P L D 1961 (W (PLP)

Date of hearing : 11th April 1961. This revision petition is directed against the order of Sh. Iqbal Ahmad, Sessions Judge, Shahpur at Sargodha, dated the 24th of September 1900, whereby he upheld the conviction of Aftab, son of Muhammad Afzal under section 411, P. P. C., but reduced the sentence to two years' rigorous imprisonment.

2. The relevant facts are as follows. The petitioner was a cashier in the Electricity Branch, Thal Development Authority, Jauharabad. Forty‑nine. iron girders belonging to the Thal Development Authority were lying stacked near the Technical School Building, Jauharabad, under the direct charge of Khushi Muhammad Overseer (P. W. 5) Khushi Muhammad P. W. had deputed Sher Muhammad and Muhammad Siddiq Chaukidars of the Thal Development Authority to keep a watch over these girders. On the 16th of November 1957, Chaukidar Sher Muhammad reported to Khushi Muhammad Overseer that nineteen iron girders out of forty‑nine were missing. Khushi Muhammad checked the stock and finding that nineteen iron girders were missing, sent the report, Exh. P. A. to Police Station Khushab During the course of the investigation it transpired that the petitioner and one Mehnga had removed the iron girders in a truck from Jauharabad to Railway Station Bhalwal and there they were booked by goods train to Lahore. The consignee was Mehnga, though he had given out his name as Abdul Aziz and the consign ment was to self. The police took into possession the nineteen girders from the railway station and in due course challaned the two accused.

3. The petitioner was granted bail before arrest by this Court on the 31st of January 1958, anal he appeared before the Sub‑Divisional Magistrate, Jauharabad, on the 13th of February 1958. At the trial a large number of witnesses came forward to testify that the petitioner' had participated in the crime. Allah Rakha (P. W. 7), Booking. Clerk of the Afghan Public and Pakistan Universal Goods Service. Sargodha, depose that on the 8th of November 1957, Aftab Ahmad petitioner and Mehnga had contacted him at about noon and had asked for a truck for transporting girders from Jauharabad to Bhalwal. Aftab Ahmad petitioner assured him that he was an employee of the Thal Development Authority and that the girders were Government property. He accordingly placed the truck registered No. P. B. U. 967 at the disposal of Aftab Ahmad petitioner and Mehnga. Aftab Ahmad had paid Rs. 80 as transport charges and the witness produced the receipt Exh. P. E., in support of his statement. In this receipt the name of Aftab Ahmad is mentioned as the person who had hired the truck. Miraj Din (P. W. 1). Samundar Khan (P. W. 2), Ghulam Muhammad (P. W. 3) and Fazal (P. W. 4) stated that they had been hired by Aftab Ahmad petitioner and Mehnga on the 8th of November 1957, from Sargodha for loading girders on a truck. They were then taken on a truck from Sargodha to Jauharabad where they loaded nineteen girders, Exhs. P. 1 to P. 19, on the truck from a place near the Jauharabad Courts. Muhammad Khan (P. W. 8) was the cleaner of that truck and Muhammad Husain (P. W. 9) was its driver and both of them stated that truck P. B. U. 967 was hired by Aftab Ahmad and that he and Mehnga had taken the truck along with some labourers to Jauharabad, wherefrom the nineteen girders were loaded 'and taken to Bhalwal Railway Station. Muhammad Husain (P. W. 13), Octroi Clerk, Town Committee, Bhalwal, stated that this truck passed the octroi barriers and he had issued the parcha nikas Exh. P: M. He added that it was Aftab Ahmad petitioner who had given out himself as the owner of the girders. He had, however, given his name to him as Ghulam Nabi. Khadim Husain, Chief Goods Clerk, Bhalwal (P. W. 12), deposed that on the 11th of November 1957, the petitioner and Mehnga had approached him for the booking of nineteen girders from Bhalwal to Lahore and Mehnga had posed as owner of the girders and had given his name as Abdul Aziz. Accordingly, the Chief Goods Clerk had filled up the railway consignment form, Exh. P. J., on which Mehnga had affixed his thumb‑mark as Abdul Aziz of Landa Bazar, Lahore. The Chief Goods Clerk had issued the, railway receipt. Exh. P. H. which he had handed over to Mehnga.

