P L D 1967 Supreme Court 307 (PLP)

Neither the assailant nor the deceased was known to any person in the waiting hall, and it was not until the 1st January 1964, that the identity of the deceased was discovered, when his brother Imam Shah, P. W. 10, appeared before the Police and was shown a photograph of the dead man. Iman Shah's evidence was to the effect that his brother Jindal Shah had gone out from their village Abdo to do a round of his murids, By the time that he was informed of Jindal Shah's death the body had already been disposed of. The clue as to the identity of the assailant was apparently obtained from Imam Shah and turns on the fact that there was pending at that time a criminal case between Imam Shah's party and the party of another Pir known as Panjal Shah. The latter party had in August 1962, instituted a criminal case under sections 326 and 324, P. P. C., against Jindal Shah, Imam Shah and five other Syeds as well as four unknown persons for an unprovoked assault on account of trouble over marriages. The accused persons had been convicted in the case. The present appellant Alim was a witness for the prosecution; who had received injuries in the attack. There bad been a conviction by the Sessions Judge and on the 25th December, 1963, there was an appeal pending, and Jindal Shah was out on bail. Acting on information probably received from Imam Shah, the Investigating Officer, S.

1. Abdul Qadir, P. W. 12, went to Panjal Shah's village and detained three persons, namely, the present appellant Alim and two others, Chandio and Hakam Shah whom he brought to Shikarpur. On the 3rd January 1964, these three along with nine other persons were subjected to an identification test under the supervision of a Magistrate, and two eye witnesses of the occurrence, Rahimuddin, P. W. 5 and Abdul Rahman, P. W. 7 as well as one Ghulam Rasul, P. W. 4, who allegedly saw him at a distance of two furlongs from the railway station running away, picked out Alim as the assailant. Rahimuddin is a fruit vendor, at Shikarpur Railway Station and according to his evidence, he was just entering the waiting hall, when he saw the blows being struck. He was astounded and immediately ran to the Police Post, some 25 paces away and fetched two constables Manzur Hussain, P. W. 8 and Abdul Razzak, P. W.

9. This was done so quickly that both Rahimuddin as well as the constables saw a man running away at a distance. Abdul Rahman is a barber, who plies his trade in the waiting hall and he was busy saving a person when the blows were struck. Ghulam Rasul is a gardener, working at a garden, two furlongs away from the railway station, and he allegedly saw a man with a hatchet running past his garden and asked him how it happened that there was blood on his clothes. The man told him not to come near or he would be killed and continued to run little later a Police constable came by asking about the fugitive and Ghulam Rasul indicated the direction in which he had gone. There was a third eye-witness Allah Bux P .W 6, who runs a tea stall in the waiting hall. At the time of the occurrence he was attending to three or four customers. This eye‑witness was not present at the first identification parade. He attended another parade on the following day in which only Alim out of the three men brought from Panjal Shah's village was included, and Allah Bux correctly picked out Alim as the man whom he saw committing the crime. As was to be expected, no circumstantial evidence of any kind was available in the case to connect the accused person with the crime. The case therefore turns on the question whether reliance can be placed upon the evidence of the four witnesses Rahimuddin, Abdur Rahman, and Allah Bux, who actually saw the attack and Ghulam Rasool who allegedly saw the culprit escaping at a considerable distance from the railway station. It is on the point of identification that the doubts mentioned in the order granting leave appear with the utmost clearness. It is clear that none of the eye‑witnesses saw the assailant in the waiting hall up to the time when the attack was already in progress. They do not say that they even noticed Jindal Shah earlier. It was a surprise attack, without a word said on either side. The medical evidence shows that probably four main blows were struck. There were six separate injuries, but two on the left clavical and the right hand respectively could be the side result of blows that produced other more serious injuries. The major injuries were on the face, the neck and the right scapula. The assailant was in no mood to .linger on the spot. He ran away immediately after the fourth blow. It is in evidence that he dropped his shoes just outside the steps leading down from the railway station to the street in his flight. The circumstances were such that the opportunity for careful and confident obser vation of the features of the assailant was naturally slight. Rahimuddin said that on seeing the attack he was astounded and immediately turned back to fetch the police. Allah Bux said that he was confused and undoubtedly, this frightful attack made without warning in a peaceful waiting hall crowded with people was calculated to create consternation. Neither of the participants was known to any person in the waiting hall and neither had been observed at any time before the commencement of the attack, which could have taken only a very short time. Rahimuddin made the first report, in which he gave a description of the assailant, vie., that he was tall, had a black beard and wheatish complexion, was of average build, and was wearing white clothes. The description would fit a very large number of well‑to‑do agriculturists of the region. In his evidence at the trial, Rahimuddin said that he was unable to see the assailant's face. When he saw the man for the second time, he was running away from him so that his face could not have been seen. He admitted having picked out the appellant at the