ORDER FAIZ MUHAMMAD QURESHI, J.- Present applicant is seeking cancellation of , to respondents Nos. 1 to 3 by learned 2nd Additional Sessions Judge, Larkana in Crime No. 273/2000 registered with Police Station Kamber under Sections 302, 459, 460, P.P.C.
Brief facts of the case are that, on 5.12.2000 at 04.00 hours complainant namely Imamuddin son of Haji Shah Nawaz Depar lodged report with Police Station Kamber which was taken down under Sections 459, 460, P.-P.C. Vide Crime No. 273/2000 stating therein that he has got maternal cousins namely and respectively Bolo, Bashir Ahmed and Shahmir all the three sons of Muhammad Hashim by caste Depar and they reside in the same hedge. They sleep in different rooms. His another maternal cousin Bashir Ahmed was also sleeping in the room of Hotel adjacent to his room and at about 1-00 a.m. Night time complainant heard cries coming from the room, of afore-named Bashir Ahmed and he came out from his room and found his other maternal cousins namely and respectively Bolo and Shahmir who also came out from their rooms. The electric bulb was burning and they saw on the light of electric bulb for persons were standing, in front of Bashir Ahmed and out of them two were carrying guns and one has rifle and there were two other persons who were standing outside the door and they were also carrying guns and their faces were open and they were seen very property on the light of bulb and can be identified on seen. The person who was carrying rifle straight away fired on Bashir Ahmed who raised cries and fell down and the complainant party raised cries and thereafter for accused with their respective weapons straight away fired on complainant party and they fell down and the shots were missed. According to complainant, his maternal cousins namely and respectively Bolo and Shahmir sustained fire-arm injuries and meanwhile the villagers were also attracted and the accused went away firing in the air and it was seen by the complainant that his maternal cousin Bolo had sustained fire-arm injuries on his right arm and chest, Bashir Ahmed had fire-arm. Injuries on his left side of lumber region so also on the head, Shahmir had also fire-arm injuries on knee cap and blood was oozing out and outside of the door Muharram son of Wahid Bux Depar and Javed Ahmed son of Meer Lakho were injured and were lying on the ground and were raising cries and it was also seen by the villagers that Javed Ahmed had also fire-arm injury on his thigh and so also Muharram had fire- arm injuries and blood was oozing out and he disclosed that they also came on the gun shot reports and they found one of the persons who fired on them and went away. Thereafter Bashir Ahmed also informed that he was sleeping in the room of Hotel and the door of his room was knocked and it was opened and six persons came inside the room and they said that VCR and T.V.
Will be removed from the room and on resistance the person who was carrying rifle straight away fired on him and who became injured and then with the assistance of villagers the injured were removed to CMC Hospital Larkana where, the maternal cousin of complainant namely Bolo expired.
After leaving the witnesses over the dead-body of Bolo the complainant being present at Police Station lodged the report that six unidentified persons entered the house forcibly with an intention to commit theft and they injured his maternal cousins Bolo, Bashir Ahmed and Shahmir and the villagers Javed Ahmed and Muharram and on reaching the hospital his maternal cousin Bolo expired.
2. It appears that the afore-named respondents Nos. 1 and 3 are said to have been arrested on 19.12.2000 whereas the respondent No. 2 has been arrested on 25.12.2000 and thereafter police put up challan under -Sections 302. 459. 460, P.P.C. And the case came on the file of learned Sessions Judge, Larkana who transferred the same to the Court of learned 7th Additional Sessions Judge.
Larkana. The afore-named respondents 1 to 3 moved bail application before the Trial Court who after hearing learned counsel for the parties granted them bail by order dated 20.3.2001 hence this cancellation bail application under Section 497(5), Cr.P.C. Being filed by the applicant/complainant namely Imamuddin.
3. Mr. Ali Nawaz Ghanghro, Advocate for the applicant has contended that respondent Nos. 1 and 3 namely Pathan and Rasool Bakhsh were arrested on 19.12.2000 whereas Allah Bakhsh has been arrested on 25.12.2000 and all the three accused have been subjected to identification parade on 21 12.2000 and 25.12.2000 respectively through complainant and witnesses Bashir Ahmed, Shahmir, Muharam and have been identified in identification parade by the aforenamed witnesses.
According to Mr. Ghanghro, one of the injured Shahmir whose right leg has been amputated and he has further contended that the order of the Trial Court while granting bail to the afore-named respondents Nos. 1 to 3 does not disclose as to how case, is falling under the ambit of further inquiry and he has further stated that injured namely and respectively Bashir Ahmed, Shahmir, Muharam and Javed have supported the case of the prosecution and have implicated the afore-named respondents Nos. 1 to 3 and one of the maternal cousins of the complainant namely Bolo has died.
In support of his contentions he. Has placed reliance on 1984 S.C.M.R. 1230 and 2161, P.L.D. 1994 Supreme Court 65 and 1991 S.C.M.R. Page 1849.
4. On the other hand, learned counsel for the respondents 1 to 3 Mr. Muhammad Ayaz Soomro has argued that from the contents of F.I.R. And other material available on record, it is clear that the afore-named respondents 1 to 3 are closely related to the applicant and yet they have not been identified by them during the commission of offence on the light of electric bulb and they come from the same vicinity and thus the conduct of the complainant is dubious. He has further contended that only the piece of evidence against, the respondents 1 to 3 is identification parade which has been held after delay of two days and possibility cannot be ruled out that they have been shown to the complainant and other witnesses before they were subjected to identification parade and such identification parade is not reliable and case of the present applicant is falling within the purview of Section 497(2), Cr.P.G. And the learned Trial Judge has rightly granted them bail.
