P L D 1994 Karachi 122 (PLP)

Date of hearing: 5th September, 1993. The appellant Saidullah son of Karam Khan alongwith acquitted accused Hashim was tried by the learned 1st Addl. Sessions Judge, Karachi Central, who by his judgment dated 8-3-1992 convicted the appellant under section 382, P.P.C. and sentenced him to undergo R.I. for 3 years and fine of Rs.5,000 or in default of payment of fine to undergo R.I. for six months more. By the same judgment the co-accused Hashim was acquitted. The appellant has now challenged his said conviction and sentence under the aforesaid appeal. The case of the prosecution is that on 7-2-1983 between 2-30 and 2-45 p.m. the complainant Muhammad Shafi alongwith several other persons namely Waris Khan, Aslam Rustam, Jamil, Haji Khaliqdad, Haji Gul Zaman, Hakim Khan, Talib, Ajmal and Sarwar had collected at the Dera of Seth Abdul Sattar. It is stated that on the 7th of each month all the said persons used to gather together as they were members of a committee (B.C.) and each one of them used to deposit Rs.5,

000. Thereafter, a count is made and one of the persons is paid the total amount. On the said date Rs.80,000 had been collected which was lying on the cot and at that time two persons armed with fire-arms entered the room. On sheer force they took the amount lying on the cot and so also removed Rs.20,000 from the pocket of the complainant alongwith his watch. From P.W. Warts Khan Rs.4,000 was taken from his pocket and so also his Omega watch. After looting the complainant party the. accused persons. bolted the door from outside and went away. Two other associates of the accused were outside the Dera, one of them was the driver of the car and it is said that all the four managed to flee in the said car. Subsequently the complainant went and lodged the report at Police Station Gulbahar. The report of the complainant Exh.12 was recorded by S.I. Hafeezuddin Quresh while the investigation of the case was handed over to S.I. Ali Gohar Khan who proceeded to the place of wardat which was situated in Jalalabad near Block 27, Nazimabad, Karachi. He inspected the place of Wardat and prepared Mashirnama Exh.15. In the meanwhile the S.H.O. resumed his duty and took over the investigation from him. Subsequently the investigation of the case was transferred to Crime Branch and Inspector Amanat Javed of Crime Branch was entrusted with the investigation of the case. He verified the investigation which was conducted by Inspector Abid Naqvi and by Inspector Muhammad Yar Khan. He also secured one watch from acquitted accused Hashim but the Mashirnama of recovery of the said watch was not available. He also states that both the accused were identified b3 witnesses in the presence of Magistrate under Mashirnama of identification Ex.41. After completing the investigation he submitted the challan against both the accused and absconding accused Abdul Hameed. The case of absconding accused Abdul Hameed was bifurcated, a: such the trial commenced against the appellant and acquitted accused Hashim The charge framed by the trial Court was under section 17(3) of the Offence: Against Property (Enforcement of Hudood) Ordinance, 1979, which wa: denied by the appellant and the co-accused. The prosecution in support of it; case examined P.Ws. Muhammad Shafi, Ghulam Sarwar, Waris Khan, Talil Hussain, Abid Hussain Naqvi, S.H.O. P.S. Gulbahar, S.1. Ali Gohar Khan anc Inspector Amanat Javed. Thereafter, the prosecution closed its side vide exh.

33. The statements of the accused were recorded under section

342. Cr.P.C. Both the accused claimed to be innocent having been involved due to enmity. Both of them wanted to examine defence witnesses Gul Muhammad and Imam Bux and also wanted to examine themselves on oath. Both the accused were examined under section 340(2), Cr.P.C. in which they claimed to have been falsely implicated due to enmity with one Malik Alauddin who is a retired D.S.P. Both the accused claimed to have been arrested by C.I.A. Police and were shown to the witnesses at the C.I.A. Centre. D.W. 1 is Imam Bux and D.W. 2 is Gul Muhammad. Both the defence witnesses have testified to the fact that they know Malik Alauddin and Malik Azam. Malik Alauddin was a retired D.S.P. who was against the present accused due to enmity with Malik Azam. After the conclusion of the case, the trial Court acquitted the accused Hashim but convicted and sentenced the appellant, as already mentioned hereinabove. I have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. K.M. Nadeem learned AA.-G. for the State. The learned AA.-G. has very fairly not supported the conviction and sentence awarded to the appellant for two very important reasons. Firstly, the case is based on the test identification of the appellant Exh. 41 which was held on 23-6-1983 while the appellant was arrested on 3-6-1983. This means the identification parade was held 20 days after the arrest of the appellant and about 4-1/2 months after the incident. Secondly, he submitted that the Magistrate holding the identification parade was not examined in this case. The learned counsel for the appellant is also of the view that the identification parade evidence will have to be ruled out of consideration for yet another reason and that is the memo of identification Exh.41 which is a sealed document and is usually produced before the trial Court by the Magistrate in a sealed manner and the same is thereafter placed on record as an exhibit through the Magistrate. He has pointed out that in the present case not only the Magistrate has not been examined, but the memo of identification has been produced through Inspector Amanat Javed. But in any case the contents of the memo have not been deposed to and therefore the identification memo Exh.41 will not be admissible in evidence. He next contended that the case of the prosecution rests on the evidence of four witnesses namely P.W. Muhammad Shafi, P.W. Ghulam Sarwar, P.W. Waris Khan and P.W. Talib Hussain. These are the four witnesses who are said to have been present at the time of commission of offence. His argument was that in the absence of a proper identification parade evidence, the Court identification of the appellant through aforesaid four witnesses will not be of any consequence as the accused were complete strangers to the said witnesses and in support of his case he has relied on the authority reported in PLD 1981 SC