identification parade 10 or 12 days later (tactually on the 9th day), but said that the Investigating Officer had shown the accused to him and to the other witnesses before the parade. Yet, at the trial he said that the assailant was the accused in the dock. Allah Bux, P. W. 6, at the trial said in a straightforward manner that the accused was not the assailant, and that at the identification parade which in his case was held on the 4th January 1961, h; had picked out another man. His statement was recorded under section 164, Cr. P. C, on the 11th January 1964, that is, seven days after the identification test, the explanation given being that the Investigating Officer could not arrange it earlier, because he was busy with another case. Allah Bux said also that he was told by the third eye‑witness Abdur Rahman that the man to be picked out was a man with a mole. The third eye‑witness, Abdur Rahman, P. W. 7, said at the trial that he clearly saw the assailant and that the accused Alim was not that assailant. He admitted that he had picked out Alim at the identification test, and that in his earlier statements he had said that Alim was the assailant, but he said also that he had been shown the accused Alim separately, and that he was held to his identification by threats received from the Police. He admitted having told Allah Bux about the mole. Ghulam Rasul, the gardener, made a statement fully supporting the prosecution at the trial, but in the Committing Court, he had said that Alim had been shown to him at the Police Station sitting in handcuffs before the test, Each of the witnesses is seen to have cast doubts at the trial upon his own statement made earlier in the Committing Court. Ghulam Rasul's statement in the Committing Court was calculated to diminish the value of his identification materially, and effect must be allowed to that in relation to his statement at the trial supporting the prosecution in full. In the other three case:, the doubts were expressed at the trial itself, while the earlier statements had supported the prosecution. The statements of these witnesses made in the Committing Court were duly proved at the trial, and were relied upon by the Sessions Judge, in preference to their statements at the trial, being held to be supported by Ghulam Rasul's statement at the trial. The Sessions Judge's judgment cites in support of the view he took the High Court judgment in the precedent case of Abdul Majid (P L D 1959 Kar. 184) as well as the Supreme Court judgment in the same case, cited as Abdul Majid v. The State (P L D 1959 S C 486) besides two other cases one from Baghdadul Jadid and the other from the Lahore Bench of the High Court. In these cases, the earlier statements had been relied upon in preference to those made at the trial, but this was done upon a consideration of all the facts and circumstances of the case. Thus, in the case of Abdul Majid, an eye‑witness, who was quite independent and bore no grudge whatsoever towards the accused and who had in the case of a day‑light murder in front of his own house, clearly stated that the accused was the assailant, had said at the trial than the assistant had muffled his face, and he was unable to identify him. In the High Court as well as in the Supreme Court, it was found that this slight change in the statement was artificially introduced to diminish the value of the ocular evidence. In the Supreme Court judgment, it was said that this variation "is easily understandable and is no more than a disingenous attempt." The case was one where a patent falsehood had been introduced artificially. The precedent judg ments recognise that a witness who varies his statement in a material respect is ordinarily not entitled to be believed, but 'the process of evaluation of his evidence is not a mechanical one, and it remains for the Court to determine whether the earlier state ments supporting the prosecution are not more reliable and worthy of belief than the latter statements at the trial. In the judgment of the High Court, there is no citation of precedents, and the learned Judges have based their reliance upon those statements of the witnesses which supported the prosecution case as to the identification of Alim as the assailant, on the basis that "in the circumstances and probabilities" of the case these statements appear to be worthy of acceptance rather than the statements favouring failure of identification or as the case may be, assisted identification. The learned Judges noted that there was no indication that the Police Officers in the case had exercised any pressure upon the witnesses. They relied on the Committing Court statements of Allah Bux and Abdur Rahman together with the trial Court statement of Ghulam Rasul, and they also accepted the evidence of Rahimuddin, although he had admitted that his identification was of the assisted type. The question for consideration is whether in the judgments of the Courts below, proper effect has been given to the rule of reasonable doubt in relation to the appreciation of evidence in criminal cases. Both Courts below appear to stress that the facility afforded by section 288, Cr. P. C., is not to be mechanically employed, and that it still remains for the trial Court to consider the case in all its aspects to determine whether the earlier statements, which were not recorded in its presence were preferable to those, which the trial Judge himself saw and heard the witnesses making. They have nevertheless failed to examine the question‑what reason could there be for these four witnesses to introduce variations into their statements, which have the effect of casting doubts upon the reliability of their identification of the accused as the assailant of Jindal Shah? They have not examined for instance the extent of the opportunity for identifica tion of the assailant that was available to each of the witnesses. The fruit vendor did not wait on the spot for more than a second