1. ' By this order I propose to dispose of criminal bail application filed on behalf of the applicants Shafiq Ahmed, Ghulam Ali, Karim Bux, Allah Wadhayo and Mukhtiar Ahmed in a case bearing F.I.R.
2. No,47 of 2001 of Police Station Mirpur Mathelo registered for offences under sections 302 read with 147 and 148, P.P.C. The bail plea of the applicants was declined by the learned IVth Additional Sessions Judge, Mirpur Mathelo vide order, dated 8-6-2001.
3. ' The prosecution story as enunciated in the F.I.R. Is that on 9th March, 2001 at 8-30 a.m.
4. Complainant Ghulam Ali Kazi appeared at Police Station Mirpur Mathelo and lodged F.I.R. Alleging, inter alia, that on 28th March, 2001 while the complainant alongwith his father namely Muhammad Anwar was going to the house of Mushtaq Faqeer for some work at about 8-30 p.m. When they reached near village Siddique Kalwar just close to the graveyard, they found five persons duly armed with Lathies, emerging there. They disclosed that since the complainant was not making payment of an outstanding amount and that they have been put in embarrassing position, therefore, they would not be spared. Saying so, all the accused caused Lathi blows to Muhammad Anwar, father of the complainant Ghulam Ali, who fell down. The F.I.R. Further showed that accused caused Lathi injuries to deceased on which complainant raised cries which attracted P.W. Shah Zaman and Zahid Hussain and they came running. It is further disclosed in the F.I.R. That the complainant party saw accused causing injuries to the deceased who was found in serious condition and thereafter leaving the P.Ws. On the corpse of deceased, approached Police for registration of F.I.R. The culprits, thereafter. Decamped from the scene of offence. After the departure of the culprits, the complainant and P.Ws. Saw deceased Muhammad Anwar having sustained injuries on face, neck, hands and back of neck by means of Lathies. He was immediately removed to Civil Hospital, Mirpur Mathelo where the injured succumbed to injuries. The complainant narrated the incident to his relative namely Kazi Ghulam Hussain who is Nekmard of their locality and thereafter he approached the concerned police for lodging F.I.R. Alleging that his father Muhammad Anwar was given Lathi blows by some unknown persons with an intention to kill him. The complainant and the P.Ws. Claimed to have seen the culprits at the spot and asserted that they could be identified when brought before them.
5. ' The investigation followed and in due course on 11th April, 2001 the identification test of the accused Mukhtiar Ahmed, Shafiq Ahmed and Ghulam Ali had taken place under the supervision of Civil Judge and F.C.M., Mirpur Mathelo in which the accused were identified by complainant Ghulam Ali and P.Ws. Shah Zaman and Zahid Hussain. After usual investigation, the case was sent up for trial in the Court of IVth Additional Sessions Judge, Mirpur Mathelo.
6. ' Heard Mr. Shahnawaz Chachar, learned counsel for the applicants, and Mr. Sher Muhammad Shar, learned Assistant Advocate-General, appearing on behalf of the State. It has been contended by the learned counsel for the applicants that the names of all the five applicants do not find place in the F.I.R. According to F.I.R., it has been alleged by the complainant that some unknown accused had killed the deceased by means of Lathi blows. It has been further argued that the kind of weapons used in the commission of crime were Lathies which are being carried in ordinary course of life and the same could not fall within the meaning of deadly weapons. It has, further, been argued that nothing incriminating has been secured from the possession of applicants Mukhtiar Ahmed, Shafiq Ahmed and Ghulam Ali. It is also contended that the only evidence against the applicants was the identification test being held on 11th April, 2001 which was a hollow formality devoid of any legal sanctity inasmuch as the same was not held as per Rules. He also argues that the remaining two applicants Karim Bux and Allah Wadhayo were hot put to an identification test.
