P L D 1954 Sind 279 (PLP)

LARI, J.‑The prosecution sought to adduce evidence of the fact of identification of certain accused persons by the witnesses for the prosecution at a test held by the police, but I held that such evidence was inadmissible in view of section 162 Cr. P. C., for the reasons to be recorded later. I now proceed to record the same. The prosecution case was that some of the accused persons were mixed with some outsiders, made to stand in a line at the police station, some of the prosecution witnesses were called one by one and as each witness came the Subedar asked him to pick out the assailants if any from among the persons present and each witness picked out one or other of the accused persons. This is what happens at each parade arranged by the Police. A witness is asked to identify if he could the person or persons whom he had seen at the time of the offence under enquiry arid he either orally states that so and so was present or without making any oral statement points out any particular person. The essence of identifica tion, therefore, consists either in the oral statement that so and so was the offender or in pointing out the offender by finger. No doubt the oral statement or pointing out is preceded by a mental act of identification but this mental act of identifica tion is only known to the identifier. It is, however, communicated to the witnesses or other persons present there either by oral statement or by gesture. It is this communica tion of the mental act of recognition which constitutes the result of the identification parade and is sought to be estab lished to corroborate a prosecution witness. Section 162 Cr. P. C. runs thus: "No statement made by any person to a Police Officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether, in a police‑diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made ................ The Section, therefore, excludes every statement irrespec tive of its nature. A statement may be made orally or can be made by means of gesture. In the case of a dumb person a statement is always made by gesture. If a person is asked whether the offender is present, he may reply either orally or by way of indicating the person concerned. This indication is as much a statement as the one made by word of mouth. In the New English Dictionary the word 'statement' is defined "the action or an act of stating, alleging or enunciating". When a witness picks out a person or points out to him, he no doubt alleges and consequently makes a statement. In fact, as stated earlier, picking out or pointing to out is nothing but communication of a fact or recognition and the communication cannot but fall under the word 'statement'. Their Lordships of the Allahabad High Court Lindsay and Sulaiman JJ. in the Nagina & others v. Emperor (A I R 1921 All. p. 215) observed. "Identification proceedings held in the jail seem to us to amount to this, namely, that certain persons are brought to the jail or other place and make statements either express or implied, that certain individuals whom they point out are persons whom they recognise as having been concerned in a particular crime". This description of identification proceedings was approved by Abdul Rashid, J. as he was then and till recently Chief Justice of Pakistan in the case Bhagat Ram v. Emperor (A I R 1934 Lah. p. 641.) and has been referred to by the illustrious author of Law of Evidence, Munir, C. J. in his book of evidence at page

50. The words `implied statements' had in view the picking out of the offender without any oral statement. It is conceded on all hands that if an identifier were to make an oral statement at the identification parade arranged by the Police, such a statement would be inadmissible in view of section 162 Cr. P. C. but it has been contended that mere picking out is not hit by the provisions of section 162 Cr. P. C. This stand could be upheld only if pointing out could not be regarded a statement, but it is clear to me that this is not a mere act but a communication and constitutes an implied statement. The point came up for consideration by the Federal Court of Pakistan in Criminal Appeal No. 22 of 1953, Mohammad Yunis v. The Crown and His Lordship Justice Akram observed: "I am inclined to the view that the identification before the Police during the course of investigation is hit by the provisions of section 162 Cr. P. C., and as such is not admis sible for corroboration". The other learned judges, did not express any opinion on the point as in their view evidence after excluding evidence as to identification was sufficient to dispose of the case. The following, however, appears at page 54 of the principles and Digest of the Law of Evidence by Munir, C. J. "It has, however, been ruled by almost all the High Courts in India that statements by witnesses made to the Police in the course of investigation are not admissible to corroborate the evidence given by such witnesses at the trial. It follows therefore, that when identification proce edings held by the police are not supervised by a Magistrate, the proceedings will under section 162 Cr. P. C., be inadmissible to corroborate, under section 157 of the Evidence Act, the evidence given by the identifying witness in the Court". The point in issue came for consideration before the Calcutta High Court on various occasions. In the case Harendra Nath Shah v. Emperor (A I R 1925 Cal. p. 161) a Division Bench of the Calcutta High Court had to consider whether the Sub -Inspector's evidence to the fact that "Harendra was shown to Kanai, he identified Harendra was admissible or not. Their Lordships observed: "We are clear that the statements made by Bibhuti and Kanai to the Sub‑Inspector were inadmissible under section 162 of the Procedure Code and the learned Judge should have stopped the witness when he began to depose to them". Another Division Bench of the same Court observed as follows in the case Krishna Chandra Dhenki v. Emperor. (A I R 1935 Cal. p. 311) "The only evidence on the point is that of the girl and she is sought to be corroborated by the fact that at the Thana she was shown to one Perabhat whom she did not identify but that subsequently she identified the petitioner (Krishna Chandra Dhenki) at a test of identification which was held by the Police

