1. ' Applicants Khadim Hussain son of Lal Khan Metlo and Gul Baig son of Hamzali Metlo, have applied for bail in a case which is registered against them alongwith others under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Crime No,1 of 1988 of Railway Police Padidan). The F.I.R. In this case was lodged by Incharge Guard of Train No, 2DN Khaiber Mail on 13- 2-1988. It is alleged that while the train stopped at Lakha Road, some unknown persons robbed the passengers of a compartment and snatched from them currency notes and other baggage. As the F.I.R. Was lodged by the Guard Incharge who was not eye-witness the necessary details of the incident are not incorporated in the F.I.R. However, from the order of the Sessions Judge, Nawabshah it appears that some details of the incident were given in the statements of the robbed passengers which were recorded on the same day under section 161, Cr.P.C. From the order of the Sessions Judge, Nawabshah, it appears that one of the passengers Afzal Ahmed, stated before the police that when the train stopped at Lakha Road some one knocked the door of the compartment. When he opened the door he found four persons standing at the door. One person was close to the compartment while others were few paces away. One of the culprits was stated to be armed with country-made pistol while another was armed with a knife and the remaining two were empty handed. As soon as the witness opened the door, the aforesaid four culprits allegedly, entered the compartment and robbed the passengers Ahmed Khan, Afzal Ahmed, Khalid Masood of cash, a Rado watch on which name of Ahmed Khan was engraved. During the course of investigation the police arrested five persons including the present applicants. Out of five the present applicants and one Qurban were identified while other two were not identified and accordingly only the applicants, Qurban and Rakhial have been challaned. It is alleged that at the instance of applicants Khadim Hussain, one country-made pistol was recovered while no recovery is shown to have been made from Gul Baig, the other applicant. The applicants are shown to have been arrested on 6-3-1988 at Begmaji, District Sukkur while they were put to identification test on 7- 3-1988 at Faiz Ganj. The second identification test of the applicants was held again on 9-3-1988 at Faiz Ganj. In the first identification test held on 7-3-1988 witnesses Afzal Ahmed and Khalid Masood allegedly identified the applicants, while in the second identification test which took place on 9-3- 1988 witness Ahmed Khan is stated to have identified the present applicants. The contention of the learned counsel for the applicants/accused is that the only evidence connecting the present applicants with the crime is the identification test which according to the learned counsel for the applicants cannot be relied upon for the following reasons:
(1) That the names or description of the accused persons are not given in the F.I.R.
(2) That the accused were arrested on 23rd day of incident at Begmaji while they were put to identification test at Faiz .Ganj which is about 20 miles away from Padidan where they were lodged in lock-up and no explanation has been given by the prosecution for not holding the identification test of the applicants at Noshehro Feroz which is close to Padidan and is the headquarter of Padidan.
(3) That at the time of holding of the first identification test on 7-3-1988 only 16 dummies were mixed with five accused while during the second identification test three accused were mixed up with only 12 dummies and as such the identification test was not held in accordance with law.
(4) That the alleged recovery of a country-made pistol and cartridges at the instance of applicant Khadim Hussain as described in the recovery memo. Is highly improbable and in any case the alleged recovery of pistol and cartridges which is ordinarily available and is of common use was not enough to connect the accused with the offence charged against them.
(5) That from the police diary it appears that the witnesses were called by the police at Padidan on 7-3-1988 and both the accused and the witnesses were taken from Padidan to Faiz Ganj for the purpose of holding identification test together in the same van and as such the possibility of witnesses having a chance to see the accused persons could not be overruled.
(6) That in so far accused Gul Baig was concerned, no incriminating article was recovered from his possession at all.
2. ' In addition to above the learned counsel for the applicants also contended that the Offence of Haraba with which the applicants are charged cannot be proved against them as according to the F.I.R. As well as the statements of the witnesses recorded under section 161, Cr.P.C. There were no other witnesses of the crime other than the victims. It is accordingly contended that on the basis of the material so far collected by the prosecution it cannot be said that the accused persons have committed a crime which is punishable with imprisonment which may extend to 10 years or more and their case at this stage required further enquiry. In support of his contention that where the only link to connect the accused with the offence is the identification test which was not held in accordance with law and as such the case against the accused was held one which required further enquiry, the learned counsel relied on the case of Hassan Raza v. The State 1985 MLD 65. In the aforecited case a learned Single Judge of this Court while hearing a bail application in a case registered against the accused under section 17(2) of the Offences Against the Property (Enforcement of Hudood) Ordinance 1979, held that where the accused was mixed up for purposes of identification test with only five dummies and there was no reason given for acceptance of such identification test and nothing incriminating was recovered from the accused the case of the prosecution was held to require further enquiry. Learned counsel has also referred to the case of Karim and others v. The State PLD 1961 (W.P.) Kar. 728, Wahid Bux v. The State 1969 P Cr. L J 1317, Lal Pasand v. The State PLD 1981 SC 142, Ghulam Rasool and others v. The State 1988 SCMR 557 in support of his contention that where the accused was mixed with less than 9 or 10 dummies at the time of holding of identification test such identification was not accepted by the Court and the accused was given the benefit of doubt.
