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Criminal Appeal No. 50 and Murder Reference No. 40 of 1968, decided on 19th December 1968.
Ss. 396 & 397‑Dacoity with murder‑Recovery‑Crime weapon and clothes allegedly recovered at instance of accused‑Such articles remaining with Police for 8 days and origin of blood on them not determined‑Recovery, in circumstances of case, held, cannot furnish any evidence to connect accused with offence.
Lalu v. The State P L D 1959 S C (Pak.) 258 and Ghulam Rusool v. Ali Akbar P L D 1965 S C 363 ref.
Ss. 396 & 397‑Dacoity with murder‑Identification‑Conviction of accused cannot be upheld on test identification alone and without corroborative evidence.
Bashir Ahmad v. State 1968 P Cr. L J 1825; Wali Muhammad v. Crown P L D 1956 F C 402; R. v. Megratch (1949) 2 A E L R 495; R. v. Willam Thompson alias Pettit 2 Cr. App. Rep. 203 and Howell's State Trials, Vol. 28, p. 806 ref.
M. Anwar for Appellant.
Rustam Sidhwa for A.‑G. for the State.
Dates of hearing : 3rd to 6th and 9th December 1968.
Hafiz Ullah (26), a Pathan of Mohallah Nawaban, Bahawlpur City, Haider Shah (26), Syed of village Haiderpur, P. S. Uchh Sharif, District Bahawalpur, and Ahmad Bakhsh (40) Langah of Ahmadpur East, District Bahawal pur, were tried alongwith Yar Mohammad (35), Chaddar of Mohallah Farid Ganj, Montgomary, Shah Muhammad (55), Qureshi of Ahmadpur East and Hakim Qamar‑ul‑Haq (24), Rajput of Qaimpur, Tehsil Hasilpur, District Bahawalpur (village of occurrence) for having on the night between the 30th/ 31st of May 1966, alongwith Zahid Rashid approver (P. W. 23) and Abdul Ghani and Abdur Rashid absconders, committed the murders of Rahim Bakhsh and his son Imam Bakhsh in their house in basti Rahim Channer, in the area of village Qaimpur, police Station Hasilpur, while committing dacoity in that house. Hafiz Ullah, Haider Shah and Ahmad Bakhsh appellant were convicted under section 396 read with section 397, P. P. C. and each of them has been sentences to death subject to confirmation try this Court. Yar Muhammad, Shah Muhammad and Hakeem Qamar‑ul‑Haq, who had allegedly entered into a conspiracy for committing dacoity, were found not guilty and were acquitted.
2. The three convicts (appellants) have filed separate appeals against their convictions as well as sentences which are numbered as Cr. Appeals Nos. 50, 51 and 72 of 1968. The case is also before us under section 374, Cr. P. C., for the confirmation of the sentences of death imposed on the three appellants. Abdul Aziz (P. W. 28) has also filed a Criminal Revision (No. 626 of (968) for setting aside the order of acquittal of Yar Muhammad, Shall Muhammad and Hakim Qamar‑ul‑Haq and for ordering their retrial. This order will dispose of the three criminal appeals, the murder reference and the criminal revision, mentioned above.
3. According to the prosecution story as disclosed in the F. I. R., Rahim Bakhsh deceased was living with his family in basti Charmer in the area of village Qaimpur, Police Station Hasilpur. He seems to have been a well to do Zamindar owning about 15 squares of land. Three days before the occurrence, he entered into an agreement for the sale of 200 maunds of wheat with one Ahmad Din Dhuddi of Qaimpur at Rs. 13.50 per maund. Oil the evening before the occurrence, the said Ahmad Din came to the basti with three or four persons and got 180 maunds of wheat weighed out and made the same into bags. He left saying that he would bring a truck owing the night and pay the money while taking away the wheat. At about midnight, he came with 8/10 labourers and a truck and got the wheat bags loaded in the truck. He paid Rs. 2,430.00 as the price of wheat and another sum of Rs. 200.00 as advance towards the balance of the wheat. This sum of Rs. 2,630.00 was paid in the shape of currency notes. Ahmad Din then left with the truck for Mandi Hasilpur. Rahim Bakhsh put the currency notes in a cloth bag (Guthli) and kept the same in his dab. He then went to sleep on the roof of his house where his wife Mst. Khanan Mai (P. W. 26) and his son Abdul Aziz (P. W. 28) were also sleeping oil separate cots. His other two sons Allahditta (P. W. 25) and Imam Bakhsh deceased were sleeping in the courtyard of the house alongwith their respective wives Mst. Sharaf Elahi and Mst. Iqbal Mai (P. W. 27) and the children. A lantern which had been lit for the purpose of leading the wheat bags was kept burning in the courtyard. One pehr before sun rise, Mst. Khanan Mai raised a hue and cry on the roof of the house saying that dacoits had come and committed a murder. The