A case under sections 302, 307, 325, 326, 149 and 148, P.P.C. Was registered at P.S. Sadar Sahiwal, vide F.I.R. No. 103, dated 29-6-1985 at the instance of Khushi Muhammad P.W. For the murder of Mushtaq and for causing injuries to him and Muhammad Ismail, Muhammad Afzal and Ghulam Rasool P.Ws. Against Muhammad Arshad etc. 13 accused. Besides the complainant and the above- mentioned three injured eye-witnesses, the occurrence was said to have been witnessed by Lal and Karam Bakhsh P.Ws. Also. After completion of investigation, the accused were challaned.
2. On 14-7-1985, Abdul Hameed, Anwar Khan, Liaqat Ali, Afzal Khan, Rauf Khan, Sarwar Khan and Arshad accused claiming themselves to be innocent, made an application to the Sessions Judge, Sahiwal that the eye-witnesses did not know them before the present occurrence and as such, a test identification parade be held requiring them to identify them in Central Prison, Sahiwal. In paragraph 4 of this petition, it was stated that Ismail and Ghulam Rasool, both injured PAR. As well as Lal and Karam Bakhsh P.Ws. Be asked to identify Abdul Hameed accused while Khushi Muhammad, Ghulam Rasool, Ismail, Afzal injured P.Ws. As well as Lal and Karam Bakhsh P.Ws. Be asked to identify Anwar Khan, Liaqat. Afzal Khan, Rauf Khan, Sarwar Khan and Arshad Khan accused. The learned Sessions Judge on 14-7-1985 entrusted the Raid application to the Ilaqa Magistrate for needful in accordance with law and directed the counsel for the applicant to appear there on 15-7-1985. The application was placed before a Duty Magistrate on that date who recorded an order saying that the concerned Officer has gone to Multan alongwith the Special Military Court and ordered that the application be put up on 18-7-1985 before him. This application was again placed before the Duty Magistrate on 18-7-1985 because the Ilaqa Magistrate was not available. It was, therefore, ordered that the petition be sent back to the Sessions Judge. It was placed before the Sessions Judge, Sahiwal on 18-7-1985, who transferred the said application to the Assistant Commissioner for further action. The Assistant Commissioner, Sahiwal on 21-7-1985 passed an order that he would himself go to Sahiwal Central Prison on 29-7-1985 at 8-30 a.m. To hold test identification parade. He issued direction that S. H .0. Police Station; Sadar be informed of the same to bring the witnesses at the jail gate. On 29-7-1985, the Assistant Commissioner reached Central Prison, Sahiwal, at 8-30 a.m. He met the Deputy Superintendent of jail who informed him that the test identification parade was ready for further proceedings. As an Inspection Committee comprising of the Session Judge, Deputy Commissioner and Superintendent of Police, Sahiwal, had come to jail, the proceedings were ordered to be kept pending till 9-30 a.m. The Assistant Commissioner at 9-30 a. m. Did not find any witness present to join the test identification parade.
He, therefore, adjourned the proceedings to 5-8-1985, at 8-30 p.m. The Superintendent of Police was informed of the situation. On 4-8-1985, the Assistant Commissioner of its own passed an order that as he is to attend a meeting on 5-8-1985 in connection with the Independence Day and other matters, so it may not be possible for him to attend to the identification parade himself. He, therefore, deputed the Duty Magistrate to do the needful. The Duty Magistrate accordingly went to jail on 5-8-1985 at 8-30 a.m. Muhammad Aslam F.C. Was present. He recorded his statement. It was stated by F.C. Muhammad Aslam that he was given summons for service on nine prosecution witnesses for 5-8-1985. He went to Chak No. 87/6-R and could effect service only on Abdul Hameed. Out of the remaining witnesses, Khushi Muhammad, Muhammad Ismail Ghulam Rasool and Afzal were stated to have gone out of the village. The remaining tour witnesses refused to receive summons. This report was verified by the Lambardar and Chaukidar of the village. The Duty Magistrate kept waiting for the witnesses for about half an hour but no witness turned up to join the test identification parade. It was opined by him in his note, dated 5-8-1985 that according to law, there was no provision of law to compel the prosecution witnesses to join test identification parade.
The papers were sent to the Assistant Commissioner Sadar Sahiwal, who forwarded them to the Session Judge, Sahiwal. On 22-8-1985, the Sessions Judge, Sahiwal sent back the papers to Assistant Commissioner, Sahiwal for proceeding with the application in accordance with the order, dated 18-7-1985. The proceedings were placed before the Assistant Commissioner on that very day who passed an order that the prosecution witnesses were not prepared to join identification parade regarding which he had already written a report, dated 8-8-1985 and as such, no further proceedings can be held. He ordered that the application for identification parade be filed and placed on the file of the challan of the accused.
On 31-8-1985, another application was made by the accused for same purpose. The Sessions Judge issued notice to the other party for 2-9-1985 when arguments were heard and the petition was fixed for order on 3-9-1985. On that date, the Sessions Judge, Sahiwal, transferred the case alongwith the said application to the Court of Mr. Farrukh Latif, Additional Sessions Judge, Sahiwal.
