1. DORAB PATEL, J.-Mahmood, tire owner of a shop known as Tee Vee Traders of Station Road, Hyderabad, was shot dead in his shop at about 2-30 P.m. On 13-3-1973 and a tape-recorder was also stolen from the shop. Therefore, the appellants were tried under section 302/34, P. P. C and section 302/34, P. P. C. For the murder of Mahmood and for the robbery. And, in order to prove its case; the prosecution examined seven persons as eye-witnesses of the occurrence. The prosecution also relied on the recovery of the pistol used for killing Mahmood and the tape- recorder alleged to have been stolen from his shop. However, the pistol was produced not by the appellant. Abdul Sattar, who had, according to the prosecution shot dead the deceased, but by the appellant Yaqoob. And, on the other hand, the tape-recorder alleged to have been stolen by the appellant, Yaqoob, was produced by the appellant, Abdul Sattar.
2. The learned Additional Sessions Judge, who bad the advantage of watching the demeanour of the recovery witnesses, was not impressed by their evidence and he held that the recoveries had been planted. He, however, held that the seven eye-witnesses had fully implicated the appellants, even though one of them Saleem had not. Therefore, by his judgment dated 22-3-1977, he convicted both the appellants under, section 302/34, P. P. C. And whilst he sentenced Abdul Sattar to death, he gave the benefit of the lesser sentence to Yaqoob. Fines were also imposed: Both the appellants were also convicted under section 392/34, P. P. C. And sentenced to seven years' R. I.
3. The appellants challenged their convictions in appeals in the Sind High Court, which w- s heard with the reference from the Sessions. Court. The main contention of both the appellants was that it was a case of erroneous identification, and they had been falsely implicated under Police pressure on account of the publicity-which had been given by the newspapers to the murder. In this connection, they had relied on the discrepancies in the evidence of the eye-witnessed about the description of the assailants and at the request of their learned counsel, they had also been produced in Court to prove that their appearance and build completely falsified the evidence of the eye-witnesses, 'Further the appellant, Yaqoob relied on the fact that even according to the so- called eye-witnesses, the appellant, Abdul Sattar, had suddenly produced a pistol from the fold of his shalwar, therefore, his submission was that in any event, the prosecution had failed to prove that he shared any common intention with Abdul Sattar to use violence, much less to kill any one.
4. Finally, the appellants relied on the finding of the Sessions Court that the recoveries had been planted.
5. The learned Judges, who heard the appeals, agreed with the finding of the Sessions Court that the recoveries had been planted, therefore, the question before them was whether reliance could be placed on the evidence of identification, because admittedly the appellants were complete strangers to all the witnesses examined by the prosecution as eye-witnesses. Now, it is a trite observation that evidence of identification of strangers needs to be scrutinized minutely, because of the obvious possibility of an erroneous identification by the eye-witnesses therefore the appellants relied on the fact that three out of the seven so-called eye witnesses were the brothers of the deceased, and in this context, their further submission was that the evidence of identification was unreliable because of the discrepancies in the description of the assailants by the eye- witnesses. They also drew the attention of the learned Judges to the erroneous assumption of the Sessions Court that all the eye-witnesses had supported the prosecution case. As a matter of fact, Mohammad Saleem who worked in the shop of the deceased, had admitted that he was not able to identify the culprits, because he had only seen them for a fleeting moment. After noting Mohammad Saleem's admission, the learned Judges went on to hold that the d screpancies in the prosecution evidence on which the appellants relied were not material, because the other six eye- witnesses were not uneducated and because they were disinterested witnesses. The learned Judges were also of the view, presumably on the basis of their recollection of the appearance of the appellants, that the appearance of the appellants was not inconsistent with the description of the assailants given by the six eye-witnesses. However, as even according to the eye witnesses, Abdul Sattar had suddenly produced a pistol from the fold of his shalwar and fired at the deceased, the learned Judges accepted the contention of the appellant. Yaqoob, that there was no common intention between him and the other appellant to resort to violence in the commission of theft, much less to commit any murder, Therefore, by their judgment dated 17-9-1978, they confirmed the sentence of death against the appellant, Abdul Sattar, but allowed Yaqoob's appeal against his conviction for murder and set aside the conviction of both the appellants under section 392, P. P. C. Instead they convicted them under rection 380/34, P. P. C. And reduced the sentence on this count to four years' R. I.