inmates were awakened. The report of a gun‑fire was heard from the top of the house. Mst. Khanan Mai and Abdul Aziz came down stairs. Abdul Aziz P. W. was having injuries on his person which were bleeding. Alongwith them came down stairs six culprits out of whom one had a .12 bore gun, another had a pistol, two had spears, one had a sword and the sixth was armed with lalhi. They started belabouring the women‑folk and demanded keys from them. Imam Bakhsh intervened and four of the culprits armed with spears, a sword and a lathi caught hold of him and gave him spear and sword blows. He fell down in the courtyard. One of the culprits also gave a spear blow to Allahditta on his left arm. Mst. Khanan Mai out of fear threw the keys before the culprits at which the four culprits other than the ones with a gun and a pistol, started a search in the house. The outcries of the inmates, however attracted to the spot Ata Muhammad (P. W. 29), Muhammad Ramzan (P. W. 30) and Ghulam Hassan alias Punnu (not produced). They scaled over the boundry wall into the courtyard, threw torch lights at the culprits and challenged them. The culprits fired at them from their weapons twice or thrice. They were, however, not hit. The culprits then went up to the roof and again jumped out to make good their escape. Rahim Bakhsh was found lying dead on a cot on the roof of the house and the guthli containing the money was not found in his dab. Imam Bakhsh became unconscious as a result of the injuries and Abdul Aziz had also received injuries. The sound of starting of a motor was heard by the inmates of the house from the direction of the nearby canal bank and motor lights were also seen when the motor started towards Hasilpur.
4. After the occurrence, Allahditta P. W. left with his young son Abdul Qadir for the police post Qaimpur, about 1 miles from the place of occurrence, where he made on the morning of 31‑5‑1968 at 4‑15 a.m., the statement Exh. P. D., which recorded by A. S. I. Sarfraz Ahmad (P. W. 40). Sarfraz Ahmad sent the report Exh. P. D. to police station Hasilpur (nine miles away) where the formal F. I. R., Exh. P. D./1 was recorded at 5‑30 a.m. that morning by S. 1. Mohd. Bashir (P. W.41). Allahditta complainant was found injured and Sarfraz Ahmad A. S. I. prepared his injury‑statement Exh. P. B. M/1. He then proceeded to the place of occurrence and prepared the inquest report, Exh. P. B. A. in respect of the dead‑body of Rahim Bakhsh as also his injury‑statement Exh. P. A. Y. The A. S. I. sent the dead body of Rahim Bakhsh to the mortuary for post mortem examination. The injured persons Imam Bakhsh and Abdul Aziz had already been taken to the hospital at Qaimpur. The A. S. I. proceeded to that hospital and prepared the injury statements of Imam Bakhsh and Abdul Aziz, which are Exhs. P. B. D. and P. B. N. respectively. There was no doctor at Qaimpur and the two injured persons were sent to the Civil Hospital, Hasilpur. The A. S. I. went back to the place of occurrence and summoned two trackers namely, Fazil (P. W. 34) and Allah Wasaya. He found 10 or 12 foot‑prints inside the house which were followed up by the trackers. At this stage, S. I. Muhammad Bashir P. W. reached the spot, after having recorded at the police station the formal F.I.R. Exh. P. D /1, and took over the investigation of the case from A. S. I. Sarfraz Ahmad. He took into possession from the courtyard of the house the blood stained earth and sealed the same into a parcel, vide memo. Exh. P. G. He also took into possession the blood stained earth from the roof of the house which was sealed into a separate parcel under memo. Exh. P. H. He also recovered from the courtyard of the house a '12 bore empty cartridge and sealed the same into a parcel, vide memo. Exh. P. J. From the roof of the house, he recovered another '12 bore empty cartridge. which was also sealed into a parcel under memo. Exh. P. K. From the outer side of the back wall of the house, the S. I. recovered a live cartridge of '32 bore pistol and a '12 bore live cartridge, vide memos. Exhs. P. L. and P. M. respectively. From the roof of the verandah, he recovered the torch, Exh. P. A. vide memo. Exh. P. N. He got prepared five moulds (Exhs. P. 11 to P. 15) of foot‑prints from inside the courtyard of the house in the presence of the foot tracker Muhammad Fazil (P. W. 34). From the canal bank of Bahawal Canal, about four furlongs away, he got prepared another mould of a foot‑print, which Exh. P. 13. The moulds of the foot‑prints were taken into possession under memos. Exhs. P. E. and P. F., respectively.
