1991 P Cr (PLP)

The appeal against conviction and sentence moved by Muhammad Rafique, convict and petition for enhancement of sentence, moved by Najam Khan, arise out of a common order of the District Criminal Court, Mirpur, passed on August 30,1990, as such these are disposed of together.

2. Rashda Najam Khan of 7/8 years was the daughter of Najam Khan and niece of Muhammad Yunus complainant. She was resident of village Kalyal Bainsi, Police Station Mirpur. On March 26, 1987 she left her house at 12 o'clock noon, to see her maternal-grandmother in the same Mohallah. At 3 p.m. Mst. Balqees Begum, her mother went to the house of her mother to bring back the child when she was informed that the child had left for home much earlier. The child did not turn up, so the family members, in anxiety and anguish, started the search. Report of disappearance was made to the police at 7-30 p.m. The complainant suspected of foul play with the child on account of past enmity with some villagers including one Mazhar Hussain. The Investigating Agency joined the suspects in inquiry. On March 31, some limbs of dead body were found in the field, as a result of tampering with the dead body by wild animals. That led to recovery of the dead body in a decomposed condition from a cow-dung heap. Left. leg, right arm, lower abdomen, scalp, muscle of face, throat and upper chest were found missing. The body was identified,, by the clothes on the body. It was covered with `Shalwar' and `Oamees' torn into half. The post-mortem was made on the same day. The cause of death could not be discovered because of absence of internal and external organs of generation and missing parts of the body. However, it was identified as body of female of tender age of 8 years. The probable duration of death was 4 to 10, days.

3. Mazhar Hussain was arrested on March 27, 1987, whereas Muhammad Rafique, convict-appellant and Mst. Bashir Begum, his wife, were arrested on April

2. They remained in police custody till April 17, 1987 when Mazhar Hussain and Mst. Bashir Begum were released for want of evidence, under section 169, Cr.P.C. and the appellant was sent to judicial lock-up. On trial, he pleaded not guilty. The trial Court found him connected with the offence of murder of Rashda Najam Khan. He was convicted and sentenced to life imprisonment.

4. Ch. Muhammad Taj, the learned counsel for the convict-appellant argued that it was a case of no evidence as the convict was not connected with the alleged incident by any remote piece of evidence. The learned counsel assailed the finding of the trial Court and argued that the trial Court misdirected itself in recording conviction. He led the Court through the evidence of the witnesses and emphasised that the prosecution failed to prove its case beyond reasonable doubt. Khawaja Ali Muhammad, the learned counsel for the complainant supported the impugned order and argued that the circumstantial evidence necessary to link the accused with the alleged offence of kidnapping and murder was sufficiently available, as such he was not entitled to acquittal.

5. To connect the accused with the alleged offence of kidnapping and murder, the prosecution produced Muhammad Yunus, Mst. Balqees Begum, Robina, Saima, Ghulam Mustafa, Mst. Said Begum, Mst. Jannat Bi, Abdul Karim, Muhammad Boota, Najam Khan, Ch. Rehmat Khan, Raja Abdul Majid Khan, S.D.M., Solibat Ali, Patwari, Dr. Muhammad Bashir Bhatti, C.M.O., Lady Dr., Mrs. Nasim Firdaus, D.H.O., Muhammad Yaqub, Constable, Raja Muhammad Rashid, A.S.I., Raja Muhammad Latif Khan, D.S.P., Raja Rab Nawaz Khan, S.I., Ch. Muhammad Afzal Khan, Inspector and Muhammad Kabir Khan, S.H.O.

6. The first set of evidence relates to disappearance of the child on the day of alleged incident. Mst. Balqees Begum, mother of the deceased, Mst. Jannat Bibi, sister of Mst. Balqees Begum and Mst. Said Begum deposed about the disappearance of the deceased on the day of alleged incident. They also described the clothes, which the deceased was wearing at the relevant time. Saima and Robina were contemporaries of the deceased. Both the witnesses disclosed that they were playing together when the deceased departed to collect `Phallian' and thereafter she disappeared. It is un-denied that the aforesaid witnesses do not connect the convict with the alleged offence.

