P L D 1958 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑I concur in the opinion pro posed to be delivered for the Court by Shahabuddin, J. but wish to add a few words of my own. It seems to me that the learned Judge of the High Court in professing to follow the judgment of this Court in Ibrahim Bhak's case (P L 'D 1955 F C 113) has ignored two cardinal principles laid down therein which should have governed the decision in the present case. If he had taken the trouble of carefully perusing that judgment and endeavoured to comprehend the true import of it, he would have found that what it laid down was‑ (1) that the evidence of identification tests arranged by the police, though admissible, is not of much value where the investigating officer gives no explanation of the omission to call a Magistrate to supervise the test, and (2) that in cases of this type the real evidence that implicates an accused person is the statement of the identifying witnesses in Court that they had seen a particular person committing an offence. If the learned Judge had kept these two rules in view, he could not have remarked, as he repeatedly does, that the most important evidence against the accused was that of the identification test. In the next place, he could not have determined the question of guilt of the accused persons without referring to the evidence in Court of the eye‑witnesses which was considered at length by the Sessions Judge from whose order he was hearing the appeal. Had he approached the case in that manner, he could not have found it possible to acquit any of the accused persons because the evidence against each of them was overwhelm ing, given by completely disinterested persons who had assigned to each of them particular parts in the transaction of robbery and the attempt to escape. As to the admissibility of the identification tests, the learned Judge is under a misapprehension if he thinks, as he seems to think, that there is any decision of any High Court or of the Supreme Court of India laying down that section 162 of the Code of Criminal Procedure is a specific provision, contrary to the identity provision of section 9 of the Evidence Act. Nor is he right in suggesting, as he seems to me to suggest, that some pre- partition decisions of the High Courts were not present to my mind when I wrote the opinion of the Court in that case, which he considers to be erroneous. All these cases and many others, more fully argued, were in my mind when I formed that opinion. Let me explain what the principle underlying the opinion in Ibrahim Bhak's case is. In England and other countries where the English law of evidence is in force, either as common law or by statute, one firmly entrenched principle is that, subject to certain exceptions which are not relevant here, hearsay is not evidence. Therefore under that law if a witness is questioned in examination‑in‑chief as to what he stated to the Police or to anybody else on a former occasion, the ques tion will be disallowed as the reply to the question will be hearsay. Accordingly when on being questioned a witness states that he had identified the prisoner as the offender at Police `show‑up', objection is sometimes taken to the admissi bility of the evidence on the ground that the statement is mere hearsay. The prevalent opinion, however, is that the statement is primary evidence of identity and not hearsay. Thus in Queen v. Burke and Kelly (Vol. 2, 1846/48) Cox's Criminal Cases 295) where the Crown proposed to call witnesses to prove that the prisoner Kelly was the man whom Sullivan (the person robbed) had identified on an earlier occasion, the objection by the Counsel for the prisoner to the admissibility of the evidence was overruled and the evidence was allowed to go on record, Lefroy B, stating that he remembered a case in England and several others at Nenagh in which such evidence was admitted, in the latter cases after consultation with a brother Judge. And in the House of Lords' case King v. Christie (1914 A C 545) where a little boy, on whom indecent assault had been committed, on being asked by a constable shortly after the occurrence who the man was who had assaulted him, had pointed out the prisoner by touching him upon the sleeve of his coat, three of the noble Lords, namely, Viscount Haldane L. C., Lord Atkinson and Lord Reading, the fourth noble Lord not adverting to this point, were agreed that the evidence that the victim of the crime had identified the prisoner on a former occasion was admissible evidence of identity, even counsel for the prisoner expressly admitting that no valid objec tion could be urged against such evidence. In the course of the opinion, Lord Atkinson said; "As to the first point it cannot, I think, be open to doubt that if the boy had said nothing more, as he touched the sleeve of the coat of the accused, than "That is the man", the statement was so closely connected with the act which it accompanied, expressing, indeed, as it did, in words little if anything more than would have been implied by the gesture simpliciter, that it should have been admitted as part of the very act of identifica tion itself." The detailed statement by the boy, however, in answer to the question by the constable "What did he do to you" was excluded as hearsay. The same is the practice in Canada and Ireland and most of the jurisdictions in America where the act of identification of the accused at a police `line‑up' is held to be admissible as evidence of identity and not excluded by the rule against hearsay. In some of the jurisdictions, however, a contrary view has sometimes been taken and this has been severely criticised by Professor Wigmore, the greatest authority on the American Law of Evidence, with epithets such as "banishment of com monsense", "a doctrine which flies in the face of commonsense" and an