Mr. Gul Hassan Solangi, Advocate for the State opposed the contentions raised by Mr. Muhammad Ayaz Soomro, Advocate for the respondents I to 3 and supported the contentions of Mr. Ali Nawaz Ghanghro, Advocate for the applicant on the ground that there are pieces of evidence against the respondents 1 to 3 in the shape of identification parade; recovery of gun, rifle, evidence of injured Shahmir, Javed, Muharam, Bashir Ahmed, for empties have been recovered from the place of occurrence and has not supported the impugned order passed by the Trial Court. When asked as to when identification parade of the afore-named respondents 1 to 3 has been held, the learned counsel for Addl. A.-G. For the State replied that as far as accused Rasool Bakhsh and Pathan are concerned they have been arrested on 19.12.2000 and they have been subjected to identification parade on 21.12.2000 through complainant Imamuddin whereas on 23.12.2000 again identification of the accused Rasool Bakhsh and Pathan has been held through remaining witnesses namely Bashir Ahmed and Shahmir whereas another accused Allah Bakhsh has been subjected to identification parade on 26.12.2000. Mr. Gul Hassan Solangi also conceded that the weapon recovered from the possession of accused has not been sent to Ballistic Expert and there is no such report available with him. He has further stated that the statements of the injured witnesses were recorded on 10.12.2000 by police under Section 161, Cr.P.C. And there is delay in recording the statements of injured witnesses. According to him empties were recovered from the place of occurrence and no specific role has been assigned to the respondents 1 to 3 by the complainant and his witnesses during the identification test.
5. I have heard learned counsel for the parties and have gone through the material available on record. It is the case of prosecution that occurrence has taken place on 5.12.2000 whereas the, present respondents namely and respectively Pathan and Rasool Bakhsh have been arrested on 19.12.2000 whereas respondent No. 2 has been arrested on 25.12.2000 and the afore-named respondents namely and respectively Rasool Bakhsh and Pathan on 21.12.2000 have been subjected to identification parade through witness namely Imamuddin who is complainant in the case and they have been again subjected to identification parade on 23.12.2000 through the remaining witnesses namely Bashir Ahmed and Shahmir and whereas the respondent No. 2 Allah Bakhsh has been subjected to identification parade through the same witnesses on 26.12.2000.
Such type of identification test can be viewed with suspicion and there is no explanation as to why the identification parade of two accused Rasool Bakhsh and Pathan was held in piecemeal and there is a delay in holding the identification parade and there is every possibility that before the afore-named respondents 1 to 3 were subject to identification parade, they-might have been shown to the witnesses by police. If it is said by the defence that other witnesses namely Bashir Ahmed and Shahmir were admitted to hospital and therefore the identification parade of Rasool Bakhsh and Pathan was again held on 23.12.2000. This version can be partly believed and partly disbelieved as the complainant had already identified the afore-named two accused Rasool Bakhsh and Pathan on 21.12.2000 and thereafter- he must have shown the accused to the remaining witnesses Bashir Ahmed and Shahmir before the identification parade of the afore- named accused Rasool Bakhsh and Pathan which was held on 23.12.2000 and the identification parade on 26.12.2000 was held with regard to co-accused Allah Bakhsh and there is a doubt and when doubt is-created that is to be stretched out in favour of accused and not in favour of prosecution as held by the superior Courts. It is also borne out from the record that accused party and complainant party are closely related to each other and it is their claim that during the commission of the offence they had seen six accused very properly and it is very strange that they could not identify them when the accused are closely related to the present complainant and other witnesses and thereafter their names have been given by the complainant to the police. It is also not borne Out from the record as what evidence had with police when they arrested the aforenamed respondents 1 to 3 and Mr. Gul Hassan Solangi, Advocate for Addl. A.G. For the State pointed out from police case diary that they were arrested by police on mere suspicion. The point is that the police case diaries are not permissible to the Advocates whereby they go through the same and further more it has been disclosed, by the learned State counsel that the afore-named accused were arrested on mere suspicion and there was no tangible evidence with police to arrest the afore-named respondents. The only piece of. Evidence against the present respondents 1 to 3 is identification parade which, too, has been held in piecemeal and is weakest type of evidence as held by the superior Courts and the sanctity cannot be attached to such identification parade and.
Moreover no marks of identification have been noted by the Judicial Magistrate of the P.Ws. Who have identified the present respondents 1 to 3 during the identification parade and no specific role has been described by the witnesses to the present respondents 1 to 3 and I am being fortified by a case reported in 1995 S.C.M.R., 128 wherein the Honourable Supreme Court has held that the identification parade losses the sanctity when no role has been described to the accused during the commission of the offence. Further reliance can be placed on the case of Sadiq Shah v. Qurban Shah and others, reported in 1985 S.C.M.R. .979 where the cancellation bail application was dismissed by the Honourable Supreme Court on the ground that accused granted bail on the ground that their intention was not to commit murder and their conduct required further inquiry High Court having properly exercised its discretion, order not open to interference. In the present case the accused have not been identified hy the complainant and thereafter they have been arrested and therefore, their case also calls for further inquiry in view of the afore-mentioned authority given by the Honourable Supreme Court.
6. It .Has been held by the superior Courts that once bail is granted by Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. In the instant case, I have not been able to find out the strong and exceptional grounds for the cancellation of bail of the present respondents 1 to 3. It has also been held by the superior Courts that, Bail. To deprive a person on post-arrest bail of the liberty is a most serious step to be taken as held by Honourable Supreme Court in the case of Tariq Bashir v. The State (P.L.D. 1995 Supreme Court 34). I do not find any tangible and cogent ground tor the cancellation of to respondents Nos.
1 to 3 by the learned Trial Court and I am not inclined to interfere with the impugned order dated 20.3.2001 and accordingly Criminal Miscellaneous Application No. 63 of 2001 is dismissed.