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Criminal Appeal No. 48 and Criminal Jail Appeals No. 123 and 124 of 1969, decided on 22nd April 1969.

, S. 154‑First Information Report‑Delay‑Occurrence taking place at 10 p.m. but F. I. R. lodged at 10‑30 a.m. the next morning‑Great delay in lodging F. I. R., not explained by prosecution‑Held, casts doubt on prosecution evidence.

S. 9‑Identification test- Prosecution witnesses taking part in test aware that accused was injured in exchange of fire‑Accused alone bandaged and unconscious at identification test‑Magistrate supervising test deposing that only eyes of accused were visible at time of identification test‑Identification by eyes, held, not possible and identification test in circumstances of no value.

S. 392‑Robbery‑Particulars of stolen articles neither given in F. I. R. nor by prosecution witness‑Mere recovery, held, not sufficient to corroborate prosecution case against accused beyond reasonable doubt.

S. 9‑Identification test -Supervising Magistrate reaching later than prosecution witnesses taking part in identification test‑Prosecution witness admitting (in lower Court) to have been led to the test by a policeman in plain clothes‑Possibility that accused had been pointed out by police to prosecution witnesses prior to test, held, cannot be ruled out, in circumstances of case.

S. 9‑Identification test‑Two accused mixed up with only 7 other persons (dummies) at time of identification Ratio of dummies, held, in total disregard of settled law and identification test illegal.

Kaim and others v. The State P L D 1961 Kar. 728 rel.

Ss. 392 & 397‑Robbery-- Recovery of stolen property‑Prosecution witness stating to have signed incriminating articles at time of recovery‑No signature or thumb‑ impression found on articles when produced in Court‑Pro secution not examining alleged owner of articles‑Recovery of articles being in common use, held, of no evidentiary value in circumstances.

Azizullah K. Shaikh for Appellants.

Usman Ghani for the State.

Date of hearing : 17th April 1969.

All the appellants have been tried by an Additional Sessions Judge, Sukkur and convicted under section, 392/397, P. P. C. and sentenced to seven years' R. I. They have all filed appeals which have come up for hearing before me. As these appeals involve common questions of fact and law, I shall dispose them of by this judgment.

2. According to the prosecution the material facts are as follows:

On 5th December 1967 P. W. Adalat Khan was driving Truck No. KAU 6551. P. W. Mohammad Anwar, another driver of the truck, and Ghulam Mohammad cleaner were also sitting' in the truck. When a truck reached the railway crossing gate on Hamayun Thul Road, it had to stop, because the railway gate was closed. As the gate was not opened the truck had to wait. After some time, three persons came out, one of whom had a gun and other two had a lathi and a hatchet. They asked P. Ws. Adalat Khan, Moham mad Anwar, Ghulam Mohammad to get out of the bus, and searched their persons, they robbed P. W. Adalat Khan of a ten rupee note, P. W. Mohammad Anwar of his wrist watch and Ghulam Mohammad of a loincloth and chappals. Then they told them to go away in the truck, therefore, they drove off in their truck. After about two miles, they met a police party and they informed the police about the occurrence. Therefore, the police returned with them to the place of occurrence. The gate was again closed, therefore, they blew the horn of their truck, and the three persons, who had robbed them, again came out. The police called upon them to surrender, but one of them fired. The police also started firing, and the three persons ran away, but one of them had been hit in the firing. The next morning at about 10.00 a.m. P. W. Adalat Khan lodged an F. I. R, Exh. (13) with the Sultankot Police Station, which was only six miles from the place of the offence. The appellant Waheed Bux, who had been injured in the firing, was arrested on 6th December 1967 and the other two appellants were arrested on 9th December 1967. According to the prosecution, the appellant Haleem had been armed with a gun, the appellant Hashim with a lathi and appellant Waheed Bux only had a stick. But no recoveries of weapon were made. The Police only secured from Waheed Bux a wrist watch and from Hashim the loin cloth and chappals of Ghulam Mohammad. Identification parades were also held after the arrest of the appellants by P. W. Mukhtiar Head Munshi and First Class Magistrate, Shikarpur. On 6^th December 1967 Ghulam Mohammad and P. Ws. Adalat Khan and Mohammad Anwar identified the appellant Waheed Bux at an identification parade in the hospital at Shikarpur. On 9th December 1967 another identification parade was held in the Talooka Office, Shikarpur in which Ghulam Muhammad, P. Ws. Mohammad Anwar and Adalat Khan identified the other two appellants. After completing investigations the appellants were challaned.