The statement expressed or implied which the girl must have made by way of identifying the petitioner at the Thana is hit by the provisions of section 162 Cr. P. C." A similar view was expressed by another Bench of Calcutta High Court in the case Krishnia Kahar v. Emperor (A I R 1940 Cal. p. 182.) It would be seen that the three cases quoted above did not discuss the point in detail, but the matter was fully gone into in two subsequent cases of Calcutta High Court i.e., Sheikh Kabiruddin v, Emperor (A I R 1945 (2) Cal. p. 513.) In the earlier case the question whether identification of stolen property during investi gation in presence of a Police Officer was statement within section 162 Cr. P. C. and as such inadmissible or not. His Lordship Justice Lodge observed: "The witnesses have deposed that a test identification of the property recovered from the accused persons was held in the presence of the Police Officer and that various pro secution witnesses identified before that Police Officer the articles as articles stolen from Amarendra Nath Roy's house on the night of the dacoity. It is clear that any identification of stolen property in the presence of a Police Officer during investigation was a statement made to a Police Officer during investigation, and is, therefore, within the scope of section 162 Cr. P. C. The witnesses should not have been allowed to the fact that they had identified the stolen property in the presence of the Police Officer." The other learned judge gave additional reasons in the following words: "This identification must have been by so many words or by signs, namely, by pointing out the articles with finger or by nodding of head. Pointing out by finger or nod of assent in answer of a question is just as much a verbal statement as a statement by word of mouth. Section 162 Cr. P. C., does not limit itself to statement of any particular kind. It embraces all kinds of statement made to a Police Officer in the course of an investigation". In the later case of Surertdra Dinda (supra) the matter was gone into even more thoroughly. Their Lordships observed as follows: "With the greatest respect to the learned judge, he appears to have failed to distinguish between on the one hand the actual fact of identification, which is a mental act on the part of the person identifying, seeing an object or person and recognising that the object or person seen is identical with some particular object or person, and on the other hand the communications to a third person of this mental act. The communication is of course a statement, but the identification by the identifier cannot possibly be a statement .................. With great respect we agree that the distinction sought to be made in Lela Laluug's case (supra) between an actual verbal statement and some action on the part of the identifier disclosing the fact of his identification cannot legitimately be made. Both are hit by section 162 Cr. P. C. in our opinion. Whether the witness at the parade discloses his identification by saying : " this is the accused " or whether he does it by tapping the accused or by some other code of signs, it appears to us to make no difference. The communication of his any mental act of recognition and identification to the Police is what is hit by section 162 Cr. P. C., of the Code of Criminal Procedure". Their Lordships in Surendra Dinda's case (supra) made a distinction between mental act of identification or recognition and the communication of that mental act to those persons either by word of mouth or by sign. The first is not a statement but the second is a statement and it is the later act, namely, the communication of the fact of identification that constitutes the result of the identification and is always sought to be proved to corroborate a prosecution witness. In the case of 2'. Krishnia v. The Government of Mysore (A I R 1950 Mysore 44.) a full Bench had to consider whether pointing out the accused by the girl witness when she was questioned by the Police Officer as to whether the accused was the person who raped her amounted to a statement made to a Police Officer or not, Mallapa, J. observed as follows: "As regards the distinction made between a verbal statement and identification by pointing out a person, it has to be remembered that identification is a mental act and this can only be known to the person that identifies. The fact that he identified something can only be known to others by his telling so or by his making signs conveying to them the fact that he identifies the person. While the person who identifies even before a Police Officer can say that he did so, as that cannot be a statement made to a Police Officer, the fact that that matter was conveyed to a Police Officer either by words or by signs cannot be spoken to either by him or by the Police Officer or by any person present as section 162 Cr. P. C., prohibits this being done. As observed in a very illuminating judgment in Surendra Dinda v. Emperor.(supra) "Identification is essentially a mental act

what is said or done after a mental act may be, deliberately done, to conceal the fact. In any case the actual fact of identifica tion is something known only to the identifier and can only be known to others by a statement having the effect of communicating the fact of identification. The position can be made clear by considering whether a sign made to a Police Officer by an accused conveying the idea that it is he who committed the offence is or not a statement made to a Police Officer. The accused's affirmative nod in answer to the question of investigating officer whether the girl raped by him is the girl in question cannot but be a statement to a Police Officer and thus inadmissible in evidence. If so the girl's sign to the Investigating Officer showing that the person who raped her is the accused is equally a state ment made to the Police Officer." A similar view has been taken by a Bench of Allahabad High Court in the case Daryao Singh v. The State (A I R 1952 All. p. 59.) Their Lordships