1991PCr (PLP)

4. Both the appellants have denied the case of the prosecution by alleging enmity with the prosecution witnesses. They, however, led no defence.

5. During the tendency of the case the main accused, viz., Ghulam Nabi absconded. The case proceeded against the present appellants who were found guilty and convicted accordingly.

6. I have heard Mr. Abdul Haleem Pirzada, learned counsel for the appellants and Mr. Zawar Hussain Jafferi, learned A.A.-G. for State. The latter has supported the conviction recorded against the appellants. 7 The fact that deceased Ranjho died an unnatural death after sustaining rifle shot wounds is not in dispute. Dr. Yar Muhammad (P.W.10) who had conducted the autopsy on the dead body of Ranjho has deposed to this effect and his evidence is not questioned on this aspect of the case

8. The case of the prosecution mainly hinges upon the evidence of Awatmal (P.W.1), and Narain (P.W.2), father and brother of deceased. Ranjho respectively. Both of them have given the, facts leading to this incident. They also claimed to have picked up both the appellants in the test held under the supervision of a Magistrate. Since the case of the prosecution is solely based upon the evidence of these two witnesses, I have carefully examined their evidence in the light of the circumstances available on record to satisfy myself whether they had any occasion to identify the appellants in the manner described by them or their version about the identity of the appellants has rendered doubtful or improbable by any circumstance or having regard to the natural course of events. Quite admittedly the night of incident was dark. There is no indication on record about the source of identification. Awatmal (P.W.1) claimed to have identified the appellants on the torchlight lashed by appellants Lutuf Ali in order to find out the valuable articles in the hut. In ordinary course of human conduct the persons who had selected such an odd hour for committing robbery must have concealed their identity. The present appellants were admittedly not known to any of the above two witnesses. Awatmal (P.W.1) has further admitted that he had not given the features of the appellants in F.I.R. Narain (P,W.2) claims to have given the description of the assailants in his 161, Cr. P.C. statement, but the following admissions made by Pir Bux S.H.O. (P.W.8) belie his version: "I see the F.I.R. and say that the complainant has not stated about the description and features of accused Lutuf Ali, but has only mentioned that he would identify accused Lutuf Ali when he will see him. Naroo has not stated before me about the features or description of accused Lutuf Ali... The complainant has not mentioned about the description of accused Punhoon in the F.I.R. and so also P.W. Naroo has not disclosed about the features and description of accused Punhoon before me."

9. The evidence of identification in a situation like this per se is a weak type of evidence. Monir in the Law of Evidence has observed that: "Identification at night during a dacoity when the people are terrorised is generally of very little value." It was again remarked by him: "Chances of error in identification become greatly increased when the identification is based upon a momentary glimpse in the confusion and excitement of the moment at night though it may be a moonlit night."

10. While examining the evidence of identification in dark night on torchlight in the case of Hamzo and another v. The State reported in 1983 P Cr. L J 892 a Division Bench of this Court observed: "The eye-witnesses i.e. Lakhano, Ghulam Muhammad and Abdul Aleem have claimed that they had identified the appellants and the acquitted accused in the light of the torch which was flashed by P.W. -Ghulam Muhammad. It is doubtful if in the light of the torch the witnesses could have correctly identified the culprits in the dark night. The incident had taken place at 8-00 p.m. in the month of February. Admittedly it was dark night. In the flash of the torch the witnesses could only have a momentary glimpse of the culprits and, therefore, it cannot be said that the witnesses were able to identify the culprits with certainty. Learned counsel for the appellants has, in this connection, referred to the decision in the case of Muhammad Nasim Agha and another v. The State 1978 P Cr. L J 579, in which a Division Bench of this Court held that no reliance can be place on the evidence of prosecution witnesses who are alleged to have had only a momentary glimpse of the culprits in the street lights. In another case reported in 1970 P Cr. L J 633 it has been held that on the point of identification, evidence of witnesses who claim to have identified the culprits in dark night in the light of torch, is always unreliable. This is particularly true in the case of incidents in which several persons are involved as in the present case."

