P L D 1996 Karachi 246
Before Hussain Adil Khatri and Dr. Ghous Muhammad, JJ
KIRIR ‑‑‑ Appellant
versus
THE STATE ‑‑‑ Respondent
Criminal Appeal No. 110 of 1993, decided on 30th October, 1995.
(a) Penal Code (XLV of 1860)‑‑‑
S. 302/307/353/365‑A/148/149 ‑‑‑ Appreciation of evidence ‑‑‑ Private eyewitnesses namely the
complainant, Bus driver and one of the passengers had not supported the prosecution version ‑‑‑
Police officials also in a" situation where the dacoits and the police had come closer during the
encounter at a place like jungle in dark night, could not possibly notice the features of the dacoits
due to natural fear and confusion ‑‑‑ Record did not show that the unknown person dying on the
spot due to a fire‑arm injury had died by the firing of the accused or his accomplices ‑‑‑
Mashimarna of identification having been prepared by a police officer and not by the Magistrate
and the Assistant Mukhtiarkar who had supervised the identification test, the same could not be
relied upon ‑‑‑ Accused was acquitted in circumstances.
(b) Penal Code (XLV of 1860)‑‑
‑‑‑‑ S. 302/307/353/365‑A/148/149 ‑‑‑ Qanun‑e‑Shahadat (10 of 1984), Art.22‑‑identification
parade ‑‑‑ Identification of persons in identification test is a very weak type of evidence which is
easily destroyed if there is any suspicion that the conduct of the investigating agency was not
absolutely above board.
(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑ Art. 22 ‑‑‑ Police Rules, 1934, Rr. 26.7, 26.32 & 27.25 ‑‑‑ Identification parade ‑‑‑ Precautions
and necessary steps to be taken by the Police before identification parade detailed.
Precautions are necessary to conceal the identity of the accused while he is being removed from one
place to the other and it is also the duty of the police that all necessary steps should be taken to
ensure that the accused should not be seen by the witnesses before the identification test parade.
The police officer who arrests the accused should get his face covered and take him to the police
station in that state. In the police station the lock‑up in which such an accused is kept should be
covered with a curtain so, that no one is able to see his face. When he is taken to Court or to jail his
face should be kept covered. In jail also no outsider should be allowed to see his face. All these
precautions should not only be taken but should be proved to have been taken. That these
precautions were taken should be recorded in official records like the general diary of the police
station and the jail register and the same should be produced in Court.
In the absence of such evidence, no value can be attached to the identification of an accused person
made by a witness. In other words it is the duty of the prosecution to establish during the trial that
every necessary precaution was taken to ensure fair identification.
(d) Criminal trial‑‑‑
‑‑‑‑ Identification . parade ‑‑‑ Prosecution is duty bound to establish during the trial that every
necessary precaution had been taken to ensure fair identification.
(e) Criminal trial‑‑‑
‑‑‑‑ Burden of proof ‑‑‑ In a trial however intriguing may be the facts and circumstances of the case,
the charge framed against the accused must be proved beyond all reasonable doubts and the
requirement of proof cannot lie in the realm of surmises and conjectures.
Qurban Ali Chohan for Appellant.
Shafi Muhammad Memon, A.A. ‑G. for the State.
Date of hearing: 22nd May, 1995.
JUDGMENT
DR. GHOUS MUHAMMAD, J.‑‑This appeal has arisen out of judgment dated 20‑7‑1993 passed by
the learned Judge (Special Courts) S.T.A., Nawabshah (Mr. Noor Muhammad Shaikh) in Criminal
Case No. 55/1995 whereby he sentenced and convicted the appellant and the fourteen co‑accused to
undergo imprisonment for life, forfeiture of their properties to the extent of Rs. 1,00,000 each or in
default to suffer further R.I. for three years.
The F.I.R. for the offences under sections 302, 307, 353, 365‑A, 148, 149 P.P.C. and 13‑D, Arms
Ordinance was lodged by the driver of Blue Lines Bus Service. He alleged that he drove his bus
loaded with passengers at 4‑30 p.m. on 26‑11‑1990 from Larkana and when he reached Aliabad at
8‑30 p.m. he had to slow down the speed because a truck were crossing at that place. However, as
soon as the truck passed away firing started at the bus from both sides of the road and he was
compelled to stop the bus which was surrounded by 17/18 armed persons. He was directed by four
persons to open the door and thereafter all the culprits entered into the bus. They robbed the
passengers and also directed them alongwith the complainant and the cleaner to move towards the
canal side. They also snatched Rs.8,000 from the complainant. After about 1‑1/2 hours when they
reached near the Bund they saw light of some vehicles. The dacoits asked the abductees to sit on the
ground and some of them went ahead. The dacoits noticed that the law enforcing agencies were
following them. This was followed by exchange of firing from both the sides for an hour. During
this period the passengers started running towards the law enforcing agencies but two of them fell
down and sustained fire arms injuries. The law enforcing agencies narrowed their circle and threw
shells of light and identified the culprits who managed to escape in spite of chase by the Rangers
and Police. All the released abductees were brought at the police station and the F.I.R. was lodged
by the driver. The police also secured one dead body from the place of encounter and one injured
namely Nizamuddin RaJput was referred to hospital at Kazi Ahmed.