observed: "It appears that after the arrest of Daryao Singh, an identification proceeding of the mare was held by a Police Officer. The learned Sessions Judge has admitted those proceedings in evidence. Statements made by witnesses to a Police Officer are inadmissible in evidence under section 162 Cr. P. C. In Surendra Dinda v. Emperor (supra) a distinction was made between the actual fact of identification which is a mental act on the part of the person identifying and the communication to a third person of this mental act. The communication is of course a statement but the identifica tion by the identifier cannot possibly be a statement. The communication of the mental act or recognition at an identification to the Police is hit by section 162 Cr. P. C". I may mention one more case Kartar Singh v. The State of Vindhya Paradesh (A I R 1952 Vindhya Paradesh p. 42.) because of the reasoning given therein His Lordship observed: "The question is whether the witnesses identifying the object or person during a test of identification is a statement which is ruled out by section .162 Cr. P. C. or another fact or circumstances, which is not. If one visualises what exactly happens during a test of identification he has to hold that it is a statement and nothing else. The men or the articles are mixed up with similar non‑suspected men or non‑suspected articles, and certain precautions are taken to eliminate prompting, accidental identification and the like. Then the person holding the test of identification calls in the witnesses one by one. He asks them to point out if any of the articles before them belongs to the house owner, or whether any of the man standing before him have taken part in the crime. The witnesses goes and either say something or touches or holds the articles or the man He need not say anything but the very process of touching or pointing out is equivalent to stating that "this article belongs to so and so, or comes from his house or this man was among the dacoits that entered the house"' Sometimes the witness states in so many words; sometimes he does this by gestures implying words. In fact, this pointing out or identifying is a statement

The only significant part of the identification is a statement by word or gesture to the following effect. This man was among those that entered so and so house, or picked so and so or was seen running away and the like". It would be most illogical to hold that when the witness states this then the identification is inadmissible, but when without stating any answer to the question he points out or touches or nods it becomes admissible. The result of the discussion is that I hold that where the test of identification is held by a Police Officer the fact that a witness identified the suspected articles or men cannot be adduced in evidence". I may now, note the authorities which have taken a contrary view. The first case to my knowledge is a Single Bench Decision of the Nagpur Judicial Commissioner's Court in the case Ramadin Brahimin v. Emperor (A I R 1929 Nag. p. 36) This is what was observed by the learned judicial Commissioner: "The witnesses, who depose to certain of the appellants having been identified by certain of the prosecution witnesses, are not, in my opinion, deposing to a statement made to the Police. They are, on the contrary, deposing to on actual fact or circumstance seen and observed by themselves. This type of evidence is, after all, only of a corroborative nature, the essential witnesses to the identification being the prosecution ones who identified certain of the appellants; but even so, the evidence of witnesses like Mr. Harvey and others does not relate to any statement made to the Police but is a simple exposition of a fact or circumstance witnessed by themselves". A similar opinion was expressed by a Bench of Madras High Court in the case Kshatri Ramshing v. Emperor (1941 Mad. p. 675.) the passage runs thus: "Now, since these identification parades were held by Police in the course of the investigation of the murder, it is clear that section 162 Cr. P. C., excludes in evidence about the statements made by the witnesses at the identi fication parade. The fact that witnesses have identified persons at parades held by the Police may be proved". A Bench of Calcutta High Court in the case Lela Lalung v. Emperor (supra) observed as follows: "Section 162 should be read upon its plain terms. According to it a statement made by a witness to a Police Officer is not evidence at a trial. Here it is not a statement of the witness which is admitted but the fact that he identified the two accused before the Police Officer in the village". All the above cases which take a contrary view overlooked the essential nature of identification. When a witness appears at the parade and sees things or men he mentally recognises some property to be his or some person. to be the offender but this recognition is known to him and to him alone. After the mental act of recognition he proceeds to express it either by word of mouth or by touching the person or article or in any other manner. This latter act of his amounts to communication of his mental act of recognition. It is the communication of recognition which constitutes the result of identification and is sought to be proved in] evidence to corroborate a prosecution witness. The learned judges in all these cases failed to distinguish, as observed in Surendra's case, between the actual fact of identification which is a mental act on the part of a person identifying and the communication to a third person of the mental act. The picking out or touching is, therefore, a communication of the identification and is nothing but a statement within the meaning of section 162 Cr. P. C. All these cases, further, concede that evidence as to identification is admissible for the purposes of corroboration under section 157 of Evidence Act. Section 157 of Evidence Act runs thus: "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved". To attract the provisions of section 157 of Evidence Act there must be a former statement. In other words section 157 can be applied only when there is a previous statement. Before