' REHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal Appeal No,89 of 2005 and Criminal Revision Application No,18 of 2005 as they arise out of common judgment.
2. The present Appeal and Revision are directed against the judgment dated 31-12-2004 passed by the learned III-Additional Sessions Judge, Karachi West by which the learned Judge convicted the appellants for offence punishable under section 302(b), P.P.C. And sentenced each of them to suffer imprisonment for life.
3. The appellants have challenged their conviction and sentence whereas Mst. Hamida Bibi, mother of the deceased persons has challenged the sentence and requested for its enhancement.
4. Brief facts giving rise to the present appeal and revision are that on 12-4-2001 at about 1-00 or 1- 30 a.m. In the night the complainant Meharban and his mother Mst. Hamida Bibi were sleeping in a room of the house situated in Katchi Abadi Gulshan Ghazi Colony, Saeedabad, Karachi whereas his two brothers namely deceased Abdul Rehman, Imran and his sister injured Nasreen were sleeping in the courtyard of the house. The complainant woke up on the sound of fire-arm report, therefore, his mother asked him to see what had happened outside the room. Therefore, he came out from the room and saw the appellants armed with pistols sitting outside the kitchen. On seeing him the appellants ran away from the house. He raised cries on which his father Muhammad Ramzan, who was sleeping in a truck came and knocked the door, therefore, he opened the same. He informed his father that the appellant Sher Khan along with his sons were running away, therefore, his father chased the appellants but they ran away as his father fell down on the ground. In the meanwhile Mohallah people came there. Thereafter he went to his brothers Abdul Rahman and Imran and saw them lying in pool of blood. He brother Abdul Rahman had already died, his sister and his brother Imran were lying injured, therefore he took them to hospital for treatment. The police arrived in the hospital and his statement, under section 154, Cr.P.C. Was recorded at about 7-00 a.m. In the morning. Subsequently, the injured Imran also died in the hospital. Mst. Nasreen was unconscious and was sent to operation theatre. At about 8-00 p.m. The police arrested the appellants but nothing was secured from their possession. The police after usual investigation, challaned the appellants in the Court where they were tried and convicted as mentioned above under the impugned judgment.
5. We have heard the Advocates for the appellant, A.A-G. For the State. Mst. Hamida Bibi, applicant in Criminal Revision and perused the record of this case very carefully.
6. The learned Advocate for the appellants has stated that case of the prosecution rests upon ocular testimony only as there is no recovery of pistol or Ballistic Expert report. He has further stated that the incident took place during night time but the prosecution did not show the source of light on which the P. Ws. Saw the incident though the P.W.4 Muhammad Ramzan deposed that he saw the appellant on moonlight from a distance of half furlong, therefore, the case of the prosecution is highly doubtful against the appellants. He has further stated that the complainant lodged the F.I.R.
Against the appellants after due consultation as initially nobody knew about the names of culprits as clear from the statement of private witnesses and Investigating Officer.
7. Conversely, the learned A.A-G. Has stated that the source of light has been mentioned by the witnesses, however, when they have stated that they saw the appellants and identified them, then, their statement should be believed. He has further stated that the case rests upon only ocular testimony which is confidence-inspiring, as such, it is sufficient to convict the appellants. Mst, Hamida Bibi has stated that the case has been proved against the appellants therefore the sentence may be enhanced.
8. We have given due consideration to the arguments; gone through the evidence with the assistance of learned Advocate for the appellants and found that the prosecution case rests upon ocular testimony only, which consists of 4 witnesses viz. P.W.1 complainant Meharban, P.W. 2 injured Mst. Nasreen, P.W.3 Mst. Hamida Bibi and P.W.4 Muhammad Ramzan. The evidence of complainant reveals that when he came out from the room he saw the appellants armed with pistols sitting outside the kitchen and then they ran away. The evidence of P.W.3 Mst. Hamida Bibi shows that when she came out from the room where she was sleeping. She saw the appellants armed with pistols running away from the place of incident. The evidence of P.W.4 Muhammad Ramzan reveals that when he reached at the place of incident on the firearm reports he found three persons running away at a distance of about half furlong away from him and he identified them on moonlight. Whereas P.W.2 Mst. Nasreen who is injured in the case deposed, that when she woke up on noise she woke up his brother Abdul Rahman and then one of the accused fired at him other accused fired at his brother Imran and appellant Sher Muhammad fired at her and then she became unconscious.
9. From the evidence of all these witnesses it is clear that they did not disclose the source of light on which they identified the appellants except P.W.4. Admittedly, the incident took place in a house which was situated in Katchi Abadi near hills, therefore, the availability of electricity light in the house of the complainant was an essential factor which was required to have been proved by the prosecution through a positive evidence, particularly when the P. W.4 stated that he identified the appellants on moonlight from a distance of half furlong. The silence of the witnesses on the point of source of light is very glaring, alarming and without proof of such fact the mistaking of identity of the culprits at the time and place of incident cannot be ruled out. Thus this fact has materially and adversely affected the prosecution case.
10. In the case of Muhammad Arshad v. State PLD 1995 SC 475 at page 480 it was observed as under:-- "15. The principle to be extracted from the decided case thus is that the evidence of visual identification is one of the categories of suspect evidence and that ordinarily it is not safe to convict on the basis of such evidence without corroboration. Indeed in exceptional circumstances, that is, where the evidence of visual identification is of exceptionally good quality, such as, where the offender was known to the witness, there was sufficient light, the witness had an unobstructed view of the offender and there was a dialogue between the witness and the offender, the evidence may be acted upon."
11. A similar view was taken in another case of Sajjad Hussain v. State 1997 SCM R 174. In the present case there are no exceptional circumstances to take out the case from the general rule of suspect evidence of visual identification as the visual identification was not of exceptionally good quality because there was no sufficient light and that there was no dialogue between the witnesses and the offender, therefore, the said evidence cannot be acted upon.