After usual investigation the case was challaned. The learned trial Court framed the charge against
the appellant and the 14 absconding accused on 13‑10‑1991.
The appellant pleaded not guilty to the charge and claimed to be tried. The prosecution examined
seven witnesses P.W. I Khan Muhammad is a Mashir. He produced Mashimama of exchange of
‑firing, securing of dead body and injured person from the place of incident. He also produced the
inquest report and Mashirnama of arrest of the appellants. He took part in the identification test of
the suspects involved in this case. He also arrested the appellants and produced the Mashimarna
(Exh.3) P.W.2 Allah Bux is the Assistant Mukhtiarkar and TCM Daulatpur who had supervised the
identification test parade held on 19‑6‑1991. He produced the Mashimama which was prepared by
him. P,W.3 Dr. Sikandar Ali was Medical Officer of Rural Health Centre, Kazi Ahmad. He
conducted post‑mortem examination on the dead body which was brought by P.C. Abdul Rahman of
P.S. Kazi Ahmed, and he produced postmortem report. P.W.4 Ghulani Nabi is the complainant.
P.W.5 Sikander Ali was S.H.0, Kazi Ahmed on 26‑11‑1990. On receipt of information from S.H.O.
Daulatpur that a bus was being robbed by some culprits at Aliabad he rushed towards that place
with police party and then alongwith other members of the law enforcing agencies they followed
the truck and finally when they reached at the Bund the firing was exchanged. The police party
threw two light bombs on the opponents side and saw that there were 17/18 dacoits who were firing
at the police party. P.W.7 Muhammad Yousuf was passenger in the bus who was abducted alongwith
the other passengers. P.W.8, S.H.O. Siraj Ahmed had partly investigated the matter.
The appellant in his statement recorded under section 342, Cr.P.C. denied the prosecution
allegations and pleaded innocence. He did not produce any evidence in defence but he examined
himself on oath and stated that he had no knowledge about the alleged incident and prior to this case
he was not involved in any other case but in cross‑examination he admitted the suggestion that four
cases of abduction were pending against him in the trial Courts.
P. W. 1 A. S. I Khan Muhammad was S. H. 0., Kazi Ahmed Police Station on 26‑11‑1990. He
deposed that at about 8‑30 p.m. on that day S.H.0 Kazi Ahmed Sikandar Ali received telephonic
message that some dacoits had blocked the National Highway near Aliabad and were robbing the
passengers. Therefore, on the direction of the S.H.0 this witness and the police party went to that
place where they found one empty bus of Blue Line Service and some persons were available there.
According to them all the passengers were abducted by the dacoits alongwith driver and the
conductor of the bus. In the mean while two vehicles carrying Rangers also arrived there. The
police party and the Rangers followed the dacoits through link road and when. they reached at the
protective bund they came under heavy firing from the dacoits. According to this witness, the police
party fired three light bombs in the light of which they saw 17/18 culprits who were armed with
rifles. Therefore, the police also fired for about half an hour and then the encounter ended. The
14/15 abductees also informed the police party that during encounter some passengers had sustained
injuries and they took the police party to the place wherefrom the passengers were abducted. There
the police party saw one person lying injured and the other one had died. The injured was taken to
the hospital and the dead body of the deceased shifted to Kazi Ahmed, Hospital. The S.H.0 himself
alongwith his police party and the Rangers followed the dacoits towards the jungle. This witness
prepared Mashimama of vardat at the spot where the injured was lying in presence of Mashirs
Zulfiqar Ali and Ali Akbar Dahery (Exh. 10‑A) and the Mashirnama of the place where the bus was
parked (Exh. 10‑1)). He also identified and picked out the present accused ‑as one of the culprits in
the identification test. In cross-examination he stated as follows:
"At the time of encounter I had seen the accused at a distance of about one Jarib. The night of the
incident was dark but we have seen the faces of the accused in the light of light bombs. It is not a
fact that the accused was previously known to us as he used to visit Kazi Ahmed Police Station."