5. On 15‑6‑1966, he received secret information about the names of the culprits in the present case. The same day, he arrested Hafiz Ullah appellant from Bahawalpur and recovered from his possession the key, Exh. P. 21 under memo. Exh. P.R. and canvas‑shoes Exh. P. 17 which Hafiz Ullah was wearing at the time of his arrest, vide memo. P. O. The shoes were sealed into a parcel. He warned the accused that he should cover his face as he was to be identified at a parade. He took him to the duty ,Magistrate, took his remand and got him lodged in the judicial lock‑up.
6. Thereafter, he proceeded to village Haiderpur in polio, station Uchh Sharif for the arrest of Haider Shah appellant and Zahid Rashid approver. Both of them were arrested by him at the bridge of the canal minor Haleem Wah. Haider Shah appellant was having at that time a revolver (Exh. P. 3) with a bandolier (Exh. P. 29) containing 19 live cartridges as well as a license (Exh. P. 25). All these articles were taken into possession under memo. Exh. P. A. E.
7. Then he came to Ahmadpur East and arrested Ahmad Bakhsh appellant. The foot‑wears of Haider Shah, Zahid Rashid and Ahmad Bakhsh were got removed by the S. I. Taken into possession and sealed in separate parcels under memo. Exh. P. Q. They were also made to cover their faces before being produced in the Court of S. D. M., Ahmadpur East, for obtaining remand. Yar Muhammad, acquitted accused, was arrested by H. C. Abdul Khaliq (P. W. 20) on 17‑6‑1966 from the area of village Behal P. S. Ludan, S. I. Muhammad Bashir arrested Shah Muhammad, acquitted accused, at Ahmadpur East on 26‑6‑1966 and Hakeem Qamar‑ul‑Haq, acquitted accused, was arrested by him on 2‑7‑1966 from his dera in village Qaimpur.
8. On 17‑6‑1966 the S. I. applied for an identification parade being held in respect of the four arrested persons. On the same day, he made another application for a foot‑print identification parade being held in respect of the said accused.
9. Ch. Shah Muhammad (P. W. 22), Tehsildar and Magistrate II Class, held on 17‑7‑1966, at the Central Jail. Bahawalpur, an identification parade, in respect of the three appellants. After taking necessary precautions and giving necessary warnings to the accused, he held the parade at which Mst. Khanan Mai, Mst. Iqbal Mai and Abdul Aziz P. Ws. correctly picked up the three appellants and Allahditta P. W. correctly pointed out Hafiz Ullah and Ahmad Bakhsh appellants, but picked up a wrong man for Haider Shah. Ata Muhammad and Ramzan P. W. correctly picked up Hafiz Ullah appellants but pointed out wrong persons for the other two appellants. On the same day, the same officer had at the Borstal Jail, Bahawalpur, an identification parade in respect of Zahid Rashid approver, who was correctly picked up by Mst. Khanan Mai, Mst. Iqbal Mai, Allahditta, Abdul Aziz, Ghulam Hussain and Ata Muhammad P. Ws. while Ramzan P. W. picked up a wrong man.
10. On 21‑6‑1966, Mr. Shah Muhammad (P. W. 22) held another parade at the new Central Jail, Bahawalpur, in respect of the foot‑prints of the three appellants, Yar Muhammad, acquitted accused and Zahid Rashid approver. After the usual precautions and warnings, the Magistrate made the three appel lants, Yar Muhammad and Zahid Rashid to walk in the parade. Muhammad Fazil tracker (P. W. 34) correctly identified, the foot‑prints of Hafiz Ullah appellant and Yar Muhammad, acquitted accused. For Haider Shah and Alimad Bakhsh appellants, the witness picked out wrong foot‑prints. It may be mentioned here that the Magistrate had tried to hold this parade on 18‑6‑66 but the four accused had declined to participate therein and had objected that their shoes had been in police custody and the tracker had the occasion to see the same. They had pleaded for a bare‑foot parade vide memo. Exh. P. A. O. This objection had been disallowed.
11. On 23‑6‑66 Hafiz Ullah appellant while in custody led the police party to the dera of Hakim Qamar‑ul‑Haq in Qaimpur and there pointed out a room which was locked with the key Exh. P. 21 already recovered from him, he opened the lock Exh. P. 22 of that room and brought from inside the sword, Exh. P. 1, shirt Exh. P. 23 and the shalwar Exh. P. 24, all of which were found blood‑stained. The sword and clothes were sealed into separate sealed parcels under memos. Exhs. P. S. and P. U. respectively. On 26‑6‑66, Ahmad Bakhsh appellant, while in custody, led the police to his house and got recovered from a room therein pistol Exh. P. 5 (without license) and blood‑stained chaddar Exh. P. 30. The two were sealed into separate sealed parcels, vide memo. Exh. P. X.