7. He has referred to the following cases in support of his contentions:--
(1) Gulab v. The State 1974 PCr.LJ 74,
(2) Mehar alias Fazal Muhammad v. The State 1978 PCr.LJ 176,
(3) Lashkari v. The State PLD 1981 Kar. 1,
(4) Lal Pasand v. The State PLJ 1981 SC 407,
(5) Akbar v. The State 1983 PCr.LJ 1677,
(6) Liaquat Ali v. The State 1986 PCr.LJ 2317,
(7) State v. Sobharo 1993 SCM R 585,
(8) Mehmood Ahmed and others v. The State 1995 SCM R 127 and
(9) Riaz v. The State 1998 PCr.LJ 1613.
8. ' The learned A.A.-G. Has opposed the grant of bail in respect of applicants Mukhtiar Ahmed, Shafiq Ahmed and Ghulam Ali on the ground that they were identified by the complainant and the two witnesses in an identification test parade held by a Civil Judge and F.C.M., Mirpur Mathelo and as such they are not entitled to bail. For the remaining two namely Karim Bux and Allah Wadhayo, he raised no objection if they are released on bail.
9. ' I have given my anxious consideration to the arguments of the learned Advocates for respective parties and perused the record. Admittedly, the names of the applicants do not find place in the F.I.R. No descriptions or features of the applicants were disclosed in the F.I.R. Nothing incriminating was recovered from the possession of the applicants. The only evidence against applicant Shafiq Ahmed, Ghulam Ali and Mukhtiar Ahmed is an identification test being held under the supervision of Civil Judge and F.C.M., Mirpur Mathelo which is a A hollow formality devoid of any legal sanctity whereas no test was held in respect of remaining two applicants namely Karim Bux and Allah Wadhayo. The perusal of memo. Of identification test shows that the same was not held under section 26.32 of the Police Rules, 1934 and Article 22 of Qanune-e-Shahadat, 1984.
10. ' It would be pertinent to mention that for an identification of the under-trial suspect, the Rules shall be strictly observed in confronting the arrested suspects with witnesses who claim to identify them.
11. Under the law, the identification parade shall be conducted in presence of a First Class Magistrate and two more respectable witnesses having no interest in the case. Arrangements shall be made to ensure that the identifying witnesses be kept separate from each other at such a distance from the place of identification so that it shall render it impossible for them to see the suspects or any of the persons concerned in the proceedings until they are called up to make their identification. The identification shall be carried out as soon as possible/without any delay after the arrest of the suspect. The suspect shall be placed among other persons similarly dressed and of the same religion and social status. They should be of similar height, built, structure and colour. The proportion of dummies mixed with the under-trials shall be eight or nine to one. Each witness shall be brought up separately to attempt the identification. Care shall be taken so that the remaining witnesses are still kept out of sight and hearing and that no opportunity be permitted for communication to pass between witnesses who have been called up and those remain to be called or not been called. If it is desired, the fear of revenge or for other adequate reasons, that witness shall not have been seen by the suspect. The arrangement shall be made for the former when called up to stand-trial behind a screen or be otherwise at a place so that they can see clearly without being seen. The result of the test shall be recorded by a First Class Magistrate present in Form 26.32(1)(e) as such the witness views the suspect. At the close of test, the Magistrate or other independent witness/witnesses shall be requested to sign 'the form and certify that the test has been carried out correctly and that no collusion between the police or witnesses or among the witnesses was possible. It is advisable, that whenever possible, an independent reliable person unconnected with the police should be present throughout the proceedings at the place where the witnesses are kept and should be required to devote his attention entirely to the prevention of collusion. It is important that once the arrangements for the proceedings have been undertaken, the Officer, investigating the case and any Police Officer assisting him in the investigation, should have no access whatsoever either to suspect or the witnesses. The identification proceedings should not be arranged without the orders of the First Class Magistrate and such Magistrate should always be present to arrange and conduct the proceedings himself.
12. The value of test arranged by Judicial/First Class Magistrate is inevitably liable to be called in question by the defence.
13. ' The proceedings of this nature, described above, are extrajudicial. After the completion of period, the Magistrate holding the test has to append his certificate at the foot of the identification memo.
