IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Jail Appeal No.  27 of 2007.

Present:

                                    Mr. Justice Imam Bux Baloch.

1.         Hazaro son of Abdul Sethar.

2.         Noor Mohammad son of Mohammad Bux Shaikh.

                                                                                                …………...Appellants.

Versus

The State.                                                                            ...…..….Respondent.

Mr. Asif Ali Abdul Razak Soomro, Advocate for appellants.

                        Mr. Ali Raza Pathan, State counsel.

Date of hearing:                            09.03.2010.

Date of Judgment:                       09.03.2010.

J U D G M E N T

Imam Bux Baloch, J-.       This criminal jail appeal is directed against the judgment dated 28.02.2007, passed by learned 1^st Additional Sessions Judge, Shikarpur.  The appellants were tried for offences under section 460, 302 P.P.C. and was sentenced to suffer imprisonment for life under section 302 P.P.C. and fine of Rs.200,000/- each and in default of which, to undergo each R.I for two years more. The appellants have also been convicted under section 460 P.P.C., have been sentenced to undergo R.I for ten years each and fine of Rs.100,000/- each and in default of which to undergo each further R.I for one year. Both the sentences were ordered to run concurrently. The appellants were also awarded benefit of section 382-B Cr.P.C.

                        The appellants have assailed the impugned judgment through this appeal.

                        The prosecution story, according to the F.I.R is that complainant Nisar Ahmed, his father and maternal uncle used to reside in one and same house. The same have door for entrance towards eastern side. They had buffalo. On 16.6.1987, at fateful night the complainant tied his buffalo in courtyard and locked door and went to sleep. At 2.00 a.m. he, his father and maternal uncles Ali Nawaz and Ghulam Akbar woke up on movement of buffalo. On light of bulb they saw three unknown persons with open faces, out of which two were armed with guns, while one was armed with lathi standing near the buffalo. Complainant, his father and maternal uncles raised cries, to which one armed person fired at them, which hit complainant’s father on his right side of the head and he fell down. Then accused persons ran away towards northern side while firing in air. On their cries peoples from village also came there. The father of the complainant went unconscious. He was bleeding. They found that their house wall from northern side was broken. There were foot prints of culprits; two were with shoes and one with sandal. Maternal uncle of complainant took his father to Shikarpur. In the morning the complainant party with two foot trackers, namely, Moula Bux and Dil Murad followed the foot prints of the thieves, but missed at Shikarpur-Rustam road.  Then complainant went to Shikarpur to lookafter his father. He left Ali Nawaz and Ghulam Akbar and went to his nekmard Qazi Iqbal and narrated facts to him, who advised him to lodge the report at police station.

                        After usual investigation accused Hazaro Jakhro, Nooro alias Noor Mohammad and Hazaro Sethar were sent up for trial. It is pertinent to mention here that during proceedings of the case, one accused Hazaro Jakhro had expired and proceedings against him were abetted. Charge against accused Hazaro and Noor Mohammad was framed at Ex.5, wherein they pleaded not guilty and claimed trial.

                        At trial prosecution examined PW-1 complainant Nisar Ahmed at Ex.8. PW-2 Ali Nawaz at Ex.9. PW-3 Dr. Nisar Ahmed Dayo at Ex.11. PW-4 Amir Bux Bhayo Mukhtiarkar and FCM at Ex.13. PW-5 Mashir Abdul Razak at Ex.16. PW-6 ASI Allahdino at Ex.19. PW-7 ASI Mohammad Ali Bhayo at Ex.22.  The statements of appellants were recorded under section 342 Cr.P.C. at Ex24 and 25.

                        Learned trial Court after evaluating the evidence convicted the appellants as stated above.

                        I have heard Mr. Asif Ali Abdul Razak Soomro, learned counsel for appellants, Mr. Ali Raza Pathan learned State counsel and have gone through the paper book.

                        Learned counsel for the appellants contended that the appellants were challaned on the basis of identification parade held before Mukhtiarkar and FCM, as the names of the appellants did not appear in the F.I.R. He further contended that the appellants were arrested on 02.10.1987, and the identification parade was held on 14.10.1987, with a delay of 12-days. He further contended that in the F.I.R the descriptions of culprits were not mentioned and identification parade of the appellants in such circumstances is doubtful. He further contended that nothing incriminating is said to have been recovered from appellants. Learned counsel further contended that picking up of the accused in the identification parade without describing role played by them in the crime was illegal, rendering proceedings un-reliable having no evidentiary value. He lastly contended that the prosecution has failed to establish its case against the appellants; he therefore, prayed that the appeal may be allowed and appellants may be acquitted of the charge. Learned counsel relied upon case of Lal Pasand Vs The State (PLD 1981 S.C 142), Khadim Hussain Vs The State (1985 SCMR 721), Mushtaq Ali Kalhoro Vs The State (PLJ 1996 Crl. Cases Karachi 1364), Abdul Sattar and another Vs The State (1981 SCMR 678), and Mehmood Ahmed and three others Vs The State (1995 SCMR 127).