12. On the same day, Haider Shah appellant led the S. I. to his dera at Haiderpur and got recovered from a heap of chaff the shirt Exh. P. 9 and trousers Exh. P. 10, both of which were blood‑stained. They were taken into possession and sealed in a parcel, vide memo. Exh. P. A. C. On the same day and at the same time, Zahid Rashid approver also got recovered from the same dera the knife Exh. P. 4, the trousers, Exh. P. 7 and shirt Exh. P. 8, all of which were stained with blood. The knife and die clothes were sealed separately and taken into possession, vide memos. Exhs P. A. A. and P.A.B. respectively: On 2‑7‑66, Hakim Qamar‑ul‑Haq got recovered from his dera the blood‑stained shirt belonging to Abdur Rashid absconder, marked as Exh. P, 17, which was taken into possession, under memo. Exh. P. A. F. This shirt was not sent to the Chemical Examiner. On 26‑7‑66 the S. I. took into possession, vide memo. Exh. P. B. L. ticket book of the toll tax maintained by the contractor at the boat bridge of river Sutlej near Bahawalpur. The S. I. also got the site plan, Exh. P. A. L., prepared by the local Patwari showing the place of occurrence. On 7‑7‑1966, S. I. Muhammad Bashir made an application, marked Exh. P. B. T., for tendering pardon to Zahid Rashid, as the direct evidence available against the accused was prima facie insufficient for their conviction. The statement of Zahid Rashid was accordingly recorded and he was made an approver in the case by the District Magistrate, Bahawalpur, on 9‑7‑1966, under the orders, marked Fxh. P. B. T/1.
13. According to the reports of the Chemical Examiner, Exhs. P. B. U. and P. B. V. the earth taken into possession from the court‑yard and the roof of the house, the sword and the knife as well as various garments, recovered by the police in this case, were all stained with blood. According to the report of the Serologist, the earth recovered from the two places and the knife recovered from Zahid Rashid approver were found stained with human blood, while the origin of blood on the remaining articles could not be determined as the blood had disintegrated.
14. In the opinion of Mr. Anwar‑ul‑Haq Bajwa, Fire‑arms Expert (P. W. 42), and according to his report marked Exh. P. B. Z., the ' 12 bore crime empty, marked C. 1 had been fired from ' 12 bore pistol, Exh. P. 5 and crime empty Exh. C. 2 had not been fired from the said pistol.
15. Dr. Nisar Ahmad Bajwa (P. W. 2) performed on 31‑5‑1966 at 1‑00 p.m., post‑mortem examination on the dead- body of Raheem Bakhsh, aged about 90 years and found the following injuries :‑
(1) One incised wound 1" x " x 2" on the posterior part and centre of the head just below the prominent part of occipital bone. Wound was horizontal.
(2) Swelling 4" x 3" on the right side of face, in front of right ear.
(3) Swelling 4" x 2" on the left side of face.
(4) Bilateral swelling behind the ears, each 2" x 1".
(5) Swelling of the occipital region and upper part of neck.
According to the doctor, death was due to injuries to the spinal cord and the head. In his opinion, the injuries were sufficient to cause death in the ordinary course of nature.
The same doctor on the same day at 8‑00 a.m., medically examined Imam Bakhsh and found the following injuries :‑
(1) An incised wound " x '' x " on the medial side of right fore‑arm along the arm in the centre.
(2) An incised wound " x " x " on the front side and lower part of right upper arm,
(3) A slightly incised wound " x " x " on the front and upper part of right side of chest, " from the mid line.
In the doctor's opinion, injury No. 3 was dangerous and could be caused by the sword, Exh. P. 1.
On the same day, the same doctor medically examined Abdul Aziz P. W., aged about 16 years, and found the following injuries on his person :‑
(1) An incised, slightly curved, wound " x " x " on the left side of back, half‑inch from the midline on the lower part of chest.
(2) One incised wound " x " x " on the medial side of right upper arm above the elbow.
(3) One incised wound 1" x 1/6" x " on the right; side of neck, on the right side of trachea in upper part of neck.
16. Dr. Muhammad Munir Khaliq (P. W. 3) medically examined Allahditta P. W. on 1‑6‑1966 at about 11‑00 a.m. and found an incised wound on his left fore‑arm at its back which was just above the elbow joint.
17. Dr. Abdul Samad Menton (examined in the Court of C. M. as P. W. 22) performed on 1‑6‑1966 at 10‑30 a.m., post mortem examination on the dead‑body of Imam Bakhsh (who died in the hospital in the previous evening) and found the following injuries :‑
(1) Penetrating wound in front of chest right side upper part, 1" lateral to the medial end of clavicle. Margins were gaping apart and inverted.
(2) Incised wound on upper arm 3" above right elbow joint, size 1" x " x 1".
(3) Incised wound on right forearm longitudinaly present on the lateral aspect middle position, size 1" x " x ".
