' SYED MUHAMMAD FAROOQ SHAH, J.---Appellant above named, being aggrieved by judgment dated 17-3-2010 of learned Additional District and Sessions Judge Tando Adam in S.C. No, 536 of 2001 re-State v. Raja alias Dad Muhammad alias Dodo of PS Tando Adam, whereby he has been convicted under section 265-H(ii), P.P.C. And sentenced to suffer Rigorous Imprisonment for life under section 460, P.P.C. As Tazir, also directed to pay Rs,2,00,000 as compensation under section 544-A, Cr.P.C. To legal heirs of deceased, appellant preferred the captioned appeal with the prayer to set aside the said judgment of conviction on the facts and grounds set out in the memo of appeal.
2. Relevant facts as narrated in the F.I.R. Lodged at Tando Adam Police Station by complainant Muhammad Ali Ansari are that on 4-9-2001 he along with his son Sirajuddin, grand son Muhammad Yamin and brother-in-law of Sirajuddin namely Abdul Rehman Ansari, after having dinner went to sleep. It was about 0300 hours, when they woke up on noise and on electric light saw two persons inside the house, out of them, one was armed with dagger. They further saw that both culprits went out of the house after breaking box and taking away gold ornaments and cash.
Meanwhile, Sirajuddin raised cries and grappled with one of the culprit armed with dagger, who caused dagger blow to Sirajuddin on left side of his abdomen, while the other culprit armed with pistol fired shot at Sirajuddin, which hit him on right side of his abdomen, resultantly he fell down and accused runaway from the house. Thereafter, complainant brought injured at police station, got letter for his treatment and examination and came to Taluka Hospital Tando Adam wherefrom he was referred to Liaquat Medical University Hospital Hyderabad. Leaving the witnesses with Injured, the complainant proceeded at police station and lodged the F.I.R.
3. During investigation, appellant was arrested and he was identified by the complainant. Charge was framed against appellant/ accused at Exh.6 to which he pleaded not guilty and claimed trial.
4. To substantiate its assertion, prosecution examined P.W.1 Dr. Muhammad Ashraf Leghari as Exh.10, who produced police letter at Exh.11, Provisional Medical Certificate of injured Sirajuddin at Exh.12 and letter referring the injured at Exh.13; P.W.2 complainant Muhammad Ali at Exh.15, who produced F.I.R. At Exh.16; P.W.3 Muhammad Yamin at Exh.17; P.W.4 Dr. Abdul Samad Senior Medical Officer Exh.19, who produced post mortem report of deceased at Exh.20; P.W.5, Imdad Ali Tapedar at Exh.22, who produced sketch of place of occurrence at Exh.23; P.W.6 Abdul Razzak Ansari at Exh.25, who produced memo of inspection of dead body at Exh.26, inquest report at Exh.27, Receipt of dead body at Exh.28, memo of identification parade at Exh.29. He further produced Photostat copy of his NIC and NIC of Sultan at Exhs.30 and 31 respectively; P.W.7 Hafiz Muhammad Tayaz Ansari at Exh.32, who produced memo of inspection of place of occurrence at Exh.33, mashirnamas of injuries of deceased at Exh.34, memo of arrest of accused at Exh.35, who produced clothes of deceased as Article 1 and he also produced ten notes of Rs,1000 and two notes each of Rs,500 as Articles 2 to 13, one empty and two small pieces of bullets as Article 14; P.W.8, A.S.-I. Safiullah Bullo at Exh.39, who produced statement of complainant under section 162, Cr.P.C. At Exh.39-A, chemical examiner report at Exh.39-B and thereafter closed its side vide statement Exh.40. In pursuance of the order of Federal Shariat Court dated 8-10-2008; Mr. Abdul Hayee Memon Civil Judge and Judicial Magistrate Tando Adam was also examined as P.W.9 at Exh . 44 .
5. The statement of accused. Raja alias Dad Muhammad was recorded under section 342, Cr.P.C, in which he pleaded not guilty and claimed his false implication in the case. He stated that his actual name is Niaz Hussain. He produced Photostat copy of NIC No,453-80-149901 at Exh.46/A. He further produced Photostat of Mark Sheet of Class-IX and X, Ptimary School leaving certificate, testimonial certificate and Domicile Certificate at Exhs. B to E respectively. He further stated that he had a shop in the same. Muhallah where complainant was residing who asked him to close/stop his 'Carom Board game in the shop and on his refusal they were annoyed with him. He was arrested by police and was shown to complainant inside the lockup and thereafter was produced before the Magistrate on the next day. He also examined Ali Khan and Adam Khan in his defence at Exh.47 and 48 respectively
6. The learned trial Court after examining the prosecution witnesses convicted4and sentenced the appellant mentioned hereinabove and consequently, the appellant has filed the captioned appeal.
7. Arguments advanced by learned counsel for the appellant and D.P.G. Are considered and record has also been perused.
8. Ms. Shabana Kousar Jatoi, representing the appellant argued that the appellant was arrested on 19-2-2001 and his identification parade was held on 26-2-2001 i,e, after seven days before P.W.
Abdul Hai Memon Civil Judge and Judicial Magistrate who did not put any certificate at the end of memo of identification. In his cross examination, learned Magistrate admitted that parentage of dummies have not been mentioned in the memo of identification parade and that it was not in his knowledge that both mashirs, were closely related to complainant, neither he inquired regarding relationship of mashirs from complainant. He has also stated that date of arrest of accused was not informed to him at the time of holding identification parade and he do not remember the exact time when complainant came in court premises for identification parade. Further stated that, he do not remember if accused was with open face when he was produced before him.
