, Shafique Ahmed and 4 others v. The State 2002 PCr.LJ 518 and Muhammad Ayaz and others v. The State 2011 SCM R 769.
5. ' Learned A.P.-G. Submitted that this is a case of Police encounter where one Police Constable has lost his life and the complainant has been injured. He submitted that prosecution witness Shafi Muhammad has fully supported the case against the present applicant and, the present applicant has been identified in the identification parade. Learned counsel submitted that delay in conducting identification parade is not material. He relied upon Muhammad Sadiq v. The State, NLR 1995 Cr.L.J 621 and Amanullah alias Mithu v. The State, 1998 SCM R 354. Regarding defects in the identification .Parade, learned counsel submitted that it is a question of deeper appreciation of evidence, which exercise cannot be undertaken at the bail stage. He relied upon Muhammad Aslam v. The State, P.Cr.L.J 914 for his contention that even in .Case of general allegations, bail should be rejected if a 'heinous crime is made out.
6. ' In Criminal Bail Appeal No,' 857 of 2011, case is under section 13(e) of the Arms. Ordinance in respect of pistol allegedly recovered from possession of applicant.
7. ' We have cons the submissions made by the learned counsel and have also gone through the record.
8. ' Identification parade was held on 2-6-2011 at. 3-30, a.m. And the following memo of identification parade was recorded:-- "On 2-6-2011 SIO Moro SIP Arbab Ali submitted application for recording identification parade in respect of suspect (1) Ghulam Shabir son of Ghulam Rasool Korai (2) Roshan son of Ayoob Korai. It was 3-30 p.m. Such application was allowed. Suspects were in muffled faces, which were asked to sit in Clerk office and witnesses were directed to sit in office of ADPP. Suspect disclosed that witnesses had seen them at Police lockup. However witnesses denied. Thereafter, nine dummies were arranged by Clerk of this Court. Suspects were called who stood at No, 4 and No,
6. Thereafter, witness No, I Shafi Mohammad was called through Peon Ghulam Nabi, who identified suspect Ghulam Shabir standing at S. No,4 from right side. However he could not identify the other suspect Roshan Ali Korai. Thereafter, witness No, 2 was called. Suspects were allowed to change their positions. Witness No, 2 identified suspect Ghulam Shabir standing at row No, 7 from right side, however, he could not identify the other suspect Roshan Ali Korai. In this way, identification parade completed at 4-00 p.m."
9. ' Sub rule 1 of Rule 26.32 of the Police Rules in its clause (b), (c) and (d) provides as under:-- "(1) The following rules shall be strictly observed in confronting arrested suspects with witnesses, who claim to be able to identify them.
(b) Arrangements shall be made, whether the proceedings are being held inside a jail or elsewhere, to ensure that the identifying witnesses shall be kept separate from each other and at such a distance from the place of identification as shall render it impossible for them to see the suspects or any of the persons concerned in the proceedings, until they are called up to make their identification.
(c) Identification shall be carried out as soon as possible after 'the arrest of the suspects.
(d) The suspects shall be placed among other persons similarly dressed and of the same religion and social status, in the proportion of 8 or 9 such persons to one suspect. Each witness shall then be brought up separately to attempt his identification. Care shall be taken that the remaining witnesses are still kept out of sight' and hearing and that no opportunity is permitted for communications to pass between witnesses who have been called up, and those who have not. If it is desired, through fear of revenge or for other adequate reasons, that witnesses shall not be made for the former, when called up to stand behind a screen or be otherwise placed so that they can see clearly without being seen."
10. ' So, the first requirement of clause (b) of sub rule is that it shall be ensured that the identifying witnesses are kept separate from each other at such a distance from the place of identification as would render it impossible for them to see the suspects until they are called up to make their identification. There are three facts about this identification parade, which should be noted straightaway. For five days, the applicant was, kept at the same Police Station where the complainant and his witnesses. Were posted. Therefore, possibility of the complainant and the witnesses having seen the applicant at the Police Station cannot be ruled out. Secondly, there is no statement as to how the witnesses reached the Court and as to how the applicant reached the Court. Thirdly, the above underlined part of the memo of identification parade indicates that when the suspect was produced with muffled face, the witnesses were directed to sit the office of ADPP.
11. The suspect disclosed that witnesses had seen them at the Police lockup but the witnesses denied.
12. Prima facie, it appears that such denial Was made in presence of the applicant and even if his face was muffled, clothes and his shoes etc. Must have been seen by the witnesses. In any case, it creates doubt. Thirdly aspect that there is five days' delay and there is no explanation from the prosecution side as to why identification parade was not conducted immediately after arrest and there is no any description of any of the dummies as pointed in specific role.
13. ' In Muhammad Ali's case (supra) there was 10 days' delay in holding identification parade and this delay was not, properly explained and no cogent reason had been given for such delay. This was one of the factors, which weighed with Division Bench of this Court for allowing bail application. In Shafi Ahmed's case (supra) identification parade was held three days after arrest of the accused and this was considered as one of the factors, which persuaded the Single Bench of this Court to grant bail. In Muhammad Ayaz's case (supra) description of 21 dummies was confined only to their names and their parentage. Irregularities in the identification were considered as one of the circumstances for acquitting accused persons. It may be stated here that this was a case of appeal and not a case of bail and, therefore, since depth of consideration at the appeal stage is different from depth of consideration at the bail stage. Not much support can be derived from this authority.
14. ' On the other hand, learned A.P.-G. Relied upon Amanullah's case (supra) where the petitioner was arrested on 8-1-1996 and identification parade was held on 11-1-1996. The case is clearly distinguishable because no explanation for the delay had been provided in the present case.
15. Learned counsel also relied upon Aslam's case (supra) decided by one of us (Ahmed Ali M. Shaikh, J). All that was observed in the reported case was that deeper appreciation of evidence was not permitted at the bail stage, which could only be done at the trial. Case is, therefore, clearly distinguishable. Learned counsel also relied upon Muhammad Sadiq's case (supra). In the reported case, it was observed that in a murder case, accused would not be granted bail where there are no reasons to conclude that he has been falsely implicated. There cannot be any cavil to the proposition. In the present case, the only piece of evidence available to connect the present applicant with the offence is the identification parade. Therefore, what has to be seen is that in the given quality of the identification parade whether at the bail stage, it can be determined that the applicant is entitled to bail or not. We have stated above the defects in the identification parade.
16. The credential defect being that there is delay in identification parade without any explanation for that delay and secondly, the factum of five days presence of the applicant at the same Police Station at which the witnesses were posted and .Then the remarks in the identification regarding objection by the applicant and reply by the witnesses and finally, non-description of dummies in the identification parade are the circumstances, which, prima facie, lead to a conclusion that a doubt is created in the entire identification parade. It is settled law that on the basis of perfunctory and hollow identification parade, no conviction can be bases. Consequently, the application is entitled to bail.
17. ' Above are our reasons for the short order dictated in open court on 15-2-2012.
18. ' Needless to observe that while deciding guilt or innocence of the accused persons before it, trial Court shall not be influenced, in any manner whatsoever, by any of the observations made above.