FAKHRUDDIN G. EBRAHIM, J.-This appeal calls into question the concurrent finding of guilt pronounced against the appellants by the trial Court as well as the High Court in appeal, that they had committed the murder of deceased Muhammad Arif. For this offence the appellant Muhammad Afzal has been awarded capital punishment while the appellant Muhammad Amin was sentenced to imprisonment fox life.
2. The deceased Muhammad Arif and his companion P. W. Rahim Khan, the complainant had, on the fateful day, the 10th of February, 1973 come to Multan from village Sabzkot for making purchases. The deceased purchased one-band transistor-radio for Rs. 122 from a shop known as China Radio House for which the cash memo. Was in the name of P. W. Rahim Khan. The other articles purchased were a black chaddar for Rs. 15 two dopattas for Rs. 8 each, one of red colour and the other green and all these articles, together with the cash memo for the purchase of the transistor were put in a plastic bag purchased at the same time. On this plastic bag were embossed the alphabets `PIA'. At the end of the day about 7 p. m. They left Bazaar and went to meet a friend Allah Yar and not finding him in his house, proceeded towards Adda Larian, Khanewal to return to their village. When these two persons had crossed the Abadi and came near the graveyard, two persons accused them and after exchange of greetings, they asked whether they were interested in spending the night with a woman in which case they could select a woman and then settle the money but both of them refused. However, those persons walked for some distance trying to persuade them and on their refusal, one of them caught hold of P. W. Rahim Khan and the other attempted to snatch the bag but did not succeed as the deceased held it tightly upon which the person holding P. W. Rahim Khan instigated the other to stab the deceased and the other person gave two knife blows one on the back and the other on the left shoulder as a result of which the deceased lost his grip on the bag and the one who gave stab blows snatched it from him and then both of them made good their escape.
3. P. W. Rahim Khan and the deceased while being belaboured raised out cries which attracted some persons to the spot among whom was also Allah Yar. A little later, the deceased succumbed to his injuries and P. W. Rahim Khan leaving the others there went to the Police Station, Purani Kotwali, Multan and lodged the report at 8 p. m. Giving out the above facts including the purchase of the radio and other articles which articles were placed in a plastic bag along with the receipt for the purchase of the radio, the details and description of the assailants and further stating that the transistor was lying on the spot. The Police investigation that followed forthwith secured blood- stained earth and transistor-radio from the wardat and some currency notes from the personal clothing of the deceased, which were blood-stained. The two appellants Muhammad Arif and Muhammad Amin were arrested on 16-2-1973. The appellant Muhammad Amin led to the recovery of a knife from his residential Kotha on which the blood was found to be dis--integrated. The appellant Muhammad Afzal led to the recovery of a plastic bag from a grave situated in Shah Shamas Graveyard which was found to contain a chaddar, two dopattas and the cash memo issued for the purchase of the transistor. These articles were taken into possession.
4. The two appellants were identified by P. W. Rahim Khan in an identification parade held on 17-2- 1973 in the District Jail, Multan in the presence of P. W. Imdad Ali, First Class Magistrate. The appellants however objected to the test on the ground that they were in the Police lock-up since 12-2-1973 and they were shown to P. W. Rahim Khan and other witnesses almost every day which objection was recorded in the report. Earlier complaint was also made in writing by Mo. Gamun, the mother of` the appellant Muhammad Amin vide her application dated 15-2-1973 before the Ilaqa Magistrate. In this connection, the plea of Muhammad Amin recorded under section 342, Cr. P. C.
Would also be relevant which was as under ;- "On 13th February, 1973, myself and Muhammad Afzal were made to join investigation in this case and the Police wanted to challan us. My mother, Mst. Gamun, applied to the Ilaqa Magistrate on 15th February, 1973, through a written application that we two accused were being shown to the witnesses and false recoveries were being made against us. On 15th February, 1973, the Magistrate ordered that the Police should report about that application. Police had already in their possession myself and the co-accused. They made false recoveries against us and produced us before Syed Sabir Hussain, Magistrate Ilaqa, on 16th February, 1973, by planting the knife against myself and certain clothes against the co-accused. During investigation, the Police had shown myself and co- accused to Rahim Khan, P. W., who remained with us at the Police Station Old Kotwali, on the 13th and saw us every day till 16th. At the time of identification parade, we raised this very objection before Mr. Imdad Ali, Magistrate, that we had been shown to the witness and the identification parade was false."
