1985 PLP 721 (SCMR)

The convicts while in jail as under‑trials had been making appli?cations to the District Magistrate Bind the Sessions Judge, Bahawalnagar, for their identification by the witnesses. One such application made to the Sessions Judge on 5‑2‑1976 makes mention of ealier applications having been made but not attended to. Notice was given to State but it was dismissed by the Sessions Judge due to non‑appearance of any of the under‑trials who were in jail. Another application was made on 27‑3‑1976 on which the Sessions Judge directed the identification parade and it was held on 24‑4‑1976 and was conducted by Mian Ehsanul Haq, Magistrate 1st Class. The request made by Khadim and Yousaf was that Ghulem Hasan, Kaley Khan and Sharif should be asked to identify them while Ghulam Abbas wanted identification from Kaley Khan and Sharif ' On this application it appears that all the material witnesses were called for identification on 27‑4‑1976. Kaley Khan did not turn up at the identification parade and was excused on the ground that he was indisposed. In the identification parade none of the witnesses was able to identify Yousaf. Ghulam Hasan, Bashir Waheed and Muhammad Bakhsh identified the two appellants. Sharif P.W. identified none and Sadiq identified only Ghulam Abbas. The appellants and their co‑accused denied their participation in the occurrence and the other allegations against them made by the prosecution witnesses. They all explained their involvement in the case on account of enmity and suspicion. In defence they produced one witness and a number of documents to show the background of the enmity. Dr Zulfiqar Ali Burq D.W.1 Eye Specialist examined Ghulam Hasan P.W. On 4‑11‑1978 and reported that his vision was only 50 per cent on account of senile cataract. The learned trial Judge was convinced of the correctness of all the three motives attributed to Nazar Muhammad the acquitted accused and independently of the sufficiency of each one of them. He concluded by holding that:‑ "The statement of the complainant supported by Bashir Ahmad, P.W.11 coupled with the photo-stat copy Exh.P.R. I am convinced that there existed a long‑standing enmity between the deceased Ghulam Farid and the accused Nazar Muhammad and his son Ghulam Abbas and that the latter had an adequate and sufficient motive to commit the murder of the deceased Ghulam Farid," The ocular evidence getting further support from the identification parade was held to be sufficient to prove the case against Khadim Hussain and Ghulam Abbas making the case of Muhammad Yousaf doubtful. The extra‑judicial confession made before Waheed P.W.4 and Sadiq P.W.3 was considered reliable to the extent to Khadim Hussain t A was not believed as against Yousaf. The identification parade proceedings were also held to prove the case against Khadim Hussain and Ghulam Abbas. The recovery of the incriminating articles was found fully proved. On these findings, the learned trial Judge held that the case against the two appellants was proved beyond reasonable doubt and convicted them under section 302/34, P. P. C. Khadim Hussain appellant was sentenced to death and a fine of Rs.1,000 or in default to suffer one year's R.I. and on account of young age, Abbas was sentenced to life imprisonment and a fine of Rs.1,000 or in default to suffer one year's R.I. The fine, . if recovered, was made ppyable to the heirs of deceased as compensation under section 544‑A, Cr.P.C. Nazar Muhammad and Muhammad Yousaf were given the benefit of doubt and were acquitted. While dealing with the confirmation of the death sentence and the appeal of the convicts, the learned Judges in the High Court disbelieved the first two motives advanced by the prosecution but concluded that the third motive was sufficient and expressed themselves in the following words:‑ "In our view, the immediate cause and motive for the murder of Ghulam Farid was the dispute with regard to the ownership of agricultural land in which Nazar Muhammad and Khadim? Hussain appellants were both interested." The learned Judges, however, held that eye‑witnesses had satisfactorily accounted for their presence on the spot and were natural witnesses, Identification, according to the learned Judges, was possible as held by them hereunder: "All the eye‑witnesses have clearly stated that the appellants had caused the injuries to Ghulam Farid deceased. There was no chance of any mistaken identification because the occurrence had taken place on the 16th of the lunar month at about, 11.30 p.m. when there was almost full moon in the sky." The identification of the appellants by Ghulam Hasan P.W.10 on 27‑11‑1976 in the parade held by Mr. Ehsanul Haq M.I.C. was held to corroborate this identification. As regards the discrepancy in the medical evidence and the ocular