11. It may be noted that none of the prosecution witnesses had a torch with him and the identification of the appellants is said to have been made on the light of the torch flashed by one of them. There is no logic in this version, which lacks common sense. In the case of Lal Pasand v The State reported in P L D 1981 SC 142, their Lordships of the Supreme Court warned against the dangers of errors in identification and disbelieved the evidence of a witness who was otherwise found to be an honest one. At page 145 it was remarked: "However, even if we assume for the sake of argument that the witness was a paragon of truth, this will not help the prosecution case, because it is not the appellant's case that Saadullah Khan had identified him dishonestly and falsely out of spite. On the contrary, the appellant's case is that Saadullah Khan was an old man, who had seen the murderer only for half a minute, or a minute, therefore, this old man could not possibly have identified the murderer after a delay of four or five months, the more so, as the old man had not given a description of the murderer in his statement to the police, which was given very shortly after the murder. This is the real point, which requires examination. Can the possibility of an honest but erroneous identification be ruled out? And, even if Saadullah Khan had not been an old man, we do not see how, in the circumstances of the case, the possibility of an erroneous identification by the witness could be ruled out. It is true that the witness said that he had identified the appellant, because he had green eyes and a thin neck, but in this part of the world there are so many people with green eyes and thin necks. And, further, we do not know whether this explanation of the witness was a form of rationalisation after the event, because he had not given any description of the murderer in his statement to the police. But, if the murderer had any physical features which distinguished him from other people whether it be green eyes or a thin neck, it was the witness's duty as a retired police officer to give the description of the assailant whatever it be in his statement to the police and as he did not this cannot but react against the entire prosecution case."

12. According to the case of the prosecution appellant Lutuf Ali was arrested on 12-10-1973 and he was picked up in identification test held on 15-10-1973. Awatmal (P.W.1), however, admits in clear terms that appellant Lutuf Ali was arrested by the police on the second day of the incident, viz. 2-10-1973. He was, therefore, in wrongful confinement for about ten days when he was actually shown to have been arrested. The case as unfolded by Muhammad Yousuf (P.W.4) who had supervised the identification parades and Pir Bux S.H.O. (P.W.8) who had arranged the parades makes it clear that there were two identification parades, one on 15-10-1973 and the other on 22-10-1973. The evidence of Awatmal (P.W.1) and Narain (P.W.2), however, gives an impression that there was only one identification test in which both the appellants were picked up. In Amira and 6 others v. The State reported in 1968 P Cc. L J 1876, it was held that the mere fact that the witnesses correctly picked up accused in identification test is not in itself sufficient to connect accused with the crime. The case of Muhammad,, Hassan and another v. The State reported in P L D 1970 Kar. 413 is again relevant in this behalf, wherein it was held that no weight can be attached to such identification evidence where there was possibility of the witnesses having seen the accused in police lock-up before the actual test was held. An identification test has, by itself, no independent value and it only furnishes corroboration to the evidence of eye-witnesses and if it is found that the eye-witnesses had no proper opportunity to see the accused at the time of actual incident, no reliance can be placed upon the evidence of identification parade.

13. The recovery of a revolver at the instance of appellant Punhoon has got hardly any value as according to the case of the prosecution itself this appellant was armed with a rifle at the time of incident, which too was not used. Even otherwise Pathan (P.W.11) who has acted as Mashir of recovery has not supported the case of the prosecution and the co-Mashir was not examined.

14. Having heard the entire evidence minutely dissected by counsel on both the sides it is perfectly clear to my mind that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt. Accordingly the conviction recorded against the appellants is set aide and they are acquitted from the charge. The appellants who are on bail arc discharged from their bail bonds. The appeal is accepted. N.H.Q./L-54/K Appeal accepted.