' Muhammad Saleem complainant got recorded his statement on 24-6-1997 before Abdus Sattar, A.S.I. Police Station Secretariat, Islamabad at 8-50 a.m. With the allegation that he alongwith Muhammad Ayyub Khan and Noor Muhammad P.Ws. Was going on Suzuki Car No, JMB 2595 to Chak Shehzad when they were surprised by Car No, RIV 7887 who stopped their car. Three persons alighted while each of them was armed with pistol who abused them. They forcibly removed an amount of Rs,3,600 and one wrist watch. One person remained sitting in Car No, RIV 7887. Two persons sat in Car No, JMB 2595 alongwith them. One of the persons went to Car No,RIV 7887 and two persons sitting therein went away. The two persons sitting in Car No, JMB 2595 snatchekl the Car and took away the same.
2. On the basis of the aforesaid statement formal F.I.R. No, 103, dated 24-6-1997 was registered at Police Station Secretariat, Islamabad under sections 382/34 Pakistan Penal Code and under section 17 of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979. The value of the car as mentioned in the F.I.R. Was Rs,1,40,000.
3. The law was set in motion. The stolen car was standing on Islamabad Highway in a jungle which was taken into possession by Abdus Sattar, A.S.-I. On 26-6-1997 vide memo. Attested by Abdul Manan Constable No, 6499 and Muhamamd Elahi, S.I. Muhammad Ali was arrested as an accused of the case who during interrogation on 1-10-1997 named Pervaiz Iqbal alias Gogi as one of those persons who accompanied him. On that the police initiated the proceedings under section 87/88 of the Code of Criminal Procedure. Pervaiz Iqbal alias Gogi petitioner accused was arrested on 4-1- 1999 who is said to have been identified by the complainant and the P.Ws., in Police Station Secretariat as one of those persons who participated in the occurrence. The bail plea of this petitioner has been refused by both the learned lower Courts who has filed this petition before this Court to try his luck to be admitted to bail.
4. Both the learned lower Courts have denied the concession of bail to Pervaiz Iqbal alias Gogi petitioner on the grounds that he was identified during the Identification parade held in Police Station, under the Police Rules, 1934 and that the proceedings under section 87/88 of the Code of Criminal Procedure were initiated against him.
5. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record. The main contentions of the learned counsel for the petitioner are that the statement of an accused implicating the co-accused during the investigation has no legal force as the statement of an accused implicating a co-accused during the trial may be considered; that the simple fact of initiation of the proceedings under section 87/88 of the Code of Criminal Procedure cannot be held as the basis of the corroboration of the recitals of the F.I.R. As sometimes the accused made good their escape to avoid the coercion which is effected by the police and that there is no provision of law to justify the holding of the identification parade in the Police Station. He added that even in the F.I.R. The particulars of the accused persons have not been incorporated so as to ornament the ingredients of the prosecution case. On the contrary learned State counsel laid the emphasis that the reasoning adopted by the learned Additional Sessions Judge as mentioned supra has to play the legal role and that the abscondance of the petitioner has made out that he is prima facie connected with the occurrence.
6. I would express that the reasoning adopted by the learned counsel for Pervaiz Iqbal alias Gogi petitioner-accused has to prevail. First of all I would refer to Article 43 of Qanun-e-Shahadat Order, 1984 which provides that when more persons than one are being tried jointly and confession made by one of such person is proved, such confession shall be proved against the person making it and the Court may take into consideration such confession as circumstantial evidence against such other person. The interpretation of this Article would be that during the trial confession of an accused implicating himself and his co-accused shall be circumstantial evidence against the co- accused. I would express that making of a statement during the interrogation by an accused implicating himself as well as an accused can safely be held to be the confession before the police which is inadmissible in evidence in view of the mandatory provisions of Article 38 of the Qanun-e- Shahadat Order, 1984. This being the position the connected matter of processing further under section 87/88 of the Code of Criminal Procedure shall have to be viewed with caution on the grounds that the very taking into consideration of case of Pervaiz Iqbal alias Gogi as the accused is suspicious and the supplementary working in the matter shall sail in the same boat which means that the same shall also be of less legal effect. This is one aspect of the matter. The other aspect of the matter is that sometimes the accused persons hide and leave the place being scared of the coercion which is effected by the police in our country which is a known fact and is a matter of common knowledge. This ingredient of the prosecution case is not enough to deny the concession of bail to the petitioner. Then remains the identification parade said to have been conducted in Police Station Secretariat, Islamabad wherein the prosecution witnesses are said to have identified Pervaiz Iqbal alias Gogi petitioner-accused. In this respect suffice it to refer to Article 22 of the Qanun-e-Shahadat Order, 1984 under which provisions of law the Identification Parade is to be conducted. It would be better to refer to Chapter 11-C of the Lahore High Court Rules and Orders Volume III providing as to how Identification Parades are conducted. There is no provision of codified law or any rule in the Punjab Police Rules, 1934 that the Identification Parade can be conducted by a Police Officer in the Police Station. If this aspect of the matter is given the weight, I would express, then nobody would be able to save his skin. It has been held in Farman Ali v. The State (1997 SCM R 971) in which a case under section 392 of the Pakistan Penal Code was dealt with, that Identification Parade is necessary where names of culprits are not given in the F.I.R. And that the holding of such test is not only a check against false implication but is also a good piece of evidence against genuine culprits. Even though no Identification Parade has been conducted in this case yet, I would refer to Ghulam Rasool and three others v. The State (1988 SCM R 557) wherein it has been held that where role of accused at time of commission of offence is not described by the witnesses it is inherent defect and the evidence of the witnesses identifying the accused in such Identification Parade loses its efficacy. This was a ruling under section 9 of the Evidence Act which at present is equal to Article 22 of the Qanun-e-Shahadat Order, 1984. Even this aspect is entered in Rule 2 Chapter 11-C of the Lahore High Court Rules and Orders Volume-HI. The cumulative effect of the aforesaid discussion is that the involvement of Pervaiz Iqbal alias Gogi petitioner-accused is a question of further inquiry and further detention of the accused would be punishment without trial.
7. At this stage I am tempted to express that a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure and it is the high time to administer a piece of advice to the learned subordinate judiciary in this regard that the mere fact that the petitioner is involved in a case falling under the prohibitory clause according to the version of the complainant in the F.I.R. And according to the final verdict of the police incorporated in the challan indictment submitted under section 173 of the Code of Criminal Procedure, it would not be sufficient for the rejection of the plea of bail of the accused persons. If his case is that of further inquiry or is covered by any of the other provisions mentioned in the aforesaid section, he is entitled to be admitted to bail. In the instant matter the involvement of Pervaiz Iqbal alias Gogi petitioner is held to be a question of further inquiry and I hold that he is entitled to be admitted to bail than to be retained in jail.
8. For what has been said above, I accept this application and admit Pervaiz Iqbal alias Gogi petitioner-accused to bail in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail.