P (PLP)

P. C. David, Advocate‑General, for Respondent. JUDGMENT.‑

Abdul Aziz, Qutbi and Taja were convicted by the Sessions Judge, Lyallpur, under section 458 of the Pakistan Penal Code and sentenced to three years' rigorous imprisonment each. Abdul Aziz has put in Criminal Appeal No. 1029 of 1949 through Mr. Muhammad Amin Khan, Advocate, and Qutbi, Criminal Appeal No. 9 of 1950 through Mr. F. M. Anwari, Advocate. Both the appeals will be disposed of by this order. The allegations of the prosecution were that the house of Wali Muhammad in the area of Chak No. 85 J. B. was broken into on the night between 2nd and 3rd of September 1948 and the intruders, who were six in number being armed, placed the members of the household of Wali Muhammad under fear of death and hurt and decamped with cash, ornaments, clothes, etc. As none of the persons, who witnessed the incident, know any of the culprits, the first information report, which Wali Muham mad made next day in the early afternoon at Police Station, Thikriwala, did not contain the name of any of the culprits, but only some description of three of them. After investigation, the police challaned the two appellants and Taja, had two persons, Pathana and Qadar, declared absconders and produced Mauli ap prover as P. W. 1 in the case. To connect the appellants with the crime, the prosecution relied on the deposition of the approver corroborated by the evidence of certain witnesses, who, according to the prosecution, had identified them. The witnesses, who identified the appellants as two of the culprits were Wali Muhammad (P. W. 3), Sher Muhammad ((P. W. 13),. Nizam Din (P. W. 14), lama] Din (P. W. 15) and Mehar Din (P. W. 16). If the evidence of identi fication is considered sufficient, the statement of the approver need not be taken into consideration at all and could safely be ignored. I have carefully gone through the depositions of the wit nesses relied upon by the prosecution about the identity of the two appellants with two of the‑ culprits, but find that the state ments made by witnesses other than the approver cannot be used by the prosecution at all. The statements of these witnesses on the point of identification are brief and may be copied out in their entirety. Wali Muhammad (P. W. 3) at the end of his examination‑in‑chief stated :‑ I identified Taja and Aziz accused in the identification parade held in jail as well as Qutbi accused. Sher Muhammad (P. W. 13) at the end of his examination‑in‑chief said:‑ "I identified four accused in jail." Nizam Din (P. W. 14) at the end of his examination‑in‑chief stated :‑‑‑ "I identified four of the accused in jail." Jamal Din (P. W. 15) at the end of his examination‑in‑chief stated :‑ "I identified three of the dacoits in the identification parade in jail." The entire statement in the examination‑in‑chief of Mehar Din (P. W. 16) was as follows:‑ "I had seen the dacoits at the spot and I identified four of them in the jail in the identification parade." It is clear that the statements of P. Ws. 13 and 14 about identification are so sketchy as to be entirely meaningless. They did not say, nor did the Public Prosecutor or the learned Sessions judge care to ask them whom they have identified and whether they had done so at a parade before a Magistrate. The statements of these two witnesses must, therefore, be kept entirely out of consideration. The statements of P. Ws. 15 and 16, though not as meaning less as those of P. Ws. 13 and 14, are all the same just as useless. Statements made by persons at identification parades are nothing but statements under section 164 of the Code of Criminal Procedure. These statements are not substantive evi dence, but are merely previous statements of witnesses and can only be uses, for the purposes of corroborating witnesses under section 157 of the Evidence Act. As P. Ws, 15 and 16 did note identify the appellants in Court, the former statements made by these witnesses at the identification parade could not be brought on the record, because there was no statement in Court, which the previous statements contradicted or corroborated. The state ment of a witness, which a Court can rely upon if the witness appears in Court, is the statement made in Court, about a relevant fact or a fact in issue and not a state ment made before any other person or authority, unless it be a statement falling under section 288 of the Code of Criminal Procedure, or be a statement taken on commission lawfully issued or be a statement admissible under any other provision of law. A statement not made before the Court may, however, be admissible in evidence, 'if the law (for example sections 32 and 33 of the Evidence Act) makes such a statement relevant and admissible in evidence, but none of the conditions which could make the statements of the prosecution witnesses made at identification parades admissible in evidence exist in the present case. The statement of P. W. 3 is, no doubt, slightly better than those of P. Ws. 13 to 16, but that statement also is useless, because it is nothing but a former statement and there is no statement made before the Court which the former statement could contradict or corroborate. The statements made by P. Ws. 3, 13, 14, 15 and 16 about the identification of the appel lants are not admissible in evidence; and must, therefore, be kept entirely out of consideration. That only leaves the deposition of the approver against the appellants, but as a conviction cannot be based solely on the uncorroborated testimony of an approver, that statement cannot justify their conviction. Though no request was made in this behalf by the learned council for the Crown, I have considered the question whether or .not I should now fill up the gaps in the prosecution case by examining P. Ws. 3, 13, 14, 15, and 16, but have decided not to do so. If guilty persons are escaping punishment, the prosecution has to think itself for that unfortunate but possibly avoidable result. . As the evidence on the record does not justify their convic tion; I accept both the appeals and acquit the appellants. They shall be set at liberty forthwith. A. H. Appeal accepted.