6. The appellants filed a petition for leave against this judgment and leave was granted in order to examine their plea that it was a case of erroneous identification.
7. At the outset we have to observe that having examined the evidence, we are satisfied that both the Courts below have rightly rejected the evidence of the recoveries, therefore, the only question before ins is whether it would be safe to rely on the ocular evidence, because admittedly the appellants were complete strangers to the prosecution witnesses. And, as we are sitting in this High Court Building at Karachi, we cannot do better than quote the wise observation made by a Judge in this very building in Ramzan and others v. Emperor (AIR 1929 Sind 149.). The learned Judge observed :- "The recognition of a dacoit or other offender by a person who has not previously seen him is, I think, a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases."
8. We agree with these observations, and, therefore, evidence of the identification a of strangers must always be scrutinized very carefully. And, this means that the two Courts erred in ignoring the discrepancies in the description of the assailants by the witnesses on the ground that the witnesses were educated or disinterested witnesses.
9. We now turn to the ocular evidence, and as we observed, Mohammad Saleem was not able to identify the culprits, because in his own words "the time was so short:" But, just as the time was "so short" for this witness, it was equally short for the witness Shamsuddin. This witness worked in one of the adjoining shops and he said that on hearing the sound of shots; he had come out of the shop and seen the appellants running away. As he only saw the assailants running away, it is obvious that he too could not have had sufficient time to observe their features. Unfortunately, this circum- -stance escaped the attention of the two Courts, but we are satisfied that it would not be safe to rely on this witness's evidence.
10. We now turn to the evidence of Amir Ali. This witness was the owner of a shop a few yards from that of the deceased. He said that the appellants had come to his shop on the day of the occurrence to see tape-recorders and at their request, he had taken them-himself to the shop of the deceased.
11. He had then returned to his shop, but on hearing the sound of firing, he came out and saw two persons running away from tile deceased---s shop One, of whom he was armed with a pistol, whilst the other was carrying a tape-recorder, and according to the witness these two persons were the persons whom he had taken to the shop of the deceased. Although the witness had identified the appellant at the identification parade, the evidence of this witness is difficult to believe, because his name is not to be found in the F. I. R. Which was lodged by Abdul Ghani, the brother of the deceased, a circumstance which escaped the attention of the Courts below. But, this was not the only circumstance which escaped the attention of the Courts below. The brother of the deceased Haroon had also stated that the appellants had come to his shop for the purchase of a tape-recorder and as he could not supply them the tape-recorder, which they wanted, he had dent them -to the shop of the deceased. As the brother of the deceased thus claims to have sent the appellants to the shop of the deceased, it is difficult to believe Amir Ali's claim that it was he who bad taken the appellants to the shop of the deceased, the moreso, as Abdul Ghani, the brother of the deceased (who claims to have been with his brother the deceased, when the appellants came in) does not support Amir Ali's evidence. And, on the contrary, Abdul Ghanisaid that it was their brother Haroon, who had sent the appellants to the shop of the deceased. In the circumstances discussed, we are satisfied that this witness was not a witness of truth and no reliance can be placed on his evidence.
