P L D 1961 (W (PLP)

2. Ghulam Muhammad came to Ratodero Police Station and lodged the F. I. R. on the 26th October 1959, at about 7 p, m. The report was taken down by Muhammad Pinyal S. H. O., Ratodero Police Station. On the 1st of November 1959, Muhammad Pinyal arrested Kaim, Khadim Hussain and held their identification test: Ghulam Muhammad was able to pick ahem out correctly. On the 2nd of November 1959, Ghousu and Ghulam Kadir, appellants were arrested. In the identification test of these two persons the complainant Ghulam Muhammad was able to pick them out correctly.

3. Kaim and Khadim Hussain expressed their willingness to give confession. Their confession was recorded on the 3rd of November 1959, by Sub‑Judge and F. C. M., Ratodero.

4. On the 4th of November 1959, an identification test f all the four along with one Mohib who was also a co‑accused but leas been acquitted was held. P. Ws. Gul Muhammad, Achar and Akit were able to correctly pick out all the appellants. The appellants were mixed with 5 others.

5. The appellants denied to have committed the dacoity. Kaim and Khadim Hussain stated that they gave their confession under police pressure.

6. The learned Judge found the evidence of the indentification test to be sufficient and convicted the appellants. Eke also found that the confession made by Kaim and Khadim Hussain was voluntary and true, though retracted.

7. The main contention of Mr. Hayat Junejo, the learned Advocate for the appellants, is that the identification test was not satisfactory to convict the appellants. In this connection, the learned Advocate contended that, in the first place, the prosecution witnesses had no opportunity, to see the appellants at the time of the incident so as to recognise them later on; and in the second place, he contended that the identification test does not conform to the precautions laid down by Courts.

8. All the witnesses have stated that they were able to recognise the accused persons because there was moonlight. It is admitted position that the prosecution witnesses left their village at Somani time after taking their meals. If they left their village at about 9 o'clock' in the night they are expected to have covered a distance of 7 miles in about 3 hours at the most. On the 26th of October, 1959; the Moon, according to the calendar, would rise at O '

11. Moreover, it was the 23rd of the month when the Moon will be very small. The conclusion which one would arrive from these circumstances is that their was no moonlight at the time when the incident took place. In this connection it is also noteworthy that one of the P. Ws. Gul Muhammad stated before the Committing Magistrate that he left the village at sunset time. If that is so, the incident may have taken place between 10 and 11 p.m. At any rate, in village people usually take their meal early and more so if they have to go out. The likelihood is that the prosecution witnesses and the complainant had taken their meal immediately after sunset and had not set on their journey. I would for these reasons hold that there was no moonlit night when the incident took place. There was therefore hardly any visibility for the prosecution witnesses to have seen the appellants so as to recognise them later on. The learned Sessions Judge has not considered this aspect of the case. He has taken it for granted that there was moonlit night at the time when the incident took place.

9. There is much force in the contention that the identifica tion does not 'conform to the rule laid down by Courts to safeguard against mistakes. In this connection I may reproduce a few lines from Monir's Evidence Act, Volume 1, 4th Edition page

44. The proportion of 5 : 1 has been held to be insufficient to eliminate the element of chance. It funs as under:‑ "The possibility of a witness identifying the accused by chance should be reduced as much as possible. As many under trial persons as possible should be mixed with the suspect who is put up for identification. There is no hard and fast rule laid down by the Court prescribing a particular ratio between the suspected persons and the innocent persons. Too large a number of persons should not be mixed A proportion of 5 : 1 is 6 quite sufficient to eliminate the element of chance. Each suspect should be put up separately for identification mixed with as large a number of in innocent persons as possible, in any case not less than 9 or 10." There are some cases in which a ratio of less than 2 or 10 to l is held to be sufficient. In the case of Kaim and Khadim Hussain in the identification test through Ghulam Muhammad complainant the ratio would be 1 : 3, and by other witnesses the identification of all the four appellants will be 1 :

1. I do not think this proportion of persons with the suspects was sufficient to eliminate the element of chance.

10. The very fact that the prosecution witnesses have made no mistake whatsoever in the identification test of the appellants shows that there is some truth in the allegation of the appellants that the witnesses had, already seen them before their test was held.

11. It is surprising indeed that though according to the prosecution witnesses not only their carts and bullocks have been stolen, but their rillis and clothes were also stolen, none of ‑the articles have been recovered from any of these appellants.

12. The retracted confession of the appellants Kaim and Khadim Hussain cannot be acted upon so as to convict the appellants Kaim and Khadim Hussain without any independent) corroboration.

13. For the reasons given above, I set aside the conviction and the sentences passed on the appellant. This order will dispose of Criminal Appeals J‑355‑358 of 1960. S.B. Conviction set aside