14. As contemplated in Chapter 11-C of the High Court Rules and Orders Vol.III.
15. ' A careful study of the Mashirnama of identification makes it abundantly clear that the learned Civil Judge and F.C.M., Mirpur Mathelo had not recorded the identification test in accordance with the Rules and procedure laid down, as above. According to the Mashirnama of identification, three persons namely Mukhtiar Ahmed, Shafiq Ahmed and Muhammad Bachal were jointly identified, in a test parade. The Mashirnama further shows that the three accused were mixed with nine dummies by which the proportion of the under-trial mixed with the innocents comes to be 1:3.
16. According to Mashirnama, no specific role was assigned to any of the applicants. The identification memo. Was not signed by the alleged eye-witnesses. The applicants Mukhtiar Ahmed, Shafiq Ahmed and Muhammad Bachal were arrested on 9-4-2001 and were put to an identification test on 11-4-2001 which shows that the same was held one month after the occurrence and on third day of the arrest of the accused which has roped the entire proceedings of its value according to law and, lastly, and important aspect of the matter to be touched at this stage is that as contemplated in Chapter 11-C of Lahore High Court Rules and Orders Volume III no certificate was appended by Mr. Zafarullah Solangi, Magistrate First Class, Mirpur Mathelo at the foot of identification memo.
17. ' In the case of Nabi Bux alias Naboo v. The State 1989 PCr.LJ 1123 the descriptions and features of the culprits were not given in the F.I.R. Or the statements of witnesses. It was held that the identification test had no evidentiary value: It was further held that no attempt was made by the Investigating Officer to record in F.I.R., descriptions of the accused persons who at the time of the incident were seen by the complainant party. It was observed by the learned Judge in Chamber that the absence of recording of description in F.I.R. And police statements could have been for two reasons. Firstly, that the Police Officer who recorded F.I.R. And police statements was ignorant of law or in the alternate they wanted to shield the accused persons and the omission was deliberate and motivated. Similarly, in the case of State v. Sobharo 1993 SCM R 585, the evidence of identification test was held to be of no value for want of descriptions of accused in the F.I.R. The above proposition of law is further supported by the cases of Lal Pasand v. The State PLJ 1981 SC 407, Gulab v. The State 1974 PCr.LJ 74, Mehar alias Fazal Muhammad v. The State 1978 PCr.LJ 176 and Akbar v. The State 1983 PCr.LJ 1677. In the case of Liaquat Ali v. The State 1986 PCr.LJ 2317 it was held that besides evidence of foot-print test, the identification test was held 34 days after the occurrence and in the circumstances the accused were found entitled to grant of bail on the ground of further enquiry. Similarly, in the case of Mehar alias Fazal Muhammad (supra), the identification test was held 18 days after occurrence and the bail was granted. In the case of Lashkari v. The State PLD 1981 Kar. 1, it was held, inter alia, that intermingling of 9 or 10 strangers with accused persons is a normal ratio and deviation from the rule would render the evidence of identification test as virtually meaningless. In the case of Riaz v. The State 1998 PCr.LJ 1613, the accused were collectively identified in a parade and ratio of dummies mixed with under-trials was not in accordance with the Rules and besides the identification test was held after the delay of three days. In such circumstances, the identification evidence was ruled out of consideration. In the case of Muhammad Akram v. The State 1998 PCr.LJ 1693, no certificate was appended by the Magistrate at the foot of the memo. Of identification test, the same was ruled out of consideration.
18. In the case of Mehmood Ahmed and others v. The State 1995 SCM R 127, no specific role was assigned to the culprits who were identified in the test, the identification evidence in such circumstances was ruled out of consideration.
19. ' By my short order, dated 10th August, 2001 I had granted bail to all the applicants and above are the reasons for the same.
20. ' The observations made hereinabove are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Judge in so far as trial of the main is concerned. The learned trial Judge will decide the main' case in accordance with law, uninfluenced by whatever is observed hereinabove.