                        On the other hand learned counsel appearing for the State, did not controvert the submissions advanced by the learned counsel for the appellant and conceded that the prosecution failed to establish its case against the appellants beyond reasonable doubt, hence he did not support impugned judgment.

                        I have considered the submissions advanced at the bar, and perused the evidence produced by the prosecution in the trial Court.

                        Prosecution case rests upon identification test parade of appellants. The complainant Nisar Ahmed stated in his evidence that time of incident was 2.00 a.m. and he woke up on the gun shot reports and raised cries as “thief-thief” and he also noticed that his father had fallen down on the ground and received gun shot injuries. He further stated that prosecution witnesses Ali Nawaz and Ghulam Akbar also woke up on firearm reports. He further stated that he saw three accused persons in light of bulb standing near buffalo under the tree. He stated that he has not given descriptions of the accused/ appellants in the F.I.R. At the time of identification parade, this witness though picked up appellant Hazaro Sethar but he has not mentioned the role played by the appellant at the time of commission of office. 

                        PW Ali Nawaz when examined under section 161 Cr.P.C. by the police has not given features and descriptions of the culprits, but at the time of identification parade this witness identified appellant Hazaro, but without ascribing any role to him in the commission of the offence. PW Amir Bux Assistant Mukhtiarkar and T.C.M, also had not stated in his evidence that complainant and P.W Ali Nawaz, described the role of appellant Hazaro in identification test parade.

                        In the case of Lal Pasand (Supra), it was held by the Hon’ble Supreme Court that, as we do not have the jury system, the first recommendation would translated into our procedure, mean that the Judges hearing a case should be aware of the dangers inherent in the identification of strangers by witnesses, who have seen them very briefly and this coincides without own views on the matter. The second recommendation, however, is very wide, and it is not necessary for us to decide so wide a proposition, as the question before us is whether it would be safe to base a conviction on the evidence of one identifying witness only, because he was an honest witness. Now, although the witness was an honest witness, the dangers of errors in identification are so great that in our humble opinion, safe in exceptional circumstances, it would not be safe to base a conviction on the evidence of a solitary eyewitness if the witness has only had a fleeting glimpse of the assailant. And, as in the instant case, there are no special circumstances; we hold that the learned Chief Justice erred in convicting the respondent solely on Sadullah Khan’s evidence.

                        In the case of Khadim Hussain (Supra), it was held that mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part n the crime which is being investigated. It merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in a Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight.

It was further held that not clear from entire evidence relating to identification parade whether persons named were identified by their role in crime or as individuals, as friends or as foes, it was identification of their role then it should have been specific so as to complete the picture of crime and re-inforce case against them for commission of crime.

                        In the case of Musthaq Ali Kalhoro and two others (Supra), it was held that besides, this witness had only a momentary glimpse of the assailants, that is why he has given their sketchy descriptions i.e. they were of normal heights and aged about 24 to 30 years. He did not give the nature of the clothes they were wearing and the features of their face or other distinguishing features which could show that he must have actually identified the culprits on account of those features.

                        In the case of Mehmood Ahmed (Supra), it was held that it is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witnesses. In such circumstances the settled law is that identification could not be relied upon and was of no evidentiary value.

                        The principle laid down in the above cited cases is very much applicable to the case in hand as the fact that eh entire evidence relating to identification parade which indicates only picking up, but not describing any role in the crime; proceedings of such identification test parade where the appellants were picked up without describing their roles played in the commission of crime suffers from illegality and infirmity rendering it completely unreliable having no evidentiary value in the eyes of law.

                        From the above discussion, I am of the considered opinion that the prosecution has failed to bring home the guilt of appellants in the commission of crime beyond shadow of reasonable doubt and looking to the above infirmity of the prosecution evidence brought on record, the same cannot base any conviction therefore, while extending benefit of doubt to the present appellants, this appeal was allowed by short order dated 09.03.2010, and the appellants were acquitted of the charges; and were ordered to be released forthwith if not required in any other case, and these are the reasons for the same.

                                                                                                            Judge