4. The ownership of the girders was not disputed before me. The only point which the learned counsel for the petitioner has urged is that as no test identification parade was held, therefore, the evidence of the above‑mentioned witnesses should be dis carded. In support of this proposition he has placed reliance on Provash Kumar Bose and another v. The King (A I R 1951 Cal. 475), where a Division Bench of the Calcutta High Court observed as follows :‑ "That leaves for consideration the very important question as to whether these two accused persons were the two men who took part in that occurrence. On this question of identity 'it is necessary to remember that admittedly none of these witnesses knew either of these accused persons from before. The fact, therefore, that these witnesses have been identified in Ct. Proves as the man who was in police uniform and Aziz‑ul‑Rahman as his companion is of very little consequence. Before we can accept such identification as sufficient to establish the identity of the accused, it is very necessary that there must be good corroborative evidence and the corroborative evidence which one is entitled to expect in cases of this nature is the evidence of the witnesses having pointed these accused persons whom they identified in Ct. from the midst of other persons with whom they were mixed up at a test identification parade. The evidence of their having identified such persons at a test, identification parade has no substantive value, but is very important corroboration of their evidence in Ct. It is in circumstances like this that test identification parades are held." He has also relied on Awadh Singh and others v. The State (A I R 1954 Pat. 483), where Choudhary, J. of the Patna High Court observed as follows :‑ "The accused persons may or may not have legal right to claim for test identification and the holding of test identification may or may not be a rule of law, but it is a rule of prudence. Test identification parade should be held, especially when the accused persons definitely assert that they were unknown to the prosecution witnesses either by name or by face and they requested the authorities concerned to have the test identification parade held. The non‑holding of a test identification parade though may not be a ground to vitiate the trial, is undoubtedly a very important feature in considering the credibility of the witnesses on the point of identification."

5. In the present case, it appears that the petitioner was not arrested by the police, as he had been granted bail before arrest by this Court. He had appeared before the Sub‑Divisional Magistrate, Jauharabad on the 13th of February 1958, but at no stage of the trial he applied for holding a test identification parade, On the other hand, it appears from the statement of Assistant Sub‑Inspector Ch. Allah Ditta (P. W. 14) that he had submitted an application in which he prayed that the petitioner should be summoned and asked if he wished to have a test identification parade. He has added that the petitioner was summoned and he had stated before the Court that he did not wish to have a test identification parade. In his cross‑examination he admitted that after the petitioner had made ‑this statement before the Magistrate he had taken this document with him and had attached it with the supplementary challan. It appears from his statement that this application could not be traced at the time when he appeared as a witness. Malik Ahmad Khan (P. W. 18), who was the Sub‑Divisional Magistrate, Janharabad at that time was also examined as a witness, but he stated that he could not remember if the petitioner had stated before him that he did not want to have a test identification parade. It was under these circumstances that no test identification parade wet held.

6. Learned counsel for the petitioner has contended that this was a serious flaw in the prosecution case. The cases referred to above do lend support to his contention. But in my opinion it cannot be laid down as a proposition of law, that if no test identification parade is held, the evidence of the witnesses at the trial pointing out the accused as the culprit should be discarded altogether. It is important to note that there is no provision of law which requires that a test identification parade must be held. Such identification parades are generally held as a precautionary measure. The Courts take into consideration the sworn testimony of the witnesses given at the trial. The state ments made by the witnesses at the test identification parades are used only for the purposes of corroboration or contradiction of the evidence of the witnesses given in Court. The law does not permit the use of those statements as evidence at the trial, unless the persons making those statements are called at the trial.

7. I agree that it is always better to have a test identification parade to find out if the suspect who is arrested by the police during the course of the investigation is the real offender, but if for some reason such a test identification parade is not held, then I am of the opinion that the sworn 'testimony of the prosecu tion witnesses cannot be discarded merely on that score. The evidence given by the prosecution witnesses at the trial shall have to be judged on its own merit.

8. In the present case nine witnesses have come forward to testify that the petitioner had participated in the crime. They had sufficient opportunity to remember the features of the petitioner and in the circumstances of the case, they could have easily identified the petitioner as one of the culprits. It may also be mentioned that when the petitioner hired the truck from Allah Rakha (P. W. 7) he perhaps inadvertently gave his correct name which was recorded in the receipt Exh. P. E. The prosecution, witnesses had no motive to falsely implicate the petitioner. All of them are independent and disinterested witnesses. Consequently', I see no reason to doubt the statements of these witnesses.

9. On a careful consideration of the evidence on the record, I am satisfied that he has been rightly convicted under section 411, P. P. C. The sentence, in the circumstances of the case, is not severe and I accordingly dismiss this revision petition. K. M. A. Petition dismissed.