after the commencement of the attack. The tea stall man was attending to customers, who would naturally be in front of him, and equally the barber was shaving the beard of a man in front of him. At the best, these persons could only have had a fleeting look at the assailant. The Courts below have not noted that the incident must have caused very great consternation inside the waiting hall, that it was over within a very short time, and that the assailant did not linger for an instant in the waiting hall and immediately took to his heels. The identification tests were made after a considerable gap of time, that is 9 and 10 days after the occurrence. No particular mark of identification was available, since the description given of the assailant was one that could fit a great number of persons living in that region. What then Would their successful picking‑out of Alim at the tests on the 9th and 10th January 1964, be worth? It would show no more than that out of the 12 persons placed before them at the test, Alim was the man who most nearly resembled the assailant, whom they had seen committing the crime. Both Rahimuddin and Abdul Rahiaan, however, said at the trial that this man had been shown to them separately before the test. In the case of Allah Bux, his identification was admittedly assisted by being told of one particular mark of identification, namely, the mole. Ghulam Rasul's evidence was to be dealt with on a different basis, since it was not his statement before the Committing Court, which favoured the prosecution His evidence at the trial was therefore, to be discounted iiiimediateiy in relation to his admission in the Committing Court that he had been shown the accused separately at the Police Station Prior to the test. None of these witnesses is shown to have been under any kind of external influence. The foul which led to the murder belonged to a wholly different place and among persons whom the witnesses did not know at all. There was not a word to indicate that Panjal Shah's party tried to interfere with these witnesses in any way, e.g., by offering inducements or threatening violence. Cases in which use can justifiably be made of the provisions section 288, Cr. p. C. come before the Courts fairly frequently. One type of case is where a woman has been murdered from some suspicion of unchastity and it is often found that the witnesses, change their statements at the trial in favour of the accused person. This is attributable to a feeling that unchastity in a woman is all sufficient justification for killing. Another type of case is where the murder is committed out of faction feeling, and by the date of the trial, the opposing factions have for the time being made up their differences, their earlier statements in order to secure an acquittal. A third class of cases is where witnesses may be placed under terror, e.g., through the acquittal of some of their enemies in another case. A fourth category is that of cases where a visible and artificial variation is introduced to destroy the value of the evidence. Such' a variation occurred in the precedent case of Abdul Majid, and was easily eliminates'' The present case does not fall into any of these types. There is no reason whatsoever of an external nature shown for the witnesses to falter in their identification at the final stage of trial. A reason before must be found, which is personal and internal, and that reason can only be that they suffered from genuine doubts as to whether they were identifying the rights person. They had good reason for such doubts. Their opportunities for observation of the culprit were extremely limited. They had never seen him before. They had picked out the assailant at the identification parades but there is seen to be a clear possibility arising out of their statements that they were assisted to do so by being shown the accused, person earlier. Seven days after the identification, their statements were recorded by a Magistrate under section 164, Cr. P. C., supporting the prosecution, and from that time onwards they were under the usual pressure of prosecution for perjury , if they varied from those statements. The stage of corn was an intermediate stage, which carried on finality. But at the trial, these witnesses were faced with the position that three of them had bound themselves by earlier statements identifying the accused as the assailant. The fourth, Ghulam Rasul was in a better position, since he had already weakened his evidence in the Committing Court. Believing that these witnesses made their statements at the trial in good faith, it becomes highly probable that they deliberately introduced variations which cast doubts upon their identification of Alim from a feeling that they were unable then to say beyond doubt that be was the murderer. To adhere to their statements supporting the identification, would entail a conviction and probably a sentence of death. We think that the sole reason for the conflicting statements by these witnesses is that they felt unable to make themselves responsible for such an event. In other words, even if their identification of Alim at the tests was bona fide, at the trial they were not able to say with certainty that he was the murderer. The question of reasonable doubt must be approached in this case from a wider examination of the circumstances of observa tion, and a closer consideration of the possible influences working on the minds of the witnesses, than has been applied by the Courts below. We consider that in the circumstances detailed above, it was unsafe for the trial Judge to place full reliance only on the Committing Court statements of the three eye‑witnesses, on the point of identification, or upon the trial Court statement of Abdul H Ghafoor, ignoring what he had said in the Committing Court. The element of reasonable doubt on this point stands out very clearly. We accordingly allow this appeal and acquit Alim. K. B, A. Appeal allowed.