ZAFAR HADI SHAH, J. - The applicant/accused is facing trial under Section 17(4) Offence Against Property (Enforcement of Hadd) Order 1979 under FIR No. 128/1996, registered at Police Station, Azizabad, Karachi, According to the FIR., on 1.5.1996, at. About 2.45 p.m. The complainant H.C. Sohail Ahmed and P.C. Muhammad Yaqoob were riding on Motor Cycle No.GT.8758, when they reached near Gulistan-e-Shamim, Block 8 near Future Grammer School Federal B.Area Karachi, they were fired from the Honda Civic Car of light blue colour bearing No. F-546, in which 4 persons were sitting H.C.Muhammad Yaqoob expired on the spot while the complainant jumped and saved himself. They also took away sendee SMG- 25735 loaded with thirty five cartridges of P.C.Muhammad Yaqoob.
2. The learned counsel appearing for the applicant/accused argued that the accused/applicant was not arrested on the spot and that the complainant and the accused were, not known to each other prior to the incident. No identification parade of the accused after his arrest was conducted.
The learned counsel further argued that the entire prosecution case is based on the disclosure made by the accused/applicant during his Police custody which according to him was not admissible under Article 38 of the Qanoon-e-Shahadat.
3. The learned counsel Miss Nasreen Zafar appearing for the State argued that the complainant had identified the accused in the Police Station and she opposed the bail application. From the records of the case it transpires that the complainant and the accused were not known to each other prior to the incident. In such a situation the identification parade was necessary, more particularly when the complainant had stated that he could recognize the accused. The learned counsel has placed reliance on PLJ .1995 (Criminal) Lahore 97, (Meran Bu v. The State) wherein it has been held as under:- "It appears that the assailants were not known to complainant prior to the occurrence. Admittedly identification parade was not conducted. I think that identification parade was necessary particularly when the complainant and other witnesses present on the scene of occurrence had stated that they could recognize the accused."
Further the Hon'ble Supreme Court in a recent case reported in 1997 SGMR 412 Muhammad Rafique Vs. The State held as under:- "It has not come on record, as to why identification test of the petitioner through eye witness was not held when his name did not appear in the FIR. Mere production of the petitioner before the Police of some cash alleged to have been obtained by robbery, in absence of any other evidence.
In this respect the observation made in the case of Ishaque Maseeh Vs. The State (1993 SCM R 1322) are relevant, "ln the circumstances, we convert this petition into appeal, grant bail to the applicant Muhammad Rafique."
4. It is an admitted position that in the present case the prosecution has based its case on the disclosure made by the accused during his police custody which under Article 38 of the Qanoon- e-Shahadat is in admissible and is of no legal value. On this point the relevant case is the case of Muhammad Saddique Vs. The State reported in 1996 P.Cr.L.J. 1608 wherein it has been held that the confession of an accused before a Police Officer is an inadmissible evidence, in view of the mandatory provision of Article 38 of Qanoon-e-Shahadat 1984. Further, admittedly no recovery has been made from the accused/applicant even the alleged SMG 25735, which according to the F.I.R was taken away by the accused has not been recovered. In view of the above. I am of the opinion that the accused is entitled to bail.
5. The bail application is allowed and the applicant/accused is ordered to be released on bail in this case on his furnishing one solvent surety in the sum of Rs.1,00,000/- and P.R.Bond in the like amount to the satisfaction of the trial Court.