5. The trial Court believed the evidence of P. W. Rahim Khan. As to the appellants' grievance that they were shown to him before the holding of "the identification parade, the trial Court after sifting the evidence held :- ---I see no reason whatsoever to discard the evidence of P. W.
12. He was with the deceased when the occurrence took place. He identified the accused in the identification parade. He is not shown to have enmity with the accused. The accused also did not mention the name of Rahim Khan P. W.
When they raised objection during identification parade that they were being shown to the P. Ws.
By the Police. The evidence of P. W. 12 Rahim Khan is not challenged on any other ground."
6. However, the trial Court disbelieved the version of P. W. Rahim Khan in regard to the snatching of the bag from the deceased and acquitted the appellants on the charge of robbery as it was of the opinion that the articles found in the bag had no distinguishing marks and were easily available in market. The trial Court also rejected the evidence of recovery of knife as it was not found to be blood-stained. However, the trial Court believed the evidence of P. W. Muhammad Nawaz in regard to the extra-judicial confession made to hint by both the appellants. The trial Court like the High Court found in the evidence the corroboration of the eye-witness account given by P. W. Rahim Khan.
7. On appeal and reference, the High Court rejected the aforesaid plea of the appellants as to their identity and in holding so, it held that :- "To support his contention, he relied on the application Exh. D. A. Made by the mother of Muhammad Amin appellant before a Magistrate, First Class, Multan, the evidence of Ahmad Yar S. I.
(P. W. 14), Saadat Ali (D. W. 3) and Mst. Gamun (D. W. 14).In the application (Exh. D. A.) it was stated that Muhammad Amin appellant was arrested on 15th February, 1973, and as he was being shown to the P. Ws. And bogus recoveries were being arranged, therefore, he may be sent to the District Jail for identification. Saadat Ali (D. W. 3) stated that he scribed this application to the dictation of Mr. Khuda Bakhsh Advocate of Multan. Mst. Gamun stated that she affixed her thumb-impression on this application and an order was passed on it. The said order is Exh. D. A. 1, dated 15-2-1973, by which the learned Magistrate directed the S. H. O., Old Kotwali, Multan, to submit his --' report by 16th February, 1973. On 16th February, 1973, the appellants were produced before the Magistrate. It was contended that the appellants had been arrested much earlier than 16th February, 1973, and Rahim Khan complainant had ample opportunity to see them with the Police. In this case, the appellants were not named in the F. I. R. And the Investigating Officer might have detained them for interrogation before 16th February, 1973, without showing their arrest in black and white but there is nothing on the record to indicate that they were shown to Rahim Khan complainant. Even in the application (Exh. D. A.) it was not mentioned that they had beers shown to the complainant. It was rather requested that the appellants be sent to Jail for identification which means that till the making of the application the applicant was confident that they had not been shown to any witness. At the identification parade the appellants raised the usual objection that they were shown to the P. Ws. At the police station but they too did not specifically name Rahim Khan, a P. W.
In this connection."
8. The High Court unlike the trial Court disbelieved P. W. Muhammad Nawaz as it was in its opinion that he was self-confessed liar as he made, diverging statements before the committing Magistrate and at the trial. The High Court believed the prosecution version in regard to the snatching of the bag from the deceased as this version stood unchallenged and so also its recovery together with its incriminating articles at the behest of appellant Muhammad Afzal. The High Court took into consideration the evidence of knife at the behest of appellant Muhammad Amin as in its view the mere disintegration of blood would not result in the crime weapon losing its evidentiary value. Finally, the High Court was impressed by the evidence of P. W. Rahim Khan who lived in a distant village and had no enmity with the appellants to falsely implicate them on a murder charge. On this finding the High Court affirmed the judgment of the trial Court.
9. Leave to appeal was granted by this Court to consider the question as to whether the Courts below could rely on the identification of the appellants by P. W. Rahim Khan on whose evidence their conviction. Mainly rests.
10. The leave order thus brings immediately into focus the central question in, this case as to the identity of the appellants and whether their identity wars duly established.