7. The other set of material evidence which, according to prosecution, linked the accused with the alleged occurrence, consists of recovery of hair of the deceased from the blood-stained bag collected at the instance of the convict, on April 2, vide memo. Exh. P.C. and blood-stained bag, Exh P.D. Both the recoveries were alleged to have been made at the instance of Muhammad Rafique, convict. The recovery,, was made by Raja Rab Nawaz Khan, S.I. in presence of Ghulam Mustafa and Muhammad Yunus, P.W s. Muhammad Yunus is the complainant and paternal-uncle of the deceased. Ghulam Mustafa is first cousin of Muhammad Yunus. The recoveries of the aforesaid two articles described in Exh. P.C. and P.D. were not identified and proved in the testimony of Ghulam Mustafa. The evidence of this witness, therefore, goes out of consideration. Muhammad Yunus, undoubtedly, proved the recoveries of the items described in Exhs. P.C. and P.D. However, he misdirected himself when he stated in examination-in-chief that the blood-stained bag and hair attached to it, recovered at the instance of the accused, were the same, which were shown to him in the open Court, by opening the parcel No.4. The witness further misled himself by identifying the hair purported to be of the deceased, recovered vide Exh. P.D The fact of the matter was that the alleged hair of the deceased were recovered vide Exh. P.C. and not Exh. P.D. The memo. Exh. P.D. pertains to recovery of blood-stained bag. Parcel No.4 contained the hair of the deceased weighing 18-20 grams, recovered from the place where the dead body was found. This recovery was made on March

31. Muhammad Yunus was not the witness of this recovery. The witnesses of the recoveries were Ghulam Mustafa and Nek Muhammad. This led to suggest that the recovery of the hair of the deceased and blood-stained bag purported, to be made at the instance of the convict was not free from doubt. This position, coupled with the statement of Raja Rab Nawaz Khan, S.H.O. whereby he, in answer to a question in cross-examination, stated that nothing was recovered at the instance of Muhammad Rafique accused, leads to an inference favourable to innocence of the accused. The testimony of Raja Muhammad Latif Khan, D.S.P. is also relevant on the point of recovery. The witness, in answer to a question in cross-examination, explained that the identification of the culprit was made with the assistance of military dogs, brought from Rawalpindi. The date of identification given by the prosecution is April

16. It is explained by the witness that at the time of identification of the culprit through the trained dogs, the accused-convict was not arrested. This testimony is in conflict with the recovery memos. Exhs,, P.C. 'and P.D., which show the mode of recovery at the instance of the accused while under arrest. It was elaborated by the Police Officer that the arrest of the accused was made on the satisfaction by identification and his link with the occurrence, on the identification by the dogs. The prosecution evidence relating to recovery made at the instance of the accused is of help to connect the convict-appellant with the liability of murder of the deceased.

8. The prosecution, on finding no clue of the murder, resorted to seek assistance of the military trained dogs, to find out the actual culprit. Thus, military dogs were brought from Rawalpindi. The identification parade was organised on April

16. It was in the identification parade that the military dogs pointed out the convict as having been connected with the murderous offence The identification was made as the ao ; sat in front of the convict. The evidence pertaining to identification parade consists of testimony of Raja Abdul Majid Khan, S.D.M., Mirpur, Ch. Rehmat, Raja Muhammad Latif Khan, D.S.P., Ch. Muhammad Afzal, Inspector and Raja Rab Nawaz Khan, S.H.O. Here, it is relevant to state that the record shows the date of arrest of Muhammad Rafiquc and Mst. Bashir Begum as April 2, whereas Mazhar Hussain was arrested on March

27. On the date of identification parade, all the 3 accused were shown under arrest. On the next date, Mazhar Hussain and Mst. Bashir Begum were released and Muhammad Rafique was sent to judicial lock-up. In presence of the aforesaid admitted and proved position of the prosecution's case, next _ we examine the evidence of the aforesaid witnesses.