Death in the doctor's opinion was due to injury to right lung and haemorrhage which was sufficient to cause death in the ordinary course of nature.
18. The accused in their statements under section 342, Cr. P. C. generally denied the prosecution allegations relating to the occurrence as also the various recoveries made at their instance. False implication was pleaded on account of enmity. Hafiz Ullah stated before the C. M. that he had been arrested on 9‑6‑1966 and not on 15‑6‑1966 claimed by the prosecution. With regard to the foot‑prints parade, he stated that the police had shown his foot‑prints to the tracker Muhammad Fazil, both bare footed and with shoes on. He further mentioned that he was the only person in the parade who had convas shoes on. With regard to the identification parade, he objected that he had been working as Field Assistant at Qaimpur for the previous 1 to 1 years and that the police had also shown him to the witnesses. The other two appellants similarly claimed that they had been arrested on 9‑6‑1966 and were shown by the police to the witnesses before the identification parade was held on 17‑6‑1966.
19. Hafiz Ullah produced four D. W, to establish his Arrest on 9‑6‑1966.
20. The prosecution relied at the trial on the testimony of Zahid Rashid approver; on the eye‑witness account given by Allahditta, Mst. Khanan Mai, Mst. Iqbal Mai, Abdul Aziz, Ata Muhammad and Ramzan P. Ws; and the evidence furnished by the identification parade as well as the parade held for the foot prints of the accused. Reliance was also placed on the recoveries of the blood‑stained sword and knife, blood‑stained garment and the report and opinion of the Fire‑arms Expert regarding the empty Exh. C. 1, having been fired from the country made pistol, Exh. P. 5. The learned Sessions Judge rejected the testimony of Zahid Rashid approver as useless. He also rejected the evidence of the approver and Manzur (P. W. 33) with regard to the con spiracy to commit the dacoity on the basis of which conviction was claimed against the three acquitted accused, namely, Yar Muhammad, Shah Muhammad and Hakim Qamar‑ul‑Haq. Learned counsel for the State has not challenged the reason mentioned by the learned Sessions Judge for rejecting the afore mentioned testimony.
21. In addition to the approver's evidence, which cannot be relied upon, there is against the appellants, evidence of test identification and of recoveries. Besides Hafiz Ullah was also correctly picked out by Muhammad Fazil P. W. The test identification evidence will be taken up at a later stage and the remaining evidence against each of the three appellants is as given below :‑
Re: Hafiz Ullah.
(i) Foot‑prints were correctly picked out by Muhammad Fazil P. W. at the identification parade held by Ch. Shah Muhammad, Telisildar and Magistrate II Class (P. W. 2) on 21‑6‑1966 in the New Central Jail, Bahawalpur. In place of the foot‑prints of Haider Shah and Ahmad Bakhsh appellants, Muhammad Fazil tracker wrongly picked up by foot‑prints of under‑trial prisoners Fazi Muhammad and Muhammad Ashraf, who had been joined in the parade. Since Muhammad Fazil had picked up two wrong foot‑prints, it is not safe to rely oil his opinion as a foot‑print expert. In addition, it has been claimed by Hafiz Ullah appellant in his statement under section 342, Cr. P. C. that the shoes recovered from him by the police at the time of his arrest were canvas‑shoes and that he was the only person jointed in the foot‑prints parade, who was wearing canvas shoes. His contention is supported by the recovery‑memo. in respect of the shoe, and there is nothing on this record to indicate that any other person joined in the parade was wearing canvas‑shoes. In the circumstances, it was not difficult for any person to pick out his foot‑print with a distinct foot‑wear. We are, therefore, unable to place any reliance on this piece of evidence.
(ii) At the time of his arrest on 15‑6‑1966, the police had recovered from him the key. Exh. P. 21. While in custody, he led the police on 23‑6‑1966 to his dera, opened the lock, Exh. P. 22 with the key, Exh, P. 21 supplied by the police and took out therefrom sword, Exh. P. 1, shirt Exh. P. 23 and trousers Exh. P. 24, all of which were stained with blood. According to the report of the Government Serologist, however, the blood on these articles had disintegrated and its source could not be determined. Learned counsel has relied. on the authority of the Supreme Court reported as Lalu v. The State P L D 1959 S C (Pak.) 258, wherein their Lordships were pleased to observe at page 267 "that the proof afforded by the Chemical Examiner's report in regard to the alleged lion‑cloth of Lalu is completely without effect" and that "the simple fact that the origin of the blood could not be determined is by itself sufficient for depriving this recovery of any evidentiary value whatsoever". In Ghulam Rasool v. Ali Akbar P L D 1965 S C 363, however, their Lordships were pleased to take into consideration the opinion of the Chemical Examiner regarding the weapon and the clothes being blood‑stained, although their source could not be determined after observing "that the evidence of eye‑witnesses in this case is unimpeachable". In the present case, the appellants were not known to the eye witnesses and this case is, therefore, more properly covered by Lalu's case, in the light of which the sword Exh. P. 1, shirt Exh. P. 23 and trousers Exh. P. 24, cannot furnish any evidence to connect Hafiz Ullah appellant with the occurrence.