12. We now turn to the evidence of the brothers of the deceased. The brothers examined were Abdul Ghani, Haroon (to whom we referred earlier) and Dr. Farooque. And, we would take Haroon's evidence first, because this witness does not claim to have seen the occurrence. But, as we pointed out he said that the appellants had first come to his shop and that he had sent them to his brother's shop, which was only forty paces away from his own shop. Then, according to Haroon, about half an hour later "I learnt at my shop that two boys had killed my brother Mahmood at his own shop. I, therefore, went running to the shop of Mahmood." Both the Courts we highly impressed by the evidence of this witness, but, in the first place, only claims to have seen the appellants. He was not a witness of the murder. Secondly, he had come to know of his brother's murder about half an hour after the murder. But, he admitted that his shop was only forty paces away from that of his brother Mahmood, the deceased. And, on the other hand, the brother Abdul Ghani said in his evidence that Mahmood had sent his servant, Taufiq, "to- bring Haroon" before the assailants had fired their first shot. As Haroon's shop was only forty paces away, it is absolutely impossible to believe that news of the murder reached him after half an hour and it is also impossible to believe his statement evidence that "after about half an hour I learnt at my shop that two boys had killed my brother at his own shop." But, this casts great doubt on his claim that the appellant had come to his shop immediately before they went to Mahmood's shop, therefore, it would not be safe to place any reliance on this witness's evidence.
13. We now turn to Dr. Farooq's evidence and we would recall here that he plea of the appellants was that this witness had falsely claimed to have been them. The learned Judges have not only rejected this plea, but have also placed great reliance on the evidence of this witness therefore, it is necessary to examine it in some details. The witness claimed to have dropped in at Mahmood's shop shortly after the appellants arrived there and he said that he had left before the occurrence.
14. He, however, said that he had chatted with the appellants for about five to ten minutes and if this he is true, the Court were justified in holding that the witness had sufficient opportunity to identify the assailants. Now, according to the appellants, this plea was not true, because Mahmood's other brother Abdul Ghani had also claimed to have dropped in at the shop at the right moment and according to them, the long arm of coincidence could not be so long. Now, if the matter had rested here, the question whether the evidence of the witness was fit to be relied upon would have been a question solely of they appreciation of evidence. But, there were other discrepancies in the witnesses evidence, crucial to his claim to have identified the assailants, which were ignored by both the Courts. Therefore; we now turn to these discrepancies.
15. In his evidence in the Sessions Court, Dr. Farooq said that the height of the appellants was 5'-6' and 5'-7" and the learned Judges appear to have been highly impressed by the witness's evidence because his assessm ent of the height of the appellants coincided with their own assessment.
16. However, at Mr. Junejo's request, we had directed the appellants to be present as big case was that the appellants were 5'-4' and 5'-3' tall, therefore, the appellant Abdul Sattar was produced by the jail authorities on the gist January, 1981 and according to the note recorded by us, his height was 5'---4". Now then did the learned Judges reached the conclusion that the height of the appellant.
17. Abdul Sattar, whom they had seen was 5'-7'. Unfortunately, the learned Judges did not keep any record of the height and features of the appellant, therefore, it is obvious that the view taken by them was based on an error in their recollection. And, as the appellant, Abdul Sattar was 3" shorter than the estimate given by Dr. Farooq, this discrepancy raises the question whether it would be safe to rely on this witness's identification of the assailants.
18. However, a much more disturbing circumstance is that the appellant. Abdul Sattar, was 21 years old at the time of the occurrence, whilst the other appellant was 24 years old. Yet in his section 164, Cr. P. C. Statement, Dr. Farooq had described the assailants as "young boys". As the appellants, were obviously not young boys, this discrepancy casts great doubt on the witness's claim to have seen the assailants. But the leaned Judges brushed aside this objection with the observation "it is common knowledge that even young men are often called boys and in the present case appellant Abdul Sattar at the time of incident was about 21 years while Yaqoob Ali was 24 years". Mr. Hayat Junejo submitted that these observations were based on conjecture and not evidence and with due respect to the learned Judges, we are not able to agree with their observations. In the first place, they ignored the fact that the witness was a doctor of Medicine and was expected to know the difference between a, boy and a young man, the moreso, as his evidence was recorded in English. Secondly, and this is much more important, it escaped the attention of the learned Judges that the witness had referred in his earlier statement to the assailants not just as boys, but so "young boys". But, as even an illiterate person would not confuse adults with young boys if he has really seen them, this discrepancy casts very great doubt on the witness's claim to have seen the appellants.