9. It is noticed that the Magistrate was not shown,, to have been requested by the police to hold identification parade under his supervision. No such request or order of the District Magistrate or any higher authority was brought on record. The witness was also unaware of any such request or direction. The Magistrate prepared no memorandum of identification parade, to enable him to give true account of the identification parade, connecting the accused with the alleged offence by identification by the military trained dogs. The Magistrate failed, while appearing as witness, to identify the accused and also expressed his ignorance about the particulars of the convict, at the time of deposition. However, on reminding of the Court, the witness identified the accused as one found connected with the occurrence by the trained dog. The witness stated further that the dog sat in front of Muhammad Rafique and Mst. Bashir Begum who were standing in a row together. His statement before the police, Exh DA., was also to the similar effect. But the witness elucidated that the dog sat in front of the convict and not in front of his wife. The witness further explained that at the time of identification parade, the accused were not under arrest and hand-cuffed. The testimony of this witness inspired no confidence as the witness prepared no memorandum of the identification parade containing manner of identification parade, the number of persons put to identification parade and the course and device adopted therein. This was important as the witness referred to identification of the culprit by a dog, whereas the police witnesses in their statements, referred to two dogs which took part in the identification parade.

10. Ch. Rehtrat Khan explained that 60/70 persons of the village were made to stand in the row. Thereafter, an Army dog was released. The packet of clothes of the deceased was brought on the site. The packet was opened and the clothes,, were smelt by the dog. The dog then on having a round in front of the row of 60/70 persons, sat in front of the convict. He explained that the purported,, clothes of the deceased were brought by some relative of the deceased from home and the same were opened for smelling of the dog. The clothes were taken back to home. He further stated that the identification parade was made a month or two after .the recovery of the dead body. The witness was unable to give names and particulars of the persons who joined the identification parade. The aforesaid leading features of the identification parade are quite contradictory to the testimony of Raja Abdul Majid Khan, P.W. The police witnesses gave altogether different versions. Raja Muhammad Latif Khan, D.S.P. disclosed the manner of identification parade. According to him, the army dogs, first of all, smelt the clothes of all the persons standing in a row. On the first round, the dogs sat in front of the accused and started pulling his clothes. The Magistrate then twice changed the position of the culprit but on every 3 times, the dogs sat in front of the culprit and pulled his clothes. The dogs were given to smell the clothes of the deceased recovered from the dead body, which were wrapped in a sealed parcel. The witness in reply to a question in cross-examination disclosed that the identification parade was held in the month of October, November, or December 1987. The fact of the matter was that the identification parade was held on April

16. He further explained that the military dogs also sat in front of Mst. Bashir Begum, wife of the convict. It was elaborated that the men who participated to the identification parade, were standing on one side and the women on the other side. The witness further stated that the clothes of the deceased brought for the smelling of the dogs, were sealed in a parcel. The parcel was opened before the Magistrate and after the identification parade, the clothes were again sealed in a parcel. All the material points disclosed in the testimony of this witness, find no corroboration from the testimony of the Magistrate in whose presence the identification parade was made.

11. Muhammad Afzal, Inspector, disclosed that four accused, Mst. Bashir Begum, Muhammad Rafique, Mazhar Hussain and Muzaffar were arrested prior to the date of identification parade. The list of the names of persons who joined the identification parade was prepared and their particulars were described therein. Muhammad Rafique and his wife were under arrest, but they were not hand-cuffed. They were released prior to the arrangement of the identification parade. In contradiction to the statement of the D.S.P., the witness stated that Muhammad Rafique and his wife were standing together. The army dogs identified the accused by turn.

12. The identification parade is desired to take place in presence of Magistrate for its evidentiary value as the identification Proceedings before the police are of no use as the statements of the witnesses in support of such identification proceedings cannot be used Therefore it is enjoined upon the Magistrate who conducts the identification parade to take an intelligent interest; in the proceedings, keeping, in mind that the life and liberty of an accused may depend upon his vigilance and caution The Magistrate must bear in mind that he has to do justice to the identification proceedings and in order to do so he has to make a note of any objection made by the accused to the proceedings and also to prepare the memorandum of the manner, device and standard of the proceeding, to enable the Court to Judge the value of the identification evidence. An suspicion or doubt, clumsiness or wavering expression shown in the identification parade, has to be watched vigilantly as all these factors carry valuable importance in judging the perception of identifying person or animal as in the present case.