11. Mr. Q. M. Salim, the learned counsel for the appellants was at pains to point out that the appellants' defence as to the identity, right from the start was that they were in Police custody from 12-2-1973 when P. W. Rahim Khan and other prosecution witnesses had seen them. In fact, the defence version is that a large number of suspects were taken into custody including the appellants and P. W. Rahim Khan and other prosecution: witness had seen them before the formal identification before a Magistrate, First Class P. W.. Lmdad Ali. The argument, therefore, was that the formal identification lost all its evidentiary value and the appellant's identity, therefore, remained unestablished. I am inclined to agree with the learned counsel, notwithstanding the prosecution case to the contrary, that P. W. Rahim Khan had the occasion to' see the suspects including the appellants in Police custody before he had identified the appellants in the formal identification; prade on 17-2-1973,As the identity of the assailants was not established it was also most likely that Rahim Khan must have been in contact with the S. H. O. And it must, therefore reasonably follow that the S. H. O. Must have shown the suspects to P. W. Rahim Khan for it was he alone who could have pointed them out and it was then that their identifi--cation was established. Thus there is substance in the contention of the learned counsel that the evidence of identification before the Magistrate was of no avail to the prosecution. That, however, is not the end of the matter for as was observed in the case of Muhammad Bashir v. The State (PLD 1958 SC (Pak.) 1) identification test would not be substantive evidence but only corroborative of the evidence given by the witness at the trial. In this case, no identification parade was held before a Magistrate. The witness had identified some of the accused at the identification parade held by the Police which too was defective and was held to be of least evidentiary value for: --- It was held by a Magistrate and no reason was given for not securing the services of a Magistrate, though Larkana is a District Headquarter. Secondly, there were circumstances which reduced the value of this test to almost nothing. Abbas Hyder was arrested practi--cally in continuation of the pursuit and he must have been seen there- after, long before the test by several persons including the witness. The other two accused, no doubt, were arrested at night but, owing to the sensation the incident must have created, the possibility of those accused having been seen by the witnesses before parade cannot reasonably be excluded. Indeed, it was stated by Karim Bakhsh Chaukidar before the Committing Magistrate that he left the Police station at 1 a. m. That night and by that time Bashir Alam and Inayat Ullah had been arrested. At the trial he stated that he was again called to the Police station next morning at breakfast-time and that Dhani Bakhsh cashier and Urs tongawala were also similarly called. Identification at a test held in the above conditions, even if it was supervised by a Magistrate, could be of little or no value. I may note here, since the question has been touched upon in the judgment under appeal, that the burden of the decision of the Federal Court in the case of Ibrahim Bhak is that proof of identification before the Police, while admissible is of but little value as evidence if there is no explanation for failure to call an available Magistrate. Consequently, it is apparent, in view of what has already been said above, that nothing turned, or could possibly turn, upon the acceptance or otherwise of the evidence relating to the identification test, in the present case."
12. All the same the Court went on to reverse the acquittal of the accused, so identified and convicted them on the basis of direct evidence of `the eye-witnesses and the incriminating circumstances.
13. Now there is no provision in law that identification proceedings should be held in cases where a crime is committed by persons unknown to the witness or for that matter in any type of cases. The identification has by itself no independent value. As stated by Viscount Haldane, L. C. In King v.
Christle (1914 A C 545) "its relevancy is to show that the witness was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake". In practice however, it is not safe to accept the statement of a witness about complicity of an accused in a crime if he did not describe him by name or other particulars during the investigation and still was not made to identify him out of a group. If, however, the identity of the accused is proved by other convincing evidence direct or circumstantial, the absence of identification test proceedings will be immaterial. It will be presently shown that in this case the identity of appellants was sufficiently and adequately established by the evidence of P. W. Rahim Khan corroborated by the recoveries from the appellants. But before that I may also refer to the identification that has, according to me, taken place at the police station for as stated earlier it is reasonable to assume that P. W. Rahim Khan had seen the appellants at the police station when they were in custody as suspects and that they were pointed out by the witness. It is the defence version that the appellants were not the only suspects in custody and if, therefore, P. W. Rahim Khan identified the appellants to the police as perpetrators of the crime. It is not a case of an accused being shown singly in advance to facilitate his identification later on. I am, therefore, of the view that the appellants were even otherwise properly identified by P. W. Rahim Khan at the police station. Be that as it may, for in any event, there is no reason to doubt the identification testimony of P. W. Rahim Khan at the trial.