9. The learned counsel contended that in the present case the evidence against the appellant is only identification parade, which is to be examined cautiously and strictly in accordance with law that as to whether it was conducted after completing all legal formalities as it is settled principle of law that role of accused in identification test should be described by the witnesses. Learned counsel submitted that it is an admitted fact that the complainant and witnesses did not mention name and role of the appellant/accused in their statement recorded by the Magistrate after identification parade. His features, descriptions and built has not been mentioned in the memo of identification test, therefore, the case is doubtful as held in the case of Muhammad Shoukat and others v. The State (2012 YLR 1841), the learned Division Bench of this Court referred many rulings already available on the subject.
10. Admittedly, there is delay of seven (7) days of identification parade, after arrest of appellant. In the case of Shafat Mehmood and others v. The State (2011 SCM R 537), the Hon'ble Supreme Court has observed that:-- "Identification was held after 7 days of arrest of accused. Said delay created a lot of doubts regarding identification parade. Statements of P.Ws./eye-witnesses were also not consistent with each other. Courts below had erred in law while giving finding of guilt against appellant. Contents of F.I.R were also not in consonance with medical evidence."
11. In the case of Khadim Hussain v. The State (1985 SCM R 721), the Hon'ble Supreme Court observed as under:-- "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown ILR 51 Lah. 396, in following words: "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person.
The principal evidence of identification is the evidence of a witness given in the Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."
12. In the case of Mushtaq Ali Kalhoro v. The State (1996 PCr.LJ 1315), a Division Bench of this Court, held as under:- "The rule laid down in the case of Muhammad Sadiq v. Muhammad Sarwar 1979 SCM R 214, shows that irrespective of the fact that the witness had no animosity to falsely implicate an accused; it has to be seen that the evidence of the witness is inherently probable and whether it is consistent with the circumstances of the case or not. The three eye-witnesses in this case may have been at the place of incident in this case, but it is doubtful if they had enough opportunity to see the culprits and their features so that they could pick them out in the identification parade held after six months of the incident. We have already held the identification parade itself of no evidentiary value in this case."
13. In Lal Pasand v. The State (PLD 1981 Supreme Court 142), the Hon'ble Supreme Court, has held as under:-- "It is true that the witness said that he had identified theappellant, because he had green eyes and a thin neck, but in this part of the world there are so many people with green eyes and thin necks.
And, further, we do not know whether this explanation of the witness was a form of rationalization after the event, because he had not given any description of the murderer in his statement to the police. But, if the murderer had any physical features which distinguished him from other people whether it be green eyes or a thin neck, it was the witness's duty as a retired police officer to give the description of the assailant whatever it be in his statement to the police and as he did not this cannot but react against the entire prosecution case.This is so obvious that the learned Chief Justice has fallen back on the possibility that the witness was able to identify the appellant, because he must have had the opportunity to see him in the village. With all respect to the learned Chief Justice as the witness was emphatic that he had never seen the murderer except at the murder, the view taken by the learned Chief Justice involves the substitution of evidence but conjecture and we cannot agree with it. However, as far as we can see, the main ground on which the learned Chief Justice bases his finding that Saadullah Khan's opinion was sufficient to prove the appellant's guilt, was the assumption that Saadullah Khan had been able to memorize the appellant's features even though he had seen him for a fleeting moment on 9-8-1973, because he was a trained police officer.With all respect to the learned Chief Justice, powers of observation vary from individual to individual, and though a trained police officer is likely to be more observant than the ordinary man, sometimes, if we may be permitted to say so, country bumpkins are extremely observant, whilst geniuses are proverbially absentminded. Therefore, we are unable to subscribe to the proposition that a police officer has an infallible memory at least in the matter of remembering and identifying the faces of strangers. However, as we do not wish to lay down a wider proposition than is necessary for the decision of this case, we would observe that the position might have been different if the prosecution had led evidence to show that Saadullah Khan was a man with a perfect memory, who had never been wrong in his identification of strangers. But, as there is no such evidence, we do not see how the possibility of an erroneous identification by this witness can be ruled out."
14. Learned counsel much emphasized that the prosecution witnesses including complainant are closely related to each other and the statement of the complainant is contradictory to F.I.R.
Particularly no incriminating articles including the crime weapon and robbed property has been secured by the police.
15. It is an admitted fact that the only evidence available with the prosecution against the appellant/accused was that he was identified by the eye witnesses during identification parade and no other evidence was available on record to connect with the commission of this offence.
Admittedly, unexplained delay of seven days in holding the identification parade after the arrest of accused/appellant had made the same doubtful. Entire prosecution case depends upon the identification of the accused. The identification parade was therefore to be examined cautiously as held in the cases of Waqar Ahmad v. The State (2012 PCr.LJ 170), Shafqat Mehmood and others v.
The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563). In the case of Sabir Ali Apex Court held that "the complainant has not mentioned the name of any of the accused in the F.I.R. And he also did not mention description/features of the accused persons in the F.I.R. It is settled principle of law that it is the duty and obligation of the complainant to give material particulars of the case in the contents of the F.I.R. Without giving details of, incidental matter as per law laid down in Muhammad Hussain's case (1993 SCMR 1614).
16. Suffice to say that the identification test is doubtful and the prosecution has no other evidence against the appellant. No incriminating articles including crime weapons and robbed property has been recovered from the appellant. Consequently, appeal is allowed and the impugned judgment is set aside. The appellant who has already undergone about more than twelve years inside prison, is hereby acquitted from the charge of this case and Superintendent jail is directed to release him forthwith if he is not required in any other case.
' Office is directed to issue release writ forthwith.