version, the learned Judge held as follows:‑ "The fact that all the injuries found on the dead body of Ghulam Farid are attributable to an axe does not exonerate Ghulam Abbas appellant of the charge of murder, because he is vicariously liable for the said murder in view of the provisions of section 34, P.P.C. He had joined Khadim Hussain appellant for committing the murder of Ghulam Farid as is evident from the fact that it was he who had severed the head of Ghulam Farid from his body because according to the Medical Officer who conducted the post‑mortem examination, the head of the deceased had been cut with a knife. It is immaterial that the head of Ghulam Farid was severed after his death because that fact clearly establishes that Ghulam Abbas had shared the intention of Khadim Hussain appellant in so far as the murder of Ghulam Farid was concerned." The recoveries got made by these appellants and their blood‑stained clothes were found to further prove their guilt. Hence finding the case of the prosecution proved beyond all reasonable doubt, the High Court confirmed the sentence of death of Khadim Hussain and of life imprisonment of Ghulam Abbas. The marked inconsistency between the medical evidence and the ocular evidence requires consideration in this case. The appellants, one of whom was armed with hatchet and the other with a knife, are said to have both given blows to Ghulam Farid with their respective weapons. Thereafter Ghulam Abbas is said to have severed the head from the trunk and Khadim threw the head in the fields. According to the doctor's opinion, except for the injuries indicating severance of the head from the trunk, all the five injuries on the person of Ghulam Farid appeared to have been caused by a hatchet. The dimensions and the nature of the injuries also bears this out. By a memo. dated 1‑10‑1975 Exh.P.D. Gul Muhammad, S.I. the Investigating Officer, had elicited further opinion of doctor pointing out the objection of the Prosecuting Inspector that the medical report contradicted the ocular version contained in the First Information Report that knife injuries had also been given to Ghulam Farid. The doctor had replied in the following words:‑ ' "From the nature and size and shape of the injury No.2 it is possible to inflict that injury with a big size knife and injury No. 5 could also be inflicted by the knife." The knife that has been recovered at the instance of Ghulam Abbas which is stated to be blood‑stained though blood had disintegrated by the time it reached the Serologist had a blade of only 4 and 3 quarter inches. It cannot on any analysis be called a large knife, such as may satisfy the description of the knife provided by the doctor. This inconsistency remains unexplained. The eye‑witnesses have stated that none of them was able to reach the roof. They all saw the occurrence from down below from the courtyard. There is a slight discrepancy on this point too. Kaley Khan P.W.7 stated about the presence of Yousaf at the time of occurrence as follows: ‑ "Yousaf was standing near, while Abbas armed with a knife and Khadim accused armed with hatchet were giving blows to Farid deceased. Yousaf accused was continuously raising LaIkAra that nobody should interfere. Both the accused Khadam and Abbas separated the head of Ghulam Farid from his body and Khadam accused threw the head of Ghulam Farid down on the ground from the roof of the Kotha. The three accused then came down from the stair and they ran away passing near us. They were raising the alarm and we did not physically intervene as they were armed." The other two witnesses Ghulam Hasan P.W.10 and Bashir P.W.11 stated that Yousaf had not gone to the roof but was standing at the stair and making the rescue of the deceased by the witnesses impossible. Ghulam Hassan P.W.10 sounded a very discordant note by stating that "The murder of Ghulam Farid has actually taken place on the roof of the Kotha which is used as a Girls School". What he stated about the severance of the head of the deceased from the trunk may also hold good with regard to other witnesses. He stated as follows:‑ "We heard only the alarm raised by. Ghulam Farid when we were in our house and we rushed to the spot hearing the same. When we reached the spot we saw Khadim Hussain and Ghulam Abbas giving beatings to Ghulam Farid. We did not see the actual process of severing of the head, but Khadim Hussain was holding the head in his hand when he got up. We had seen Khadim Hussain and Ghulam Abbas in kneeling position over the cot of Ghulam Farid, when they were separating his head. The whole occurrence happened in 4 or 5 minutes." It is also in the statement of Muhammad Sadiq P.W.3 that the services of footprint trackers were employed for tracing the identity of the assailants. He said:‑ "Said Muhammad Mohar Foot