P.W.2 Allah Bux was Assistant Mukhtiarkar and T.C.M., Daulatpur on 19‑6‑1991. On that day
police of Kazi Ahmed Police Station produced the appellant before him for holding identification
test. This witness kept the appellant sitting‑in him office wherefrom he was not visible to any
person. After fifteen to twenty minutes he was informed by the police that the witnesses had
reached the office for identification. He then arranged dummies from amongst the persons who
were available there. He mixed the appellant after removing his handcuff with the nine dummies
and called A.S.I. Khan Muhammad through his peon for identification of the appellant. He
identified. him properly. Then another assembly of fifteen persons including the accused was
formed and the accused stood at different members from the eastern side. This witness then called
H.C. Muhammad Ilyas, who also picked out the appellant. Likewise the remaining witnesses,
namely, H.C. Ghulam Muhammad and P.C. Bahar also
picked out the appellant from different lines. Thereafter in the presence of Mashirs Muhammad Bux
and Ali Zaib the learned Magistrate prepared the Mashirnama (Exh.6‑A). In cross‑examination he
stated that he had no information as to wherefrom and when the appellant was arrested. He denied
the suggestion that the Police, the P.Ws. and the accused were brought in this office together. He
also denied the suggestion that no identification test was held and the Mashirnama was prepared in
his office P.W 3 Dr. C apt. Sikandar Ali was medical officer at Rural Health Centre, Kazi Ahmed.
He received a dead body of unknown person for postmortem on 27‑11‑1990 at 1‑00 p.m. through
P.C. Abdul Rahim of Police Station Kazi Ahmed. After post‑mortem examination, he issued
certificate (Exh.8A). The learned defence counsel did not cross‑examine him. P.W.5 S.I.P., Sikandar
Ali was S.H.O., Kazi Ahmed Police Station on 26‑11‑1990. He was informed by S.H.O., Daulatpur
that a robbery had taken place near Aliabad. Therefore, he alongwith his subordinate police staff
went towards that place in their official vehicle. As soon as they reached there, they saw one bus
lying abandoned and a layman was sitting there. He informed the police party that after dacoits the
culprits on foot towards western side took the passengers of that bus away. In the mean while to
vehicles of Rangers who were on patrol, duty also reached there and then they all went in search of
the passengers. At about 9‑30 p.m. when the law enforcing agency reached at the Bund they were
fired upon by all the dacoits. The Police Party and the Rangers also returned fires at the culprits.
According to this witness, they also threw two light bombs in the light of which they saw that there
were about 17/18 dacoits who were firing at them. During the encounter, about 15/16 abductees
managed to escape towards the police side but two of them had sustained injuries. One of them died
on the spot while the other one disclosed his name as Nizamuddin RaJput. A.S.I. Khan Muhammad
took the passengers and the injured as well as the dead body to the police station. This witness and
the remaining members of the law enforcing agencies followed the dacoits in the jungle but after
staying there for 2/3 days they returned and could not find any trace of the culprits. On 5‑12‑1990
he was transferred from P.S. Kazi Ahmed, therefore, for the purpose of remaining investigation he
handed over the case papers to S.H.O., Muhammad Aslam Barani P.W 6 Bahar Ali was police
constable posted at Kazi Ahmed Police Station. He also supported the statement of P.W.5, S.I.P.
Sikandar Ali but he deposed that during the encounter the police party threw light bombs on the
light of which he had seen the faces of all the accused persons who were 17/18. He also deposed
that the appellant was one of the culprits involved in the exchange of firing with police. In cross-
examination he stated as follows:‑‑
"At the time of encounter the dacoits were at a distance of about 25‑30 paces from us. I had
consumed 32 bullets of semi‑automatic rifle. The dacoits were spread over an area of 35 places
from every one of them."
P.W.7 Muhammad Yousuf was one of the passengers who were abducted by the dacoits. He deposed
that there were twenty‑five passengers in the bus and the dacoits robbed him of Rs.2,200 and one
watch. He also stated that firing was exchanged between the police and Rangers as well as dacoits.
According to him he saw two dead bodies of passengers and ‑after searching his cousin Ali Akbar
they took shelter in the nearby village. This witness was also not cross‑examined by the learned
defence counsel.
The mainstay of the prosecution in this case are the following pieces of evidence:
(a) Ocular testimony.
(b) Medical and circumstantial evidence.
There is no doubt that the incident of robbery and abduction as alleged took place on 26‑11‑1990 at
8‑30 p.m. and thereafter the passengers alongwith the driver and cleaner of the bus were abducted
and kept in custody by the culprits till the encounter with the law enforcing agencies took place on
the same night. There is also no denying the fact that the culprits were strangers to the prosecution
witnesses and the dacoity/abbuction and exchange of firing took place in dark night.
So far the ocular testimony is concerned, the private witnesses, namely, complainant Ghulam Nabi,
the driver. and Muhammad Yousuf one of the passengers have not supported the prosecution
version. P.W.4 driver, Ghulani Nabi even went to the extent of deposing in his 'examination‑in‑chief
that the faces of the dacoits were muffled as such he could not identify them although from the
beginning to the end he had the opportunity to recognize them. Therefore, evidence of these
witnesses is of no help to the prosecution. Now, there remains three witnesses, namely ASI,
Muhammad (P.W.1) and S.I.P. Sikandar Ali (P.W.5) as well as P.C Bahar Ali (Exh.6) P.W.1 deposed
in his cross‑examination that he saw the accused at a distance of about one Jarib in the light of light
bombs . P.W.6 stated that when the police party threw light bombs he had seen faces of all the
accused persons who were firing at the police party but he has not given the approximate number of
the culprits.