19. Finally, another discrepancy is in the witness's evidence, to which Mr. Hayat Junejo referred us and which was ignored by the learned Judges, was the following statement made by the witness in his cross-examination:- "I do not remember to have stated before the lower Court that man in Nasi clothes' was about six feet and the other man was about six feet."
20. The man ---in Nasi clothes" is the appellant Abdul Sattar, and his height was only 5--- ---4------ The other appellant was not present before us on 21-1-1981, but according to all the witnesses, he was slightly shorter than Abdul Sattar. However, we will assume that he was also 5'-4-- tall. Now, no one who had seen a person 5'-4-- tall can possibly confuse him with a person 6' tall. Therefore, as the witness was a highly educated and, his earlier description of the assailant as being 6' tall can lead to only one inference, and that is that he had never seen the appellants until the identification parade. There--fore, in the circumstances discussed no reliance whatever can be placed on his evidence.
21. The only other witnesses relied upon by the prosecution are Abdul Ghani, the brother of the deceased, and Taufiq, a servant of the deceased. Now,, apart from the fact that Taufiq was only about eleven years old at the time of the occurrence, he too had described Abdul Sattar as tall, and in his lower Court statement, he had described the assailants as "young boys." Therefore, it would appear to be a clear case of erroneous identification. It is true that this witness described the assailants in his evidence as men, not as young boys, but this was because he had an opportunity of seeing the assailants in the dock, therefore, the attempt of the witness to improve on his evidence only reacts against his veracity. Thirdly, other witnesses also had described the assailants as boys or young boys in their section 164, Cr. P. C. Statements, but described thetas as men in their evidence in the Sessions Court, therefore, whatever be the inference to be drawn from this attempt to improve on the prosecution case, it is clear that all the witnesses whether educated or not were aware of the distinction between young men and boys. And, the assumption of the learned Judges that young men "are often called boys" is against the evidence.
22. Turning now to Abdul Ghani's evidence, although he did not describe the assailants as tall, he had stated in his F.I. R. That the assailant, who had fired the pistol was 5'-7-- tall. Now, if a person can confuse an assailant 5'-7' in height with a person 5'-4" in height, it cannot but raise doubts about his powers of observation. Additionally, Mr. Hayat Junejo referred us to other discrepancies in his evidence, but we would only observe here that the witness could not recollect whether the appellant Yaqoob had a moustaches at the time of the occurrence. In view of these and other discrepancies in his evidence, it would be hazardous to base a conviction on is his evidence. But, as there is no other evidence, Mr. Rashid Qureshi rightly conceded that he could not defend the conviction of the appellants, and we are satisfied that the- prosecution has failed to prove the guilt of the appellants.
23. We are aware that a foul murder was committed, but crime will only increase if the real culprits escape and innocent men are punished instead say this, because it is clear from the evidence that the real culprits have escaped And, in this connection we would repeat here that it was not rely Dr. Farooq and Abdul Gliani, who had said that the assailants were and 5"-7" tall. That was the estimate given by the other eye- nesses also of the height of the assailants. Additionally, except Abdul Ghani and Shamsuddin all the other witnesses had, described the assailants in their earlier statements, as boys or young boys. Therefore, it is clear that the real assailants were taller and younger than the appellants. And, it is unfortunate that they have escaped.
24. In the result, the appeal is allowed. We set aside the conviction of the appellants and Abdul Sattar shall be released forthwith unless required on any other charge. As Yaqoob was granted bail, by this Court, when leave was granted, his bail bond shall be discharged.