evidence as to identification can be admitted under section 157 of Evidence Act it must be conceded that the evidence is a statement. If evidence as to identification is a statement within the meaning of section 157 Evidence Act, it must necessarily be so within the meaning of section 162 Cr. P. C., I fail to understand how a particular evidence can be held to be a statement under section 157 Evidence Act and not a statement for the purposes of section 162 Cr. P. C. If evidence as to identification is not a statement within the meaning of section 162 Cr. P. C. then it cannot be admitted at all under section 157 Evidence Act. It is not possible to hold that evidence as to identification is admissible under section 157 Evidence Act and at the same time is not hit by the provisions of section 162 Cr. P C. There is a clear contradiction between the two attitudes and the learned Judges do not seem to have noted this contradiction. Lastly I may refer to the case of Mor Mohammad v. Emperor (A I R 1940 Sind p. 168.) Their Lordships in this case had to deal with evidence of a Tracker in regard to foot prints but the observations made are quite general and cover identification of a person and foot prints. Their Lordships of the Judicial Commissioner's Court observed as follows: "Generally we agree with him that section 162 Cr. P. C., shuts' out statements written or oral, express or implied, made by witnesses to the Police during the course of the investigation; but care must be taken not to press this argument too far, to shut out evidence, not of what a witness said but also of what a witness saw or did. Conduct must be distinguished from speech". I am in entire agreement with the above observations but I cannot possibly concur with what follows subsequently in the following words : "A witness may say in Court what he saw or did during a Police investigation. What he saw or did is not what he said and it is what he said that is excluded by section 162 Cr. P. C., statements and not acts, subject always to the proviso that the acts are not clearly to be construed as answers to questions, such as the placing of a hand upon an accused in answer to the question of the Sub‑Inspector to a witness as to which of the persons present is the accused". In the first place in the very nature of things picking out of a person or article is preceded by express or implied question by the Police as whether the articles sought to be identified belong to the witness or whether any of the persons present at the parade was an offender, and it is not possible to construe the placing of a hand upon an accused person divorced from the nature of proceedings. In the second place ‑what the witness saw is prior and antecedent to picking out. Mental recognition is an act but picking out is a communica tion of the mental act to a third person. The first is not hit by the provisions of section 162 Cr.' P. C. but the second is. A prosecution witness may possibly state that P at the parade he had seen the accused in the line but cannot depose that he picked him out or placed his hand on the person of the accused. Such a statement apart from its admissibility, however, is of little value as there can be no evidence to corroborate it. The statement of a Mashir that so and so was present at the identification parade cannot possibly corroborate the prosecution witness as there is no knowing whether in fact the prosecution witness had actually recog nized the accused in his mind at the time of parade or not. I may here note that the case discussed above is a division bench case but it is well settled that ruling of the Judicial Commissioner's Court, Sind, though entitled to great weight, is not binding on this Court. Reference may be made to the case Abubakar v. Sahib Khatoon (P L D 1950 Sind p. 161.). I have assumed in some of my observations that evidence as to identification is admissible only to corroborate a prosecution witness under section 157 Evidence Act. To that effect is the decision of Allahabad High Court in the case Nagina and others v. Emperor (A I R 1921 All. p. 215.) and of the Lahore High Court in the case Bhagat Ram v. Emperor (A I R 1934 Lab. p. 641.) but for the purposes of the question under consideration I may concede that evidence as to identification may also be admissible in certain cases under section 9 Evidence Act. Some Judges are of the opinion that if a witness were to say that he identified certain persons at an identification parade but he could not recognize them on account of lapse of time, the identity of the person may be established by evidence of the Mashirs who were present at the time of identification under section 9 of Evidence Act. But before evidence of Mashirs or of the persons who supervised the identification can be allowed to be admitted under section 9 of Evidence Act, the prosecution witness must be allowed to say that he had identified certain persons at the parade under section 157 of Evidence Act. This would not be allowed unless it were held that his statement as to identification was a previous statement and not hit by section 162 Cr. P C. It follows there-from that evidence as to identification cannot be let in unless it be held that it is a previous statement, and consequently evidence as to identifica tion will have to be regarded as a previous statement and in the case of identification before the Police such evidence cannot be allowed because of section 162 Cr. P. C. After, a careful consideration of the language of section 162 Cr. P. C., and the authorities on the point I have come to the conclusion that in case of identification of property or person before the Police Officer or Mashir or the identifier cannot be allowed to state that any identifier witness had picked or pointed out any person or article at the parade. I have noticed that there is a general practice in Sind and Karachi that all identification whether of person or of property is done before a Police Officer. The utility of such a practice in view of this decision would be practically nil and should be discarded. All identifications may take place before a Magistrate. A. H. Evidence held inadmissible.