The crucial question is whether in dark night when the police party was engaged in encounter was it
possible for the witnesses to have identified the culprits. It would be significant to note that P.W 4
Ghulam Nabi as well as P.W.7 Yousuf have nowhere deposed that the police threw light bombs on
the dacoits. Had this been a fact they could have conveniently said so in their statements.
Nevertheless, assuming that the police threw two or three light bombs on the dacoits it is
unbelievable that the P.Ws. could have identified the unknown culprits from a distance of about 150
feets in a case of dacoity followed by encounter where the source of identification was only 2/3
light bombs. In such a case where the only evidence is of identification the question of light is of
paramount importance. This should always be approached in a careful and judicious manner and not
in an unintelligent and wooden manner as has been done by the learned trial Court. When the
dacoits and the police come closer during the encounter at a Place like jungle in dark night with the
natural fear and confusion which the presence of dacoits and firing creates it is not possible that the
police would be in a position to be careful to notice the features of the dacoits.
Even if the two witnesses are believed that they have spoken the truth that they saw the faces of
17/18 persons is not possible to accept their version having recognized the appellant as one of the
culprits particularly when he was a stranger for them and had no distinctive mark as to his
appearance to fit his features indelibly upon the minds of the witnesses, therefore, reliance could be
placed on the evidence of such witnesses.
So far the medical evidence is concerned this only supports the prosecution that during encounter
one unknown person died on the spot due to fire‑arm injury. But nowhere it has been established
that he died due to the firing C of the appellant or his accomplices.
Now there remains only the evidence of identification test which took place on 19‑6‑1991 under the
supervision of T.C.M. and Assistant Mukhtiarkar Allah Bux. The mechanism Of identification
proceedings are well‑known and does not require repetition. Reference in this regard may be made
to rules 26.7, 26.32 and also rule 27.25 (Vol.III) of the Police Rules, 1934. However in order to
ensure that the proceedings are properly conducted and are entirely above suspicion it is essential
that the rules and the principle governing the holding of identification test Parade should be strictly
followed. So far as the identification of persons is concerned, it is a very weak type of evidence the
value of which is easily destroyed if there is any suspicion that the conduct of the investigation
agency was not absolutely above board. Therefore, precautions are necessary to conceal the identity
of the accused while he is being removed from one place to the other and it is also the duty of the
police that all necessary steps should be taken to ensure that the accused should not be seen by the
witnesses before the identification test parade. The Police Officer who arrests the accused should
get‑his face covered and take him to the police station in that state. In the police station the lock‑up
in which such an accused is kept should be covered with a curtain so that no fine is able to ;De his
face. When he is taken to E Court or to jail his face should be kept covered. 'In jail also no outsider
should be allowed to see his face. All these prosecutions should not only be taken but should be
proved to have been taken. That these precautions were taken should be recorded in official records
like the general diary of the police station and the Jail Register and the same should be produced in
Court. In the absence of such evidence, no value can be attached to the identification of one accused
person made by a witness. In other words it is the duty of the prosecution to establish during the
trial that every necessary precaution was taken to ensure fair identification. In the instant case the
Accused was arrested on 19‑6‑1991 And he was put to identification test on the same day. However,
as was rightly pointed out by the learned counsel for the appellant the Mashir of arrest and Mashir
of identification are the same persons and strange enough the scribe of Mashimamas of arrest
(Exh.3‑E) and identification (Exh.6A) is also the same which indicates that the Mashimama of
identification was prepared by P.W.1 (A.S.I. Khan Muhammad) and not by the Assistant
Mukhtiarkar and T.C.M., Daulatpur (P.W.2). This proves that the identification test parade was
treated as a routine formality by the prosecution and such practice deserves to be deprecated. No
reliance can be placed on such a Mashimama of identification. In a criminal trial, however,
intriguing may be the facts and circumstances of the case the charge framed against the accused
must. be proved beyond all reasonable doubts and the requirement of proof can not lie in the realm
of surmises and conjunctures. The learned trial Court lost sight of this well‑settled principle of
criminal jurisprudence while evaluating the evidence led by the prosecution.
The upshot of above discussion is that the prosecution has miserably failed to prove the charge
against the appellant. By a short order on 22‑5‑1995 we had allowed this appeal and reversed the
judgment of the trial Court and acquitted the appellant. The above are the reasons for the same.
N.H.Q./K‑398/K Appeal accepted.