3. In their defence in the Courts below, the appellants denied the offences and the alleged recoveries. They admitted they had been identified at the identification parades, but they said that the Police had pointed them out to the prosecution witnesses. They also pleaded that they had been falsely impli cated on account of enmity, and in this connection the appellant Haleem said that he had been falsely implicated because his cousin had filed a criminal case against S. I. P. Ghulam Abbas, therefore, the police had enmity against him. In support of his plea, he produced a certified copy of a judgment of an Additional Sessions Judge, Sukkur in which a case against his cousin filed by Ghulam Abbas S. I. P. had been dismissed. The appellants did not produce any other evidence in their defence.

4. Both P. Ws. Adalat Khan and Mohammad Anwar have admitted that the occurrence took place on a dark and moonless night and that they had never seen the appellants before, therefore, the first question for consideration in all these appeals is whether there is proper evidence of the identifica tion of the assailants. Both P. Ws. Adalat Khan and Moham mad Anwar said, that the appellants had searched them and robbed them and that they had been able to seethe faces of the robbers because of the light of their truck. They further said, that the appellants Hashim and Waheed Bux had also searched the truck, which would imply that they had more time to see these appellants. However, it is very significant that the F. I. R. lodged by P. Ws. Adalat Khan does not contain any description whatsoever of the assailants. Further both P. Ws. Adalat Khan and Mohammad Anwar were familiar with the road on which the occurrence took place. The police station was only six miles from the place of occurrence, but although the occurrence took place at 10‑30 p. m. Adala Khan lodged an F. I. R. the next morning at 10‑30 a. m. Both the prosecution witnesses have said that after the occurrence they drove away from wardat, they met a police party after bout two miles, and drove back with the Police party to the wardat, and there was exchange of fire between the police party after which the Police told them to go away. All this could hardly take more than half an hour, yet P. W. Adalat Khan did not lodge an F. I. R. till 10‑00 a. m. the next morning. There is absolutely no doubt that there has been great delay in lodging F. I. R. and prosecution have submitted no explanation of this delay, this casts doubt on the prosecution evidence.

5. I have observed that the appellant Waheed Bux was arrested on 5th December 1967 and that he was identified at an identification parade the same day. Both the prosecution witnesses have taken pride in saying that they had identified the appellants without any difficulty. However. P. W. Mukhtiara, the Head Munshi and Third Class Magistrate, who conducted these identification parades, said that the identification of Waheed Bux took place in hospital and that he was mixed up with seven other persons. He admitted only in cross- examination as follows : The accused Waheed Bux was uncons cious and the others were in their senses. Waheed Bux was bandaged. His face was covered and only eyes were visible. The prosecution witnesses were aware that one of the appellants had been injured in the firing by the Police, yet the only person in the parade, who was in bandages and was unconscious, was the appellant. An identification in these circumstances is of no value. In order to overcome this difficulty, P. W. Adalat Khan denied that Waheed Bux's face was bandaged at the time of the identification test but, in view of P. W. Mukhtiara's evidence, it is clear that P. W. Adalat Khan deliberately gave false evidence. Further P. W. Mukhtiara has said in evidence that at the time of the identification test only the eyes of the accused Waheed Bux were visible. Therefore, even if P. Ws. Adalat Khan and Muhammad Anwar had seen the assailants properly it was not possible for them to identify any of the assailants only by his eyes. Additionally, the claim of the witnesses to identify Waheed Bux casts very great doubt on their veracity. It is true that a watch was recovered from this appellant. But P. W. Adalat Khan did not give any particulars of the watch in the F. I. R. lodged by him nor has P. W. Muhammad Anwar given any particulars of his watch, therefore, in the circumstance discussed, the recovery of the watch is not sufficient to corro borate the prosecution case against Waheed Bux. Accordingly, I hold that the prosecution have failed to prove beyond reasonable doubt the guilt of this appellant and his appeal is allowed.