argument which involves a complete paralysis of "judicial nerves of natural reasoning", and since that criticism some of those States as well as the Federal Courts have been pronouncing in favour of the admissibility of such evidence. Now, section 162 of the Code of Criminal Procedure is merely an application of the general rule against hearsay, and if such evidence of identification is not excluded by the hearsay rule, it cannot be supposed to have been excluded by that section, the act of identification being, as Lord Moulton pointed out in King v. Christie (1914 A C 545) "an act of the mind" and not a statement of the kind contemplated by that section and they ' implied statement in the act of identification and the accompanying words "that is the man" being merely explanatory of the act. Thus, if the person robbed while giving evidence, after deposing in Court that it was the prisoner who robbed him, goes on to state that he recognized the prisoner at a police "line‑up", it would be impossible to contend that he is deposing to any statement, and if such an implied statement by him is not hit by section 162, I do not see why other witnesses who saw the act of identification should not be permitted to depose to the manner in which he expressed his identification of the prisoner. What section 162 excludes is a statement made to a police officer and for the purposes of that section an act is not a statement, even where it contains an implied statement and acquires its significance only by such statement. If the learned Judge felt convinced that such evidence of identification becomes admissible only if an identification parade is held in the presence of a Magistrate, he should then have realized that the express or the implied statement made by the identifying witnesses at such a parade could be admissible only under section 157 of the Evidence Act and that in that case it would not be substantive evidence but only corroborative of the evidence given by the witnesses at the trial. This should have led him to look for such substantive evidence of which there was abundance on the record and to consider it on its merits. Further, from the view formed by the learned Judge that this Court's opinion on the question of law in Ibrahim Bhak's case was a mere obiter dictum it should have followed as a logical result that the decision in that case was based on the evidence in Court of the identifying witnesses and that it was his duty to follow a similar course and to look for such evidence. This the learned Judge completely failed to do, with the result that he acquitted one man whose acquittal in the state of evidence on record was unthinkable, was prepared to acquit another and would have been compelled to acquit the third if he had been at liberty to act on his own view of the law. And this despite the fact that these accused persons were seen by six completely disinterested witnesses to rob a person of currency notes to the tune of two lakhs of rupees by a daring hold up in broad‑daylight on a highway in the heart of a populous town, and of them one was captured almost in hot chase, the second a few hours later and third the same night from places where none of them had any business to be and while each of them was in possession of arms and ammunition for which he had no lawful excuse‑a bewildering result for the citizen of Pakistan and a matter of grave concern for those who are charged with of interested in the administration of justice in cases of serious ` crime. To be able to acquit in ‑the state of evidence in this case, one has either to misread the law or to misapply it because the law itself cannot possibly countenance such a grave miscarriage of justice. And finally let me address a warning to those police officers who are charged with the investigation of crime where the question of identity of a criminal is a vital factor in the case. Let them not run away with the idea that this Court's decision in Ibrahim Bhak's case provides them an excuse to do away with the presence of a Magistrate at an identification test. I pointed out in that case that ordinarily not much weight can be attached to such identification where the investigating office gives no explanation of why a Magistrate was not called to supervise the parade. Where a Magistrate is available and is not called, the result of the identification parade, unless the circumstances be quite exceptional, would be valueless and no Court will act on such evidence where everything is arranged by the investigating officer himself and no nearby Magistrate is called. The only effect that the needless introduction of such evidence into an otherwise strong case can produce is to confuse and divert justice from its true course. Of that, the present case furnishes a striking and a sad example. M. SHAHABUDDIN, J.‑Appellant, Muhammad Bashir Alam, petitioner Muhammad Abbas Hyder, and one Inayat Ullah, were convicted and sentenced to various terms of imprisonment by the Sessions Judge, Larkana, under sections 392/397 and 307/34, P. P. C. and section 19 (E) of the Arms Act. The learned Judge of the High Court of West Pakistan, Karachi Bench, who heard their appeal, acquitted Inayat Ullah, confirmed the convictions and sentences imposed on Muhammad Bashir Alam and Muhammad Abbas Hyder and dismissed their appeal but granted a certificate to Muhammad Bashir Alam under Article 159 (c) of the Constitution that his case was a fit one for appeal to this Court. The Criminal Appeal has been filed by Muhammad Bashir Alain on the strength of that certificate. An application for a similar certificate made by the other convicted accused Abbas Hyder was dismissed and he has preferred the petition for special leave to appeal. The case for the prosecution was to the following effect. On the 23rd of December 1952, while P. W. 4 Dhanibux, and P. W.