22. Another‑ objection raised against the recoveries was, that the key Exh. P. 21 had been recovered by the police on 15‑6‑1966 when Hafiz Ullah appellant was arrested. The alleged recoveries were made at the instance of Hafiz Ullah appellant on 23‑5-1966. It was contended that the gap of eight days could leave provided an opportunity for the articles being planted or their being stained with blood. Moreover, Nazir Ahmad (P.W. 21), who is the only witness in proof of this recovery, apart from S. I. Muhammad Bashir, says that Hafiz Ullah and a constable had gone inside a room and that they had come out with these articles. In view of the above and of the fact that the key of the lock of the room from where the recovery was made had remained with the police for eight days prior to these recoveries and taking into consideration the fact that the source of blood on these articles had not been determined, these t ecoveries, in our opinion, cannot, be of any avail to the prosecution.
Re: Haider Shah.
22. A licensed revolver, Exh. P. 2 was recovered from his possession at the time of his arrest on 15‑6‑1966, alongwith the license and bandolier. On 26‑6‑1966, he is alleged to have led to the recovery of shirt Exh. P. 9 and the trousers Exh. P. 10. The revolver Exh. P. 2 has not been related to the occurrence and the source of blood on Exhs. P. 9 and P. 10 has also not been determined to be human. Out of the recovery witnesses Muhammad Nawaz (P. W. 38) has stated that Haider Shah was not present at the time of the recovery and be was declared hostile. Ali Muhammad (P. W. 24) stated at the trial that a shirt was recovered in his presence and that he was not sure about the other item as to whether it was a shalwar or any other wear. In the Court of Committing Magistrate, this witness stated that only a pistol was recovered from Haider Shah, in his presence. In the circumstances, the recoveries from and at the instance of Haider Shah appellant cannot furnish any evidence connecting him with the commission of offence in this case.
Re: Ahmad Bakhsh.
23. He is alleged to have led on 26‑6‑1966 to the recovery of blood‑stained chaddar, Exh. P. 30 and the pistol Exh. P. 5 from which according to Anwar‑ul‑Haq (P. W. 42), the crime empty C. I, recovered from the courtyard, had been fired. The source of blood on the chaddar Exh. P. 30 could not be determined as the blood had disintegrated. The recovery of the pistol Exh. P. 5 at the instance of this appellant, however, has not been proved by any satisfactory evidence. None of the two independent witnesses of the recovery, namely, Ali Muhammad (P. W. 24) and Abdul Wahab (P. W. 37) has supported this recovery. According to them, this recovery had been made when Ahmad Bakhsh appellant was not present. The recoveries of the pistol Exh. P. 5 and chaddar Exh. P. 30 are, therefore, of no significance to the prosecution.
24. Learned State counsel agreed that the testimony of Zahid Rashid approver was rightly rejected by the learned trial Judge. He also did not place any reliance on the recoveries made from and at the instance of the three appellants. He, however, relied on the testimony of the eye‑witnesses made in the Court of the Committing Magistrate and at the trial, according to which the three appellants had with Zahid Rashid and the two absconders participated in the occurrence. He also relied on the test identification parade in which Mst. Khanan Mai, Mst. Iqbal Mai and Abdul Aziz P. Ws. had identified all the three appellants, Allahditta had identified Hafiz Ullah and Ahmad Bakhsh accused and Hafiz Ullah had also been correctly picked up by Ramzan and Ata Muhammad P. Ws.