It was placed before the Additional Sessions Judge on that very day who fixed the petition for arguments on 4-9-1985. The petition was ultimately decided on 5-9-1985 when the Additional Sessions Judge forwarded the same in original to the Ilaqa Magistrate for conducting identification parade of the accused by the P.Ws. Within fortnight positively. It appears that the application could not be placed before the Ilaqa Magistrate immediately thereafter. On 15-9-1985, the Duty Magistrate ordered that the petition be placed before Ilaqa Magistrate on his arrival as ordered by the Additional Sessions Judge. On 19-9-1985, the Duty Magistrate recorded an order that the Ilaqa Magistrate is busy with the Military Court, Multan on account of which the identification parade could not be held He, therefore, submitted the papers to the Additional Sessions Judge for further orders. The learned Additional Sessions Judge vide impugned order, dated 23-9-1985 recalled his earlier order, dated 5-9-1985 and rejected the application for holding of test identification parade, on the grounds firstly that there was no provision in the Code which entitles an accused to demand identification parade at or before the inquiry of the trial and that the petition for identification parade was moved at belated stage i.e. After the submission of challan in Court. He, therefore, dismissed the petition as stated above.
3. In support of, this petition, it is contended by the learned counsel for the petitioners that firstly, the learned Additional Sessions Judge was not competent to recall his earlier order, dated 5-9- 1985 and as such, the impugned order was passed against the provisions of section 365, Cr.P.C.
Secondly, that the finding that the application was a belated petition was not correct because the same was made on 14-7-1985 i.e. About 15 days of the registration of the case which was still under investigation at that time and thirdly; that it has been wrongly held that the accused did not possess any right to claim a test identification parades in prison. The learned A.A. -G. On the other hand, controverted the contentions of the learned counsel for the petitioners and contended that the occurrence took place on 29-6-1985, at 12-00 noon in Chak No. 87/6-R, about six kilometres from P.S. Sadar Sahiwal. The F.I.R. Was recorded on the same day at 2-30 p.m. By Inspector Sardar Muhammad at the instance of Khushi Muhammad P.W. Who himself wap injured during the occurrence alongwith the deceased and three other injured eye-witnesses. The accused were named in the F.I.R. Without any ambiguity. They were ascribed specific part therein and as such, the application to have a test identification parade of some of the accused from some of the witnesses was meaningless and of no consequence. It was further contended by him that the impugned order did not amount to alteration and review of the earlier order and that the challan having already been filed in Court, a test identification parade could not be ordered.
4. I have considered the above contentions on behalf of the parties and have also gone through the police file in this case. A perusal of the F.I.R. Would show that all the accused including the petitioners were named in F.I.R. Wherein specific part was attributed to them. However, the petitioners claim that they were not present at the place of occurrence nor did the eye-witnesses knew them earlier to the occurrence and as such, prayed for test identification parade in prison.
This application was accepted and as is clear from the narration of facts given above, twice the Magistrate went to Central Jail, Sahiwal but no one of the witnesses appeared to join the said parade. This means that the eye-witnesses were reluctant to join the said test identification parade, which fact, may be pressed by the accused in A their defence during the trial, and will remain subject to doubt which might easily have been removed if they had joined the test identification parade.
It is correct that the Code of Criminal Procedure does not contain any provision giving a right to an accused to claim test identification parade. However, the evidence of test identification parade is relevant under section 9 of Evidence Act being a fact necessary to explain or to introduce relevant facts. "Question relating to identity may arise in two ways; either a person's identity with an ascertained person may come in issue or on his identity as the doer of a particular act may come in question". (M. Monir on Law of Evidence), It is well-settled that an accused has to be given full opportunity to defend himself in accordance with law and, therefore, his right though not specifically given in law, was recognised to insist on an identification parade during investigation.
To insist on an identification parade, in most cases would amount to throwing a challenge to the prosecution. In case the prosecution fails to accept the challenge, the Court will be perfectly justified in raising presumption adverse to it. This view is supported by Khalid Pervez v. The State 1970 P Cr. L J 264. However, in spite of the above finding, 1 am not prepared to concede to the request of the petitioners because, as held in Ismail and another v. The State 1974 SCM R 175, it is only where the accused are seen for the first time at the place of incident by a witness that it becomes necessary to put such a witness to test identification parade. If an accused is already known by face although not by name it is unnecessary to put up such ca witness to a test identification parade because at the parade he only C identifies by face and not by name. Similar view was held in Muhammad Bashir and others v. The State 1983 P Cr. L J 1955. In the instant case, the occurrence took place during day time. The accused were named in the F.I.R. Which was lodged within a short time of the occurrence. The petitioners were attributed specific role during the occurrence and as such, holding of test identification parade would be meaningless. I, therefore, find no merits in this petition which is accordingly dismissed.
Before parting with this judgment, it may be observed that the conduct of the Assistant Commissioner and Duty Magistrate concerned who had dealt with this case under directions of the Sessions Judge/Additional Sessions Judge, Sahiwal, cannot be appreciated. They showed scant regard for the orders of the Sessions Judge. They expressed their helplessness on account of non- availability of witnesses to join D the test identification parade. They could have procured the presence of the witnesses by coercive methods by following the procedure laid in Chapter VI of the Criminal Procedure Code and also, if necessary, prosecuting them under sections 174 and 179, Cr.P.C. Subordinate Courts are expected not only to have full regard to the orders of the superior Courts but they are bound to comply with the said orders in letter and spirit which they both failed to do.