5. Karim Baksh, the Cashier and Chowkidar of the Sind Provincial Co‑operative Bank at Larkana, were taking in the tonga of P. W. 6 Urs, a box containing 2 lakhs of rupees in currency notes which had been drawn that day from the National Bank of Pakistan, Larkana, appellant Muhammad Bashir Alam armed with a pistol stopped the tonga by holding the reins and petitioner Muhammad Abbas Hyder and the acquitted accused Inayat Ullah, who were armed with revolvers, removed the box containing the money, and all three of them then started running away with it. An alarm was raised by the Cashier and the Chowkidar, and several people, including the Chowkidar (P. W. 5) Allahbus (P. W. 7), a servant of one Abdul Nabi who lives close‑by, and Jahan Khan, a Head Constable (P. W. 12), who was passing that way at the time, pursued the accused, who, while running, ‑fired at their pursuers. The accused then ran into a lane while the Head Constable went along the road and after sending Muhammad Basharat (P. W. 14), a traffic constable, to get police help and taking with him constable Illahi Bakhsh (P. W. 13), whom he met at a shop, rejoined the pursuit. The Chowkidar, continued chasing the accused into the lane and while in the lane, the acquitted accused Inayat Ullah, handed over the cash box to Abbas Hyder and then turned towards his pursuers and fired at them 3 or 4 times. The Head Constable on rejoining the pursuit saw Bashir Alam and Abbas Hyder running, the former carrying the cash box and when the witness in an attempt to reach them from the front went out of the lane and re‑entered it he found the cash box lying on the ground, and when the contents were counted later on, only Rs. 1,000 were missing from it. Ilahi Bux constable (P. W. 13), shouted at Bashir Alam and Abbas Hyder while they were running and they then fired at him. At that stage, Inayat Ullah with an injury on his leg and stains of blood on his shalwar was seen in the lane carrying a revolver, whereupon P. W. 13 chased him and Inayat Ullah fired at him. The first shot grazed the witness's right leg, yet his pursuit continued, when Inayat Ullah fired another shot which hit the witness in the left leg. Muhammad Basharat (P. W. 14) who had in the meantime come on the scene, learning that one of the robbers had taken shelter in a house surrounded it along with constables Dodo Khan (P. W. 15) and Sahib Khan (P. W. 17). These witnesses entered the house when accused Abbas Hyder fired two shots, but one of these constables fired a shot and Abbas Hyder was arrested. His revolver, containing four bullets and 11 live cartridges, which were found in the house, were seized. After the arrest of Abbas Hyder, the police came to know about Inayat Ullah and receiving information that he was hiding himself in the house of one Obedullah Lakho, Sultan Zaman (P. W. 22), Sub‑Inspector of Police, along with police constables surrounded it and on the witness's knocking at the exit door accused Inayat Ullah opened it. He was then wearing a loin cloth and had an injury on his right leg which had been bandaged. He voluntarily produced a revolver and three live cartridges. This arrest was effected at 8‑30 p. m. and this accused was then taken to the police station. Accused Bashir Alam was arrested by constables, Khan Muhammad (P. W. 19) and Sodaghar (P. W. 20) at about midnight. While on duty these witnesses saw this accused emerge from some date trees, and when they challenged him, he tried to run away but the witnesses secured him. When they asked him about his name, he mentioned several names at first and ultimately said that he was Bashir Alain. He was produced before the D. S. P., who interrogated him about his weapon which he volunteered to produce from a house that had been abandoned. He then took the police to the locality wherein he had secreted the pistol, but could not locate the house that night. The next day at about 9 a.m. he took the police to the house from where an automatic pistol and 17 live cartridges were recovered. The same day, in the afternoon, an identification parade was held by the police at which the various witnesses picked out the three accused. Subsequently, on 2nd January 1953, accused Abbas Hyder made a confession before the Sub‑Divisional Magistrate, Khamber, which the learned Judge excluded on the ground that it was not voluntary. The three accused knew each other for some time prior to the occurrence. In December 1952, Bashir Alam was an employee in a firm at Karachi, while Abbas Hyder was an employee in the R. P. A. F. Karachi. Both of them applied for leave on the ground of illness at about the same time and they sent further applications for extension of leave which was not granted and ultimately their services were terminated. Inayat Ullah was a student in Karachi. The reason given by all the accused for their visit to Larkana at about the time of occurrence was that they wanted to see Mohanjo Daro and places of historical interest. They denied having participated in the robbery or fired at the people who chased the robbers. Abbas Hyder admitted having made the confession before the Magistrate but explained that he was coerced by the police into making it and that its contents were not true. He also admitted that he was arrested in a house, but he denied that he fired at the constables or that a revolver or cartridges were recovered from him. Bashir