25. Learned counsel for the appellants, however, urged that it is never safe to record a conviction solely on the basis of a test identification parade and that the test identification parade in the present case was also below standard and open to several objections. According to the F. I. R., the occurrence had taken place about one pehr before sunrise. Sunrise at Lahore on 31‑5‑1966, i.e. the day following the occurrence, was 4‑57 a.m. and the moon set time on the previous night was at 2‑19 a.m. According to Allahditta P. W., the moon had already set when the occurrence had taken place. Even if the moon had not set, it must be closest to the horizon and would have given almost no light inside the courtyard when the occurrence took place. Allahditta P. W., who is the son of Rahim Bakhsh and brother of Imam Bakhsh deceased and the complainant in the case also did not mention in his statement before the committing Magistrate that any lantern was burning at the time of the occurrence. In the F. I. R., which was lodged by him, he merely mentioned that the lantern was lit at about mid‑night when the wheat‑bags had to be loaded in the truck outside. This would clearly suggest that lantern was not being lit in the house during the night as a matter of routine. This witness also stated that the lantern was placed on a plat‑form two feet high. Even if the lantern had not been put out after the loading of the wheat‑bags in the truck, it must have been dimmed. No lantern or any torch was taken into possession by the police. In the circumstances, it has been urged by the learned counsel for the appellants that it is not safe to find that there was any lantern light or torch light or moon light to assist the identification of the culprits during the occurrence. It was also submitted for the appellants that the occurrence had not taken long considering the number of injuries received by the victims and in view of the fact that the culprits had to run away when the neighbours had rushed to the spot and started challenging them. It was also pointed out that during the commotion when the inmates of the house were subjected to considerable terrorization and questioning, they could not have had the normal opportunities to register the features of the assailants or the clothes worn by them or the weapons with which they were armed. Support was sought for this argument by the discrepancies between the F. I. R. and the evidence at the trial with regard to the phases of the occurrence, the weapons used, the culprits holding different weapons and the injuries inflicted by the various assailants to the different injured persons. One dang and two spears disclosed in the F. T. R. were replaced at the trial by one knife and two revolvers. According to the F. 1. R., the inmates had been awakened by the outcries of Mst. Khanan Mai who was shouting "the dacoits had come and had committed murder". A sound of gun fire is also mentioned before the assailants and Mst. Khanan Mai and Abdul Aziz P. Ws. had come down into the courtyard. At the trial, the story disclosed by Mst. Khanan Mai and the other P. Ws. was substantially different.
26. Another very important improvement on the F. I. R. story at the trial stage was that according to the F.I.R., Ata Muhammad (P. W. 29), Ramzan (P. W. 30) and Ghulam Hassan alias Pannu had rushed to the spot, scaled over the boundry wall into the courtyard of the house, threw battery lights on the culprits and had challenged them, at which the culprits had fired at them twice or thrice. This part of the F.I.R. story was totally discarded at the trial, and it was claimed instead, that these witnesses had peeped over the boundry wall and thrown battery lights at the culprits and also challenged them. This is highly improbable firstly because the boundry wall was ten to eleven feet high and secondly because no neighbour would normally offer his head as an easy target to dacoits armed with tire‑arms. On the basis of these facts and circumstances, it was submitted that the eye‑witnesses in this case had neither extra ordinary recollective faculties to register the features of their assailants, nor were they scrupulously loyal to truth. Abdul Aziz (P. W. 21) had also stated that the assailants had muffled lip their faces. This may be true especially if Hafiz Ullah was also an assailant, as he was posted as Field Assistant in the same village and the victim family seems to be enjoying a good social and economic status, as according to Allahditta P. W. his father owned about 15 or 16 squares of land. A Field Assistant is generally to assist the land‑owners in better methods of farming. Even if the female inmates of the house had not noticed him in the village, the males should have been meeting him and should have been able to identify him and name him in the F.I.R.
27. Another important point damaging to the test identification evidence is that according to the evidence of Shah Muhammad Chaudhry, Tehsildar (P. W. 22), who conducted the parade, the eye‑witnesses were placed outside the jail premises and were called one by one through Ashraf Jail Warden. The Magistrate also did not change the position of the appellants in the parade after each witness had been given the parade test. In these circumstances, it was argued that the possibility of the outside witnesses getting a clue about the culprits through Ashraf Warden cannot be reasonably ruled out.
28. There is yet another feature in this case which goes to the very root of the prosecution version. All the three appellants had stated at the trial that they had been arrested on 9‑6‑1966 and not on 15‑6‑1966, as claimed by the police. The test identifica tion parades were held in the two jails at Bahawalpur on 17‑6‑1966. Hafiz Ullah appellant has produced both oral and documentary evidence to show that his officers had sent official information to the Extra Assistant Director Agriculture, Bahawalpur, regarding his arrest in this case on 9‑6‑1968. Allahditta (P. W. 25), the complainant in the case, has stated in his cross‑examination as follows :‑
"It is correct to suggest that 8 or 10 days after the occurrence, I was told by Sarfraz S. H. O., that the dacoits who had committed murder at our house had been arrested. He also congratulated me."
The occurrence had taken place on the night between the 30th/31st of May 1966, and the above statement of witness lands considerable support to the contention of the appellant. Zahid Rashid approver (P. W. 23) has also stated as follows :‑
"After about 5 or 6 days of my arrest, I was sent to jail during which my identification and foot‑prints parade was held."