13. Where the identification is sought to be made by military trained dogs, as a matter of prudence caution has to be taken by the Magistrate by testing the perception of skill of identification by the dogs In the present case no such test was shown to have been made by the Magistrate before leading to identification parade. The identification parade was not even accompanied by a memorandum of the Magistrate to enable the trial Court to satisfy that the identification parade was carried free from fault and doubt.

14. The other allied `important aspect of the identification proceedings relates to its evidentiary value The evidence of identification is always taken into consideration as corroborative piece of evidence as such evidence is not relevant status of primary evidence In present case as noticed earlier, there was no circumstantial evidence so as to believe that the convict one way or the other, was linked with the occurrence of kidnapping and murder of the deceased. The alleged recover purported to be made at the instance of the accused was not found of any linking value That evidence was not proved satisfactorily against the accused The evidence of identification proceedings was equally very weak for its being _, faulty and sceptical One niece of weak evidence is not enough to corroborate another niece of weak evidence Therefore no conviction can be based on such sets of evidence particularly, on the charge of offence of capital punishment.

15. The blood-stained bag and hair, recovered at the instance of the accused vide Exhs. P.D. and P.C. were sent to the Chemical Examiner. The report of the Chemical,, Examiner Exh. P.Z. disclosed that the (Boree),, (bag) was stained with blood. It was not explained that it was a human blood. Parcel No.8 vide item No.6, sent to Serologist by the Chemical Examiner for determination of the origin of the blood and blood-grouping, was not declared as stained with blood of the deceased. It was explained in report Exh.P.Z./1 that the samples sent to the Serologist were not sufficient to determine the blood-group. So far as the hair recovered at the instance of the accused are concerned, no definite data of identification or resemblance to the admitted hair of the deceased, was given in the report. The evidence of the alleged recovery at the instance of the accused is, therefore, of no consideration.

16. The trial Court relied on the evidence of Muhammad Boota, witness and analysed that the convict was found coming by the witness from the site where the dead body was buried, at late hours of the night. In view of the trial Court, this fact led to an inference that the accused was coming back after disposing of the dead body of the deceased. On going through the evidence of Muhammad Boota, such an, inference seems to be unwarranted. The witness deposed that while coming from the house of Nek Muhammad at 2 a.m. at night, he was urinating near his house when he saw the accused coming in the 'Gehl'. He enquired from the accused as to where from he was coming, to which he replied that he was entrusted with the search of the deceased by Muhammad Yunus, complainant. In answer to a question in cross-examination, the witness elaborated that the 'Gehl' where he came across the accused, was a common passage and the general public of the village used to walk through it. The aforesaid evidence, by no stretch of imagination, leads to an inference that the convict, at the relevant time, was coming back after disposing of the dead body. The evidence also does not suggest that the accused was coming from the direction of the place where the dead body was ultimately found.

17. It is an accepted rule of appreciation of evidence that conjectures and surmises cannot take the place of realities. The trial Court, in fact, raised the premise of its finding, on conjectures and surmises, to demonstrate its satisfaction over the guilt of the accused. Such an approach was not permissible as it was against the rule of prudence, in dispensation of justice.

18. The finding of the trial Court is unsustainable as the evidence led by the prosecution does not link the accused with the alleged occurrence of murder of Rashda Najam Khan.

19. The petition for enhancement of sentence was not pressed as no argument was advanced in its support.

20. The aforesaid analysis leads to the conclusion in support of innocence of the convict. The appeal is, therefore, accepted. The order of conviction is set aside and the accused is acquitted. He shall be released from the jail forthwith. N.H.Q./117/Sh.C.A. Appeal accepted.