Alam' s statement was that he was arrested at midnight when he was returning with his friend Safdar Ali Isani, a student, from the second show at the Empire Talkies Larkana. He said he did not produce a pistol and cartridges. Inayat Ullah' s statement was that he was secured from the house of Ubedullah Lakho where he used to reside when he came to Larkana. He admitted that the revolver and cartridges were secured from that house when he was arrested, but his story was that he had taken out the revolver from a cupboard out of curiosity and it "misfired" and caused the injury on his leg. He became unconscious and hearing the report of the firearm the police came in and arrested him. It is seen from the above analysis that this is not one of those cases where the credibility of the evidence that the accused before the Court are the culprits depends mainly on the witnesses having successfully picked them out at an identification parade. In such cases the opportunity of noticing the features of the culprits at the time of the occurrence is slight and, therefore, the evidence of identity is accepted only when it is supported by the fact that the witnesses picked out the accused at an identification test held with precautions taken against the accused being seen by the witnesses before the test. But in the present case, the evidence of the eyewitnesses could safely be believed, apart from the evidence of the identification parade, as they had ample opportunities of noticing the features of the robbers and it was not disputed that they were disinterested. In the time taken by the robbers to stop the tonga and remove the cash‑box the cashier, the Chowkidar and the tongawala cannot but have observed fully the faces of the three men, who were threatening their lives with firearms. It was broad‑daylight, the robbers had not muted their faces, and

it is significant that in the first information report made by him with the least possible delay the cashier stated : "We have not seen the accused persons before, but now I, Karim Bux Chowkidar and Urs Baghiwala have seen them very well and we can identify them, if we would see them again." He then described the robbers in the report, and the Sessions Judge has observed in his judgment that those descriptions "nearly tally with the features of the present three accused persons". The Chowkidar Karim Bux (P. W. 5) had a further opportunity of seeing the features of the robbers as he chased them throughout the pursuit and, according to him, they were firing at their pursuers while running away. Abdullah (P. W. 7) and Jahan Khan Head Constable (P. W. 12) both deposed that while pursuing the robbers, who were firing at them, they had clearly seen their faces "because they were open". Ilahi Bakhsh, Constable (P. W. 13) too clearly saw the faces of Bashir Alam and Abbas Hyder, when upon being cornered, they threw down the cash‑box and fled. Their faces were open. As for Inayat Ullah, this witness had an excellent opportunity of observing him, for in the course of the chase, Inayat Ullah twice turned to fire revolver shots at this witness, each of which found its mark. The clear statement of Illahi Bakhsh is, in my opinion, sufficient by itself to found a case of felonious wounding against Inayat Ullah. But there is other evidence besides, which has already been mentioned, to implicate Inayat Ullah in the earlier phases of this dastardly crime as well. Besides the substantive evidence of the eye‑witnesses regarding the identity of the robbers, there was also evidence of the circumstances in which these accused were arrested which were consistent with their being the culprits and not with their having come to Larkana for sight‑seeing. The versions of the accused about their arrest were not con vincing and the trial Court had rejected them for cogent reasons. It becomes clear that there was prior association between these three persons, whose presence together in the town of Larkana at a great distance from their proper places of residence, at the relevant time‑points clearly to their having come together for no other purpose than the consummation of this crime. The evidence of least value in this case was that of the identification test. In the first place, it was not held by a Magistrate and no reason was given for not securing the services of a Magistrate, though Larkana is a District Headquarters. Secondly, there were circumstances which reduced the value of this test to almost nothing. Abbas Hyder was arrested practically in continuation of the pursuit and he must have been seen thereafter, long before the test by several persons including the witnesses. The other two accused, no doubt, were arrested at night but, owing to the sensation the incident must have created, the possibility of those accused having been seen by the witnesses before the parade cannot reasonably be excluded. Indeed, it was stated by Karim Bakhsh Chowkidar before the Committing Magistrate that he left the police station at 1 a.m. that night and by that time Bashir Alain and Inayat Ullah had been arrested. At the trial he stated that he was again called to the police station next morning at breakfast‑time and that Dhani Bakhsh cashier and Urs tongawala were also similarly called. Identification at a test held in the above conditions, even if it was supervised by a Magistrate, could be of little or no value. I