1. The three applications are being tried in a case in the Court of VIIIth Additional Sessions Judge, Karachi under sections 395 and 397, P. P. C. Read with section 17114 of the Hudood Ordinance, 1979.
2. The facts briefly stated are that an incident occurred on 19th August. 1980, at about 11 p.m. Which was reported to the Gadap Police Station on 20th August, 1980 by one Asadullah. The report was that Bus No. 953-737 which was going from Karachi to Sukkur and was being driven by one Natha Khan with conductor Maroof Khan alongwith 27 passengers in the vehicle, was entered into near the Toll Plaza on the Super Highway at about 9-45 p m. By five persons. When the bus had reached near Sui Gas Pipe Line those five persons who had entered the bus near the Toll Plaza forced the driver to take the bus over to Sui Gas Pipe Line where five more persons, three of them armed with guns, one with revolver and the fifth with rifle, surrounded the bus. The five persons who had got into the bus searched passengers threatening to kill them and robbed them of goods including wrist watches. In the slight scuffle which took place one passenger by name Imam Ahmed received gunfire injury on his arm.
3. The three applicants were arrested on 12th February, 1981 for offence under section 13-D of the Arms Ordinance, and during the investigation they were also arrested for the offence of the hold up of the bus and robbing of passengers.
4. Mr. Muhammad Ali Shaikh contends that the arrest of the three applicants was after a period of six months from the date of incident, and the identification test was after long delay and, therefore, would be of doubtful nature. He has further contended that in the F. I. R. Lodged by Asadullah soon after the incident there is no description whatsoever of the five persons who entered the bus and the five others who later were concerned in the hold up. He has further contended that the only reason stated by the learned VIIIth Additional Sessions Judge, Karachi for rejecting the bail application of the three applicants is that besides being picked out in the identification parade, there was recovery of wrist watches.
5. With regard to identification parade it has been contended that such evidence is merely corroborative evidence and is not sufficient to establish the identity of the accused at least till the evidence of the witnesses is recorded and, therefore, it is a matter for further inquiry with regard to the recovery of wrist watches, it is stated by the learned Advocate that since the police papers with regard to the identification, best of picking out of the watches do not reveal that the same were mixed with other watches during the identification, the evidence would not be free from doubt. He has relied on Shafi Muhammad v. The State (PLD 1971 Kar. 721He has also relied upon the decision in Kassim and others v. The State (PLD 1967 Kar. 233 with regard to delay in holding identification parade and the reliance that cats be placed on such evidence.
6. In the order rejecting the bail application the learned Additional Sessions Judge has made an observation that in case of such robbery victims are not supposed to identify the robbers. With due deference the observation goes to support the contention that there is no proper evidence with regard to identity of the applicants. If there is no identity established there would be no basis for conviction of the accused. In any case, although assessment of evidence has to be made by tentative sifting of evidence all the same, Courts have to refrain directly or indirectly from giving any conclusive finding which might affect the guilt or innocence of the accused.
7. Under the circumstances stated, however, the case against the three applicants is of further enquiry, and it will be for the trial Court to consider the evidence of the witnesses specially with regard to identifica--tion of each of the accused. In the meantime, on the tentative assessment for the purposes of bail of the material on record it is hereby ordered A that the applicants be released on bail on furnishing one surety each in the sum of Rs. 25,000 and P. R. In the like amount to the satisfaction of the trial Court.