' In the case of Bashir v. State 1995 SCM R 276 at page 282, it has been observed as under:-- "14. Despite these observations we feel that the rule of prudence does require independent corroboration of the statement of the eyewitnesses qua each accused as an abundant caution, because the evidence of identity based on personal impression has to be approached with considerable caution specially when the whole case hinges upon such evidence. The testimony of sense cannot be implicitly relied upon even when the veracity of the witnesses cannot be challenged. Chances of error in identification become greatly increased when the identification is based on glimpse in the confusion and pandemonium of the moment at the night even though the night is moonlit or the place of occurrence is fitted with electric bulb."
12. Apart from the above facts the complainant disclosed that when he came out from the room he found the appellants sitting outside the kitchen. This fact is not appealing to the common sense as there was no reason with the culprits to sit outside the kitchen after commission of the offence.
Their natural conduct would have been to run away from the place of incident. The time of the incident selected by the culprits clearly demonstrates the facts that the culprits did not want their identity to be found hence the stand taken by P.W. Meharban appears to be highly doubtful. The statement of P.W.3 that she saw the appellants running away from the place of incident clearly demonstrates that she had no ample opportunity to see the faces of the culprits as the culprits were not coming towards her side but they were going towards the other side of the witness. In such a situation it was highly improbable for the witness to have seen the faces of the culprits. The evidence of P W.4 Muhammad Ramzan appears to be also highly doubtful as it was not possible for a witness to identify the culprits from a distance of half furlong on moonlight.
13. As regards the P.W.2 her presence at the place of incident could not be doubted as she was the injured witness but the fact is whether the witness spoke truth or otherwise. Her evidence shows that first she woke up his brother Imran and then she saw the incident. The sequence given by the witness about the incident is such where the incident must have completed within few seconds in confusion and pandemonium of moment. The nature of the injuries received on the person of the injured and non-disclosing the source of light clearly shows that the witnesses had momentary glimpse of the culprits. Particularly, the P.W.2 did not disclose the names of culprits who were responsible for causing injuries to her two brothers, as she stated that one culprit fired at Imran and another culprit fired at Abdul Rahman probably for the reason that she could not identify them. Furthermore, it is surprising to note that the name of this witness was not shown in the list of witnesses as the police did not record her statement though she was discharged from the hospital on 24-4-2001. The Investigating Officer failed to explain the cause for not recording the statement of witness. The learned Advocate for the appellants has taken the plea that she was not in her proper senses, therefore, her statement was not recorded because of her injury on her head and was treated by Neuro Surgeon. He has further stated that, due to such state of mind of the witness her evidence cannot be safely relied upon. It is pointed out that in the cross-examination she admitted that she did not give the names of the culprits because she was unable to speak properly nor she gave the names of the culprits to her brother, father and P.W. Meharban, the complainant.
Nevertheless, she was discharged on 24th thereafter she could have given the names of culprits but she did not do so nor the police officer recorded her statement for the reasons best known to him.
14. Apart from the above facts it is pointed out that the incident took place at about 1-30 a.m. In the night. The police reached in the hospital immediately after receiving the information where the police prepared inquest report of deed body of Abdul Rehman. One of the signatories of the inquest report was the complainant. Subsequently, deceased Imran died at about 5-00 a.m. The police prepared the inquest report which was also signed by complainant Meharban as one of the witnesses. The defence counsel inquired from Investigating Officer that at the time of preparation of inquest report of deceased Imran the names of the culprits were known t6 him to which he replied in affirmative. He further made clarification that after recording the F.I.R. He came to know about the names of the culprits. This clearly demonstrates the fact that till recording the statement of the complainant the Investigating Officer was unaware of the names of the culprits though the complainant met with the Investigating Officer in between the said period. It is natural conduct of a police officer and eyewitnesses to have first informed the incident to the police officer by disclosing the names of the culprits if they knew them. Hence non-disclosure of the names of the culprits to the police officer in the hospital further supports the plea of the appellant that the culprits were unknown, incident was unwitnessed by the P.Ws. And the appellants were involved after due consultations and deliberations at 7-00 a.m. In the morning when the statement of complainant was recorded. This fact has further been supported by the witnesses P.W.7 Hakim Khan and P.W.12 Fazal-urRehman who were the neighbours of the complainant and reached at the place of incident. They did not state that the complainant or any of the witnesses informed them about the names of the culprits at the place of incident though they had taken the deceased to the hospital.
The evidence of P.W.8 Muhammad Ashfaq who is also one of the neighbours is also to the same effect.
15. Apart from P.W.8 none of the neighbouring witness disclosed the presence of the complainant Muhammad Ramzan or Mst. Hamida Bibi at the place of incident. About the presence of the complainant and witnesses the case of the appellant is that they were not present in the house where the incident took place but they were present in the house of aunt of the complainant as she had died few days back. In order to support such plea the defence counsel inquired from the complainant that about 3 or 4 days prior to incident his aunt had died to which he replied in affirmative and then he was inquired that because of the said reason they were present in her house on the night of incident to which he replied in affirmative. Thus the presence of the complainant Mst. Hamida Bibi and Muhammad Raman at the place of incident was excluded as per statement of complainant. This has also supported the plea of the appellants that the incident was not witnessed by these witnesses.
16. After considering the material available on the record we are of the considered view that the ocular testimony is not worth relying with regard to identity of the appellants at the time and place of incident. A doubt has been created with regard to the identity of appellant therefore, mistaken identity cannot be ruled out, hence the case of the prosecution is highly doubtful against the appellants.
17. Above are the reasons of our short order dated 13-12-2006 by which we had allowed the appeal and dismissed the Revision Application.