may note here, since the question has been touched upon in the judgment under appeal, that the burden of the decision of the Federal Court in the case of Ibrahim Bhak (PLD1955FC113) is that proof of identification before the police, while admissible, is of but little value as evidence if there is no explanation for failure to call an available Magistrate. Consequently, it is apparent, in view of what has already been said above, that nothing turned, or could possibly turn, upon the acceptance or otherwise of the evidence relating to the identification test, in the present case. It is, therefore, surprising that the learned Judge of the High Court, in deciding the appeal against the convictions of the three accused should have proceeded on the basis that the main evidence in the case was that of the identification test and did not take into consideration the direct and most convincing evidence of the eye‑witnesses, which was wholly unrebutted, as the accused persons produced no evidence as to the occurrence. This has led to the remark able result that Inayat Ullah was acquitted without a word being said about the direct evidence which clearly implicated him beyond all doubt. I do not propose to say anything concerning the learned Judge's treatment of the other ancillary evidence led in relation to Inayat Ullah, as his case is not before us. But I cannot fail to express my keen disappointment that the learned Judge completely overlooked the best evidence against Inayat Ullah in formulating the grounds of his acquittal. In the case of the appellant Bashir Alam also, all the direct evidence was overlooked, and the learned Judge only found it possible to maintain the conviction on the bases (a) that the evidence of identification was admissible, and (b) that a description of his feature was supplied. It was noted that he was arrested' 12 hours after the occurrence, but the incriminating circumstances that he emerged from concealment among some date trees, that he attempted to run away when challenged by the constables and that he gave a number of false names before divulging his correct name received no consideration in the judgment. The recovery by this accused person of a revolver from a place of concealment in a deserted house on the morning following his arrest was doubted on the ground that when he first searched for this place in the early hours of the morning, he failed to locate it. The learned Judge failed to note that Bashir Alam was not a resident of Larkana, and that the place of concealment was in a deserted house, the approach to which lay through a series of narrow lanes. It was not surprising that in the hours of darkness. Bashir Alam failed to find this spot. There is nothing to indicate that it was pointed out the next morning by any person other than Bashir Alam. Even as regards Bashir Alam, the learned Judge declared that but for the admissibility of the identi fication evidence, he would have been prepared to acquit him. In the face of so much direct evidence, it would indeed have been regretable if there had been a miscarriage of justice in his case as well. Mr. Hamiduddin was heard at length in support of Bashir Alam' s appeal, but he failed to raise the slightest ground for doubt regarding the truth of the direct evidence. I would therefore dismiss the appeal. The petition for special leave to appeal presented on behalf of the other convict Abbas Hyder is equally without force. In his case the learned Judge admitted that "pursuit had given ample opportunity" to the witnesses to observe his features, and he placed value also upon the fact that "no less than six persons picked him out at the identification parade which was held without any delay". The description of one of the culprits tallied with his appearance. (These features are present also in relation to Inayat Ullah, it may be noted). The direct evidence is ignored by the learned Judge in relation to this accused person as well, and a full and circumstantial confession which he made some 9 days after the occurrence, and which after full examination of all the relevant circumstances had been held by the trial Court to be both voluntary and true, was ruled out as inadmissible. The principal ground of exclusion rests upon a statement alleged, in an application, to have been made in the Com mitting Court by the senior Police Officer in charge of the investigation. No proof 'of this statement was ever led, and if it had been, I feel no doubt that the police‑officer would have clarified what he meant. For the words he is alleged to have used are susceptible of other meanings besides that accepted by the learned Judge. But even without the confession there is ample evidence to sustain the conviction of Abbas Hyder. Nothing in the argument addressed on his behalf by Mr. Hamiduddin has served to indicate the slightest ground upon which his case could be thought to fall within the limited jurisdiction of this Court in criminal cases. I would therefore dismiss Abbas Hyder' s petition as well. It remains for me to add my respectful and complete concurrence with the observations contained in the separate judgment recorded by My Lord the Chief Justice. CORNELIUS, J.‑I agree with the judgment of My Lord the Chief Justice as well as with that of my brother Shahabuddin. AMIRUDDIN AHMAD, J.-I agree. A. H. Appeal & Petition for leave to appeal dismissed.