14. To begin with, the assailants were unknown to the witness P. W. Rahim Khan. Both he and the deceased had come from a distant village. There was, therefore, no reason for the eye-witness to falsely implicate the assailants, thus leaving open the possibility of mistaken identity only. It was not a case of a fleeting or momentary glimpse of the assailants. The appellants had accosted the deceased and P. W. Rahim Khan, exchanged greetings and invited them to spend the evening with a woman of their choice which was declined. All the same, the appellants walked with the deceased and P. W. Rahim Khan for some distance trying to purusade them to accept their offer for an evening of pleasure but on their refusal, both of them belaboured the deceased and one of them caught hold of the deceased and the other gave knife blows to the deceased in an attempt to snatch the bag from him. Thus the interval of time could not be less than ten minutes which sufficiently afforded an opportunity to P. W. Rahim Khan to notice their features to enable him to give their fair description in the promptly lodged F. I. R. Which also described in detail the manner of the assault on the person of the deceased. It was argued that there was not sufficient light to see the appellants but no such suggestion was made to the eye-witness or the Investi--gating Officer in their cross-examination except for the general assertion that the witness had not identified the assailants, which he denied. Additionally, there is corroborative evidence accepted by the High Court of the recovery of the bag containing, among other things, the cash memo. For the purchase of the transistor-radio by the deceased at the instance of appellant Muhammad Afzal fro a place known to him. The criticism that receipt was in the name of P. W. Rahim Khan and not the deceased who bad purchased the radio rests on triviality. The cash memo. Was disclosed at the earliest in the F. I. R. And it is, therefore, far-fetched to assume that it was planted subsequently. As for appellant Muhammad Amin, he had led to the recovery of a knife on which blood was found to have disintegrated. All the same it did not lose its evidentiary value altogether as the likely crime weapon.
15. My conclusion, therefore, is that the identity of the assailants was in no way doubtful, which was further corroborated by recoveries made at the instance of the appellants. The High Court was accordingly justified in upholding the conviction of the appellants and confirming the sentence of death awarded to Muhammad Afzal for it was not even urged C that there were any extenuating circumstances justifying lesser punishment. The conviction and sentences are therefore, maintained and this appeal is dismissed.
ANWARUL HAQ, C. J.-I agree with the opinion recorded by my learned brother Fakhruddin G.
Ebrahim, J. That this appeal be dismissed. I would, however, like to make a few observations about the circumstances in which this appeal had to be reheard.
This appeal was heard on the 18th of February, 1980, by a Bench consisting of myself, Mr. Justice Muhammad Haleem, Mr. Justice G. Safdar Shah and Mr. Justice Muhammad Afzal Zullah, but unfortunately due to an oversight on the part of the office, the judgment was not circulated to me, and was delivered on the 31st of May, 1980, by the remaining three Judges of the Bench, rejecting the appeal. In th6se circumstances, the appellant filed Criminal Review Petition No. 23-R of 1980, which was accepted by us by our order dated the 22nd of November, 1980, on the short ground that as the appeal had been heard by four Judges, the decision should also have been by all of them. The previous judgment was, therefore, recalled, and the appeal has since been heard by this Bench.
Mr. Q. M. Salim, learned counsel for the appellant, submitted that Mr. Justice Muhammad Haleem and Mr. Justice Muhammad Afzal Zullah should not sit on this Bench as they had already expressed their opinion in the matter. This submission was clearly misconceived, as they were members of the original Bench, which had heard the appeal and were under an obligation to deliver a judgment in the matter, a judgment which bad to be recalled because I was not associated with the same due to a mistake in the office. There was, therefore, no question of the other two members of the Bench not participating in the re-hearing of the appeal. If Mr. Justice G. Safdar Shah had still been serving on the Supreme Court it would have been necessary to associate him also, but he is no longer available, having resigned in October, 1980.
I have thought it necessary to mention these few facts so as to place the matter beyond doubt that the Judges, who originally heard the appeal on the last occasion, were under an obligation to deliver a judgment, and had to be necessarily associated with the rehearing, which was necessitated only because of inadvertence on the part of the office of the Supreme Court.
MUHAMMAD HALEEM, J.-While agreeing with the conclusion of my learned brother Fakhruddin G.
Ebrahim, J., in the abovecited case, I would venture to give my own reasons which had persuaded me for agreeing with him.
The facts of the case need not be recapitulated here as they have been given in his judgment. On the question posed for consideration, namely, as to whether the identification of the appellants by Rabim Khan could be accepted, my answer to it is in the affirmative. According to Ahmad Yar (P. W.
14, S. H. O.), as he was on his way to raid the house of the appellants for arresting them in the morning of 16th of February, 1973, they were produced before him and they, thereupon, volunteered to produce the incriminating articles, Muhammad Nawaz, P. W. 11, who had turned hostile, but in his statement, recorded by the Inquiry Magistrate, which was transferred to the Sessions file disclosed that he had produced the appellants at the Police Station. The two witnesses, therefore, are not consistent as to the place where the arrest of the appellants was effected. In this behalf, the appellants have led evidence of Abdur Rahim (D. W.), Khuda Bakhsh (D. W. 2), Saadat Ali (D. W. 3) and Mst. Gamun (D. W. 4) on whose application (Exh. D. A. 1), the appellants were produced before the Ilaqa Magistrate on i6th of February, 1973. Abdur Rahim and Khuda Bakhsh have stated that during the investigation of the case, several persons were called for interrogation and amongst them were also the appellants. They were sent for after two or three days of the occurrence.