6. I have now to consider the appeals of the appellants Hashim and Haleem. Both these appellants were identified at an identification parade held in the Talooka Office, Shikarpur at 9‑12‑1967. Learned counsel for the appellants has referred me to the discrepancies in the prosecution evidence about this identification: According to P. W. Mukhtiara, who held this identification parade the parade was held at 10‑30 a. m. but P. Ws. Adalat Khan and Mohammad Anwar said that it was held at 2‑33 p. m. Further according to P. W. Mukhtiara, both the appellants and the prosecution witnesses who had to identify them, had arrived at Talooka Office, where the parade was held, before he came. This was unfortunate. Learned counsel for the appellants submitted that the appellants had been pointed out to the prosecution witnesses by the police before the identification test was held. Both P. Ws. Adalat Khan and Muhammad Anwar have denied this allegation in their cross‑examination, but P. W. Muhammad Anwar had admitted in his statement in the lower Court that he had been led to the identification test by a Policeman in plain clothes. There fore, as the appellants were present, the possibility that the police had pointed out the appellants or described them to P. Ws. Adalat Khan and Muhammad Anwar cannot be excluded. It is true that P. W. Muhammad Anwar denied in his evidence in the Sessions Court that lie had been led to the identification test by a policeman in plain clothes. But he was confronted with his statement in the lower Court and his denial was proved false. These circumstances cast consi derable doubt on the identification test of the appellants Haleem and Hashim, but there is another defect in the test which is fatal to the case of the prosecution.

7. P. W. Mukhtiara admitted that these two appellants were mixed up with only seven other persons. Learned counsel therefore submitted that the ratio of the persons to be identified with the dummies was in total disregard of the settled law, therefore on this ground the identification test was illegal. In support of this submission learned counsel referred me to a judgment of Inamullah, J. in Kaim and others v. The State (P L D 1961 Kar. 728). In paras. 9 and 10 of the said judgment Inamullah, J. has observed as follows:

"9. There is much force in the contention that the identification does not conform to the rule laid down by Courts to safeguard against mistakes. In this connection I may reproduce a few lines from Monir's Evidence Act, Volume 1, 4th Edition, page 44. The proportion of 5 : 1 has been held to be insufficient to eliminate the element of chance. It runs as under:

The possibility of a witness identifying the accused by chance should be reduced as much as possible as many under-trial per sons as possible should be mixed with the suspect who is put up for identification. There is no hard and fast rule laid down by the Court prescribing a particular ratio between the suspected persons and the innocent persons. Too large a number of persons should not be mixed. A proporation of 5 : lis quite insufficient to eliminate the element of chance. Each suspect should be put up separately for identification mixed with as large a number of innocent persons as possible, in any case not less than 9 or 10.

There are some cases in which a ratio of lass than 9 or 10 to 1 is held to be sufficient. In the case of Kaim and Khadim Hussain in the identification test through Ghulam Muhammad complainant the ratio would be 1 : 3, and by other witnesses the identification of all the four appellants will be 1 : 1. I do not think this proportion of persons with the suspects was sufficient to eliminate the element of chance.

(10) The very fact that the prosecution witnesses have made no mistake whatsoever in the identification test of the appel lants that the witnesses had already seen them before their test was held."

I am in respectful agreement with this judgment which follows the long established law on the subject. The identification test of these appellants was held in disregard of the principles laid down in this judgment, therefore I hold that the test was not properly held. Confronted with this difficulty Mr. Usman Ghani, learned counsel for the State, submitted that even if the identification test was not proper, the prosecution case against these appellants was corroborated by the recoveries. But the only recoveries in this connection were the recoveries of the chappal and loincloth of Ghulam Muhammad from the appellant Hashim, vide Mashirnama (Exh. 10) which was witnessed by the mashie P. W. Ali Mardan Shah. I am not impressed by this argument. In the first place, articles like a piece of loin cloth and chappals are in such common use that their recovery is of very limited value. Additionally, the mashie P. W. Ali Mardan Shah said in evidence that he had signed on both the loincloth and the chappals recovered, but this statement was proved to be false as there were no signatures or thumb‑impressions on these articles when produced in Court. Finally, Ghulam Muhammad, the alleged owner of the chappals and the loincloth, was not examined. Whatever be the reasons for not examining him, I have no hesitation in holding that, as he was not examined, the recovery of the chappals and the loin cloth has absolutely of no evidentiary value, therefore it fails to corroborate the case of the prosecution. As no other evidence has been produced by the prosecution, the prosecution has failed to prove beyond reasonable doubt, the guilt of the appellants Halim and Hashim, therefore they have also to be given the benefit of doubt.

8. In the result, for the reasons given herein on 17‑4‑1969 I allowed the appeals of the appellants and set aside the conviction and sentence passed against them and ordered their release forthwith from jail unless required on any other charge.

Appeal accepted.

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