He was arrested alongwith the appellants and identification parade in respect of him was also held on 17‑6‑1966. Learned counsel for the appellants have contended that the statements of Allahditta and Zahid Rashid P. Ws. as also the oral and documentary evidence produced by Hafiz Ullah appellant are sufficient to create a reasonable doubt with regard to the date of arrest of the appellants. The suggestion was that the police had enough opportunity to show the appellants and the approver to the eye‑witnesses before they were given the test parade. We are in agreement with this contention and find further support therefor from the fact that according to the test parade Ata Muhammad and Ramzan P. Ws. had also correctly picked out Hafiz Ullah appellant. Ata Muhammad had also correctly picked out Zahid Rashid approver. The claim made in the F. I. R. that Ata Muhammad and Ramzan P. Ws. had scaled over the boundry wall into the courtyard of the house was discarded at the trial and instead it was claimed that they had been peeping over the boundry wall with torch lights. The distance between the place where the occurrence, had taken place and the boundry wall was more than 100 feet. The culprits must not have been facing these. witnesses. Hence these witnesses had not the remotest chance of registering their features and of identifying them. The fact that both of them had identified Hafiz Ullah at the parade and that Ata Muhammad has also identified Zahid Rashid strongly suggests that this could not have been possible without some aid. In the cir cumstances, we are unable to rely on the evidence furnished by the test identification parades.
29. Mr. Saleem, learned counsel for Haider Shah appellant relied on Bashir Ahmad v. State (1968 P Cr. L J 1825), in which our brother Muhammad Afzal Cheema, J. had observed as follows :‑
"Even otherwise in cases of dacoity committed at night where people are likely to be terrorised, identification tests are generally considered to be of very little evidentiary value."
In Wali Muhammad v. Crown (P L D 1956 F C 402), five assailants were named in the F. I. R., while the remaining nine were picked out at the test parade and their Lordships were pleased to observe as follows at page 406 :‑
"The results of the parade were discounted by the learned Judges on the ground that in the prevailing darkness with only the light of the lantern and a few torches to see by, the witnesses could not be expected to memorize the faces of so many dacoits. There are strong grounds in support of the existence of doubt regarding the participation of these nine accused persons in the dacoity."
Mr. Saleem also relied on English authorities reported as R. v. Megratch ((1949) 2 A E L R 495), William Thempson alias Pettit (Cr. App. Rep. 203) midi Howell's State Trials, Vol. 28, p. 806. In Pettit's case, 21 witness had identified him as the person involved in these crimes. It was however, found that the man was different. In the case of Megratch, two police officers had had ample opportunity observe him and had picked him out at the test parade. They were found to be mistaken. In the Howell' State Trials the following appears at pages 819 and 820:‑‑‑‑
"It has been known that the light of the sun has deceived men of greatsense and sagacity; it so happened a few years ago in England. Sir Thomas Devenport, an eminent English Barrister, a gentleman of acute mind, and strong understanding swore possitively to the persons of two men, whom he charged with robbing him and his lady in the open day‑light. He was positive, and the hour he stated was about two o'clock in the afternoon. But it was proved, by the most conclusive‑ evidence, that the men on trial were, at the time of the robbery, attending a company at dinner, one as master of the tavern, the other as walter, at so remote distance from where Sir Thomas was robbed, that the thing was impossible. The consequence was, the men were acquitted ; and some time after the robbers were taken, and the articles taken from Sir Thomas and his lady found upon them. Sir Thomas, on seeing these last men candidly acknowledged his mistake and as I have heard, gave a recompense to the person he pro secuted, and who narrowly escaped conviction."
Mr. Saleem has also read out to us an extract from London Times dated the 22nd April 1968, according to which the National Council of Civil Liberties had been disturbed over the convictions recorded during the year on the basis of test identifications which had been factually found to be wrong and had recommended that no person should be convicted on test identification alone and that the judiciary be instructed to warn juries of the danger of recording a finding on the basis of test identification alone.
30. In view of the rules of caution as laid down in the afore‑mentioned cases, we are unable to uphold the convictions recorded against the appellants on the basis of test identification alone and without any corroborative evidence. In fact, the investigating agency was also conscious of this weakness and had therefore moved for the grant of pardon to Zahid Rashid on the plea that the evidence available in the case was not sufficient to secure the conviction of the accused, vide memo. Exh. P.B.T. In our opinion, there is not enough evidence in the case to warrant the conviction of any of the appellants. We, therefore, allow the three appeals filed by the appellants, set aside the convictions recorded against them and the sentences imposed upon them and direct that they shall be set at liberty forthwith, if not wanted in any other case. The sentences of death imposed upon the three appellants are not confirmed. We have not considered it necessary to allow the admission of of additional evidence as was prayed for by Hafiz Ullah appellant.
31. For the reasons apparent from the above, we find no force in Criminal Revision No. 626 of 1968 filed on behalf of Abdul Aziz P. W. for setting aside the order of acquittal of Yar Muhammad, Shah Muhammad and Hakim Qamar‑ul‑Haq and the same is, accordingly, dismissed.
Petition dismissed.
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