628. I have carefully gone through the entire evidence available on record and I have perused the impugned judgment. I am in agreement with both the learned counsel that the identification parade evidence and the memo Exh.41 will have to be ruled out of consideration for the reasons that the contents of Exh.41 have not been deposed to as the learned Magistrate concerned has not been examined in this case. No reason has been assigned as to why the Magistrate was not examined. Furthermore, Inspector Amanat Javed was examined and he produced memo of identification Exh.41. But it will not be out of place to mention here that he was examined after the accused had already been examined under sections 342 and 340 (2), Cr.P.C. Though the accused persons after the examination of Inspector Amanat Javed were reexamined under section 342, Cr.P.C., but the memo of identification Exh.41 was never put to the appellant or the co-accused, with the result that the appellant never got the opportunity to give his explanation irrespective of the said identification memo. Another reason for looking askance to the memo of identification is the fact that the appellant was arrested on 3-6-1983 under memo Exh.42 while the identification parade took place after 20 days that is on 23-6-1983. No explanation was given as to why the identification parade was held after so much delay. In these circumstances, identification parade evidence is ruled out of consideration. We are now left with the evidence of the four witnesses. It may be mentioned that in a given case where the accused persons are not known either by name or by face to the witnesses, in that event, the accused persons must be A got identified in a test identification parade. It is obvious that in cases where the accused is already known by name or by face, in such- an eventuality no identification parade would be required and instead the evidence of the witnesses in Court identifying the accused will be sufficient. In the present case, the accused were not known to the witnesses either by name or by face and therefore it was necessary to get the accused identified through the said witnesses immediately after the accused were arrested, otherwise the Court identification of the accused through the witnesses will not be sufficient in the absence of description and features of the accused. In this regard I may refer to the case law relied upon by the learned counsel for the appellant. In Abdul Sattar and another v. The State reported in 1981 SCMR 678 it was observed by their Lordships that "after having rejected the evidence of recovery the question was whether it would be safe to rely on the ocular evidence as admittedly the appellants were complete strangers to the prosecution witnesses. Their Lordships relied on the case reported in AIR 1929 Sindh 149 and agreed with the observation that the evidence of identification of strangers must always be scrutinized very carefully. It was further observed by their Lordships that the two Courts below erred in ignoring the discrepancy in the description of the assailants by the witnesses. Keeping in view the weighty observation made by the Honourable Supreme Court I will now scrutinize the -evidence of the four witnesses Muhammad Shafi, Ghulam Sarwar, Waris Khan and Talib Hussain as the appellant was a complete stranger to them. The evidence of these four witnesses regarding the identification of the appellant will have to be scrutinized with great care and caution. In the first instance, the complainant Muhammad Shafi had given a very general type of description in the F.I.R. but when he was examined in the Court, he did not give any description of the accused in his examination-in-chief but he was cross-examined regarding the description of the two persons, who had entered the room where the complainant and others were sitting. In his cross-examination he has mentioned one was of black complexion-and another of wheatish complexion. It may be observed that in F.I.R. the complainant did not mention the said complexion. The second witness Ghulam Sarwar has not given any description but in his cross-examination he has admitted that he was called by the C.I.A. Police on two occasions and he was informed that the accused persons have been arrested. He further states in his cross-examination that the identification parade was held 10/15 days after the incident, whereas the actual position is that the identification parade was held 4-1/2 months after the incident. The third witness Waris Khan has also not given the description of the culprits and in this regard he has also admitted in his cross-examination that he did not give the "hulia" of the accused to the Police. In fact he says that he could not properly see the culprits. However, it may be mentioned that according to Inspector Amanat Javed, watch of Waris Khan was recovered from acquitted accused Hashim but the same was never produced in the Court nor its Mashirnama was placed on record. The fourth witness is Talib Hussain who has given a different version than the other witnesses. According to this witness they were sitting in the courtyard when two persons came there and enquired about the presence of one Jabbar Kori. On their negative reply they took out fire-arms and aimed at them. Thereafter, the witnesses were taken inside the room and from there the money was picked up from the cot. This witness has also not given the description of the accused in the cross examination. This witness does not even know whether the appellant was having a beard on the day of identification or not. He also cannot give the exact time of the identification. Ho also does not know who gave him the name of appellant Saidullah after the identification. It will thus appear that in order to ascertain whether the witnesses had the opportunity to observe the features of the two culprits, it was necessary to give their description as it is only on the basis of said description that the Court could gauge whether the witnesses were in a position to identify the-accused. In a case of this nature where no description has been given, it is difficult to believe that the witnesses would be capable of identifying the accused in Court. These four witnesses have not even said in their evidence in Court that they had seen the accused persons and observed their features and that they could identify them. In the absence of description of the accused persons, delay in the holding of the identification parade, non-examination of Magistrate concerned, non-examination of one of the I.Os. Muhammad Yar Khan who had arrested the accused and prepared memo Exh. 42, the subsequent involvement of the accused in this case creates a doubt regarding, the involvement of the appellant in this case. Possibility cannot be ruled out that the accused persons were shown to the witnesses before holding of the identification parade and therefore, on account of the said reason, perhaps the witnesses were able to I8 identify the accused in Court. Taking into consideration all the circumstances' of the case, I am the view that the identification of the appellant in this case was not free from doubt. In the light of my above discussion I allow this appeal and set aside the conviction and sentence awarded to the appellant. The appellant is on bail, his bail bond is discharged. By a short order dated 5-9-1993 this appeal was allowed; these are the reasons for the same. N.H.Q./S-1034/K Appeal allowed