3. The learned A.A.-G. On the other hand contended that the fact that the accused were mixed up with lesser number of dummies at the time of holding of identification test is a question which should be left to be determined at the trial of the case and same cannot be a ground for giving benefit of doubt to the accused at the stage of hearing of their bail application. With regard to the case of Hassan Raza v. The State relied by the learned counsel for the applicants the learned A.A.- G. Though contended that contrary view has been expressed in some cases of this Court he failed to produce any such case. Regarding cases of Qaim and others v. The State, Wahid Bux v. State and Lal Pasand v. The State, referred to above the learned AA.-G. Contended that these cases are distinguishable as they arose after decision of the case on merits. After hearing the learned counsel for the applicants as well as the learned State counsel I am of the view that although a deeper appreciation of the contentions of the learned counsel for the applicant is not possible at this stage but on a tentative examination of the material so far collected by the prosecution against the applicants it cannot be said that the applicants are reasonably guilty of an offence which is punishable with death or for imprisonment for life or for ten years. It is true that the cases of Qaim and others, Wahid Bux and Lal Pasand arose from the final decision of the case but the rule of mixing an accused in proportion of 9 to 10 dummies has come to be recognised by a long line of decisions as almost a rule of law and as such it cannot be ignored at the time of consideration of the bail application of an accused. If an accused is entitled under the law to the benefit of doubt arising out of a defective identification test at the trial of the case, there appears to be no reason to deny the same advantage to him at an earlier stage of the case on the admitted facts of the prosecution case. The learned A.A.-G. Was unable to point out any decided case or any law to the effect that the rule laid down in the aforesaid cases could not be applied by the Court at the time of consideration of bail application of the accused. In my humble view the following observations of the Supreme Court in the case of Lal Pasand v. The State made the rule of mixing up the accused with 9 to 10 dummies at the time of identification test almost imperative unless the prosecution is able to establish some compelling reason to depart from it: "We now turn to the question of the evidentiary value of the identification parade conducted by the police and as we explained, the Sessions Judge had rejected it, because the number of other persons intermingled with the accused in the identification parade was not in the proportion of nine or ten to one as laid down in a series of judgments of the West Pakistan High Court. The attention of the learned Judges of the Peshawar High Court was drawn to these judgments, but the learned Chief Justice overruled the view of the learned Sessions Judge, because he was of the view that the judgments of the West Pakistan High Court did not lay down an inflexible rule as held or assumed by the Sessions Judge."
4. ' The question is which of these two views is to be preferred. And, whilst we respectfully agree with the observation of the learned Chief Justice, that the judgments of the West Pakistan High Court cited earlier, do not lay down an inflexible rule about the number of persons to be intermingled with the accused, the prosecution has always to explain its failure to conform to a ratio accepted by a long line of usages. And, we may, further point out that the ratio of ten other under trials to one accused had been prescribed by the Government of the United Provinces in its Government Orders for the Police (see paragraph 23 of the judgment of Ashrafi and another v. The State. Therefore, it would be monstrous for the Courts to permit a departure from a rule accepted by Government in the absence of some explanation by the prosecution. Now, in the instant case, the explanation of the State is that there had been a joint identification parade with the result that it was not possible to find a sufficient number of other persons to be intermingled with the accused. And, the learned Magistrate who conducted the identification parade appears to have assumed that all the five accused had to be identified. That assumption was wholly erroneous because Saadullah Khan had seen only two of the five assailants.
5. ' However, on the footing that five persons had to be identified, it would have been unreasonable to mix them with fifty other persons, because such a large number of persons could only have confused the identifying witnesses. Therefore, the proper course in such cases is to have separate identification parades for each accused. And, no explanation has been given in the instant case for not holding separate identification parades.
6. In the case before me the admitted position is that in the identification test of the two accused which was held on 7-3-1988 and 9-3-1988 respectively five accused were mixed with only 16 dummies and 3 accused with 12 dummies. This C ratio of dummies was far less than the number recognized as sufficient by the Court. It may be mentioned here that in the case of Qaim and others v. The State the accused was mixed with 5 dummies which was not accepted by the Court.
7. In the case of Wahid Bux, two accused were mixed up with seven dummies which was rejected by the Court and in the case of Lal Pasand though the number of dummies mixed up with the accused is not mentioned in the case but it is mentioned that their number was less than ten to one accused and, therefore, the identification test in the case was not accepted by the Supreme Court and the conviction made by the High Court of Lahore was reversed. Respectfully following the rule laid down in the above cases 1 hold that the case against the applicants requires further inquiry at this stage. I may also add here that the alleged recovery made at the instance of Khadim Hussain was of only a country-made pistol and cartridges which are commonly available in that market and no incriminating article at all was recovered from the other accused Gul Baig. The contention of the learned counsel for the applicants that in the first identification test the witnesses were called at Padidan and they were taken alongwith the accused simultaneously for the identification test to Faiz Ganj and therefore, the possibility of witnesses having a chance to see the accused could not be ruled out is also not wholly without substance. All these facts further support the contention of learned counsel for the applicants that the case against the applicants at this stage needs further enquiry. I accordingly admit the applicants/accused to bail in the sum of Rs,20,000 each with one surety and. P.R. Bond in the like amount to the satisfaction of the Sessions Judge, Nawabshah.