Further, they remained with the Police until 16th of February, 1973. Saadat Ali (D. W. 3), has deposed to the making of the application (Exh. D. A. 1) on behalf of Mst. Gamun, Muhammad Amin, in his statement under section 342, Cr. P. C. Has also stated that he was made to join the investigation from 13th of February, 1973. In the context of the evidence led by the parties, the fact stands out beyond doubt that several persons were held as suspects in the case including the present appellants for ascertaining the identity of the real culprits. The denial of the S. H. O. That this was not so appears to me to be wholly misplaced, for it was natural for him to seek those persons who answered to the description and the profession given in the F. I. R. And in that attempt the presence of the suspects cannot be denied. It is also impossible to believe that from 10th to 16th the S. H. O.
Would have slept over the matter until he chose to decide to raid the house of the appellants to arrest them in the morning of 16th and as to how he got the information that they were the real assailants, is also not appellant on the record, and if that was his institution, I must confess, it was too far-fetched to be accepted. Further, as the identity of the assailants was not established, it was also most likely that Rahim Khan must have been in contract with the S. H. O. Although he too denied having visited the police station during the detention of the appellants or for that matter to have seen them. Therefore, in the face of the fact that the identity of the real assailants had to be ascertained during the investigation, the fact stands out that the S. H. O. Must have shown the suspects to Rahim Khan for it was he alone who could have pointed them out; and it was then that their identity was established. Technically speaking, this exercise was not highlighted as such but from the evidence such a conclusion is unavoidable. This, in law, would meet the requirement of test identification as was held in Muhammad Bashir Alam v. The State (F L D 1958 SC (Pak.) 1) but the value to be attached to it is altogether a different matter and would depend on other factors as were highlighted in the above-cited case which I endorse.
Having held so, the test identification, in Jail, in the presence of the Magistrate, was a futile exercise and nothing would turn on it.
The next question for consideration is as to whether the identification of the appellants could be relied on and to what extent? It was corroborated by the test identification of the appellants at the Police Station. It is manifest from the testimony of Rahim Khan that he was a stranger and that he had come from some other village and had made purchases in the city; and it was while returning towards the Adda Larian, Khanewal that they came across the two appellants who followed them for some distance in an effort to persuade them to spend the night with a prostitute of their choice but on their refusal the present incident occurred. The contract between them was sufficient, in my view, to give an opportunity to Rahim Khan to have a mental picture of them which, accordingly, was highlighted in the F. I. R. No question was put to Rahim Khan to elicit any factor which could minimise his perception nor was the correctness of the role assigned to the appellants by description challenged apart from the question suggested that be did not identify the assailants which he denied. It is true that when a question arises in regard to the identification of a stranger, the factors such as the time of occurrence, state of light, the opportunities which the witness had of identifying him and the state of his mind are material circumstances which have to be considered in each case. This is not a case of momentary glimpse of the assailants in darkness in the midst of confusion prevailing in the course of the commission of the offence in which case mistaken identity could be, a possibility. Here, there was a close contract for some time before the occurrence in sufficient light to identify them with certainty. Therefore, it is difficult to conceive that Rahim Khan would not have retained their impressions to enable him to identify them later on. Further, as the identity of the assailants was not known. 1t was not a case where the police officer could have prompted or in any way facilitated the detection of the real assailants. His showing, therefore, of the assailants to Rahim Khan was technically an identification test.
Now, as to the value of this test in the context of the above discussion, it cannot be wholly without evidential value as Rahim Khan had, within two or three days of the occurrence, picked them out in the background of their detailed description given in the F. I. R. The possibility of mistaken identity in these circumstances is rare and cannot be taken notice of. The Courts below had relied on the test identification held in Jail for the reasons mentioned in the judgment. But as that test had no value, therefore, it could not be used for corroborating their identification in Court. The evidence of Muhammad Nawaz and the S. H. O., in regard to the production and arrest of the appellants, does not fit in with the high probabilities of the events and, therefore, it has to be disregarded.
Accordingly, I am of the view that the identity of the assailants is in no way in doubt. Besides, the incriminating pieces of evidence corroborate their participation. The High Court was, accordingly, justified to uphold their convictions.