Tracker was busy in tracing the footprints of the assailants. Four or five other persons were also helping Said Mohar in tracing the footprints of the assailants." This would indicate that the identity of the assailants was not free from doubt in spite of the claim of three persons to have actually witnessed the occurrence. A closer scrutiny of the evidence on record would have led to the conclusion that the evidence of motive and of the identification parade were of no avail‑‑at least to the prosecution. It was never the case of prosecution that Khadim Hussain had independently any motive to commit the murder of Ghulam Farid. On the contrary, the prosecution evidence was directed to show that Nazar Muhammad had such a strong and sordid motive that he wanted the severed head of Ghulam Farid and the handing over of it was made a condition for extending full protection to those responding to his promptings. How could Nazar Muhammad so readily withdraw support knowing full well that the deed had been accomplished for sure and his own young son was equally involved in it. Besides, the land dispute which has been accepted as the immediate cause of the occurrence exhibited no such feature. That litigation was between Ghulam Hassan P.W.10 and Ghulam Farid deceased (plaintiffs) and Talib Hussain (sole defendant). It was instituted in 1971 and related to the correctness of a mutation attested on 29‑3‑1944. No property right of Khadim Hussain appellant was even indirectly involved. It had already been pending for four years. The close relationship of the parties and the antecedents of witnesses should have been taken note of. Khadim appellant is the first paternal cousin of complainant, as was Talib (defendant). A sister of Talib and Khadim (Mst. Azizan) is married to Abdul Majid another son of complainant. Abbas appellant is the son of brother Nazar Muhammad of the wife Ghulam Sakina of the complainant's deceased son Ghulam Farid. In view of this relationship does the identification by Ghulam Hassan P.W.10 of the two appellants in an identification parade held eight months after the occurrence serve any purpose. Bashir P.W.11 is a son of another brother of the complainant, and is also his son‑in‑law. His identification of the two appellants, has therefore, the same futility. Abdul Waheed P.W.4 admitted that he knew Khadim Hussain appellant since three or four years before the occurrence and he used to meet once or twice a year on visit to the village. Abdul Waheed and Sadia were not witnesses of the involvement of Ghulam Abbas appellant and identification of Abbas by them was of no value. It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime, and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown I L R 51 Lah. 396 in following words:‑ "The mere fact that a witness is able to pick out an accuses person from amongst a crowd does not prove that he has identified that accused person as having taken part in they crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight." None of the witnesses was able to identify Yousaf, the acquitted accused. This reflects on the credibility of Waheed P.W.4 and Sadiq P.W.3 who claimed to have heard the extra‑judicial confession from him, and to have kept him with them for an hour or so before producing him before the Investigating Officer. It also reflects adversely on eye?witnesses who were prevented from rescuing Ghulam Farid by Yousuf who came closest to them, shouted the longest and was the one to have threatened them. How could their claim to have identified others be unquestionably accepted, when they failed to identify Yousuf. As regards the recoveries, the witness Muhammad Sadiq P.W.3, who has not been believed with regard to extra‑judicial confession, who failed to identify Yousuf, stated about himself as follows:‑ "It is correct that I was a P.W. in a murder case of Police Station Chistian, registered at the instance of Saida son of Admera. In that case I was an eye‑witness and it is incorrect that I was a witness of? recovery and of confession. Whenever police comes in the village in connection with the investigation of the case, they visit my Dera and I become a witness of the prosecution. Sometimes, I join the investigation of a case and at others I do not join the investigation. An overall consideration of the evidence on record irresistibly leads to the conclusion that it does not satisfy the accepted requirements of safe administration of criminal justice. Hence the appellants were entitled to the benefit of doubt. These appeals are accepted. Their conviction and sentence is set aside. The appellants shall be released forthwith unless their detention is required in some other case. M.Z.M???????????????????????????????????????????????????????????????????????????????????????????????? Appeals accepted.