' KHALIL-UR-REHMAN RAMDAY, J.-- The appellants before us are Muhammad Yaqub, Muhammad Hussain, Mumtaz and Arshad who are aggrieved of the judgment, dated 3-7-1988 passed by the learned Special Court No,V, Multan, a Court constituted under the Special Courts for Speedy Trials Act of 1987.
2. Through this impugned judgment, all the four appellants stand convicted for the commission of offences punishable under sections 395 and 397 of the Pakistan Penal Code and have been sentenced to suffer 10 years' R.I. Each and to pay a fine of Rs,10,000 each or in default thereof to suffer further R.I. For two years each.
3. The occurrence, which led to this appeal, took place in the early hours of 2-1-1988 at Amin Petroleum Service within the jurisdiction of Police Station Mitroo of District Vehari. Ghulam Mustafa complainant reported the same to Musthaq Ahmad Inspector/S.H.O. Who reduced the information into writing (Exh.P.B.) whereupon a formal F.I.R. (Exh.P.B/1) bearing No, 1, dated 2-1-1988 was recorded at the said Police Station Mitroo at 8-50 a.m.
4. Describing the occurrence, Ghulam Mustafa complainant stated that he was employed at the aforesaid Amin Petroleum Service and was on duty on 2-11988 when at about 5-00 a.m. One man came there and asked for petrol. Just as the complainant opened the door of the duty room, this customer forced his entry into the said room and pointing a revolver at the complainant, asked him to quietly sit down. The complainant obeyed. Thereafter two more persons, one armed with a pistol and the other armed with a hatchet, also entered. They were followed in by two more persons who had covered themselves with Chaadars' and one out of whom was also armed with a pistol.
On being commanded to make over whatever he had on him, the complainant handed over, to the accused persons, the keys of the drawer as also four currrency notes of Rs,100 each wrapped in a handkerchief (P.5) with complainant's name and chak number embroidered on the same. The man armed with revolver then opened the drawer and took out Rs,17,600 lying there. While all this was going on, Akbar Ali (P.W.) who was a cashier at the petrol pump and was asleep, also woke up.
He was given blows with the butt of the pistol and with the reverse side of the hatchet by the persons carrying these arms and was deprived of Rs,2,000 in cash and of his `Seiko' wrist watch (P.4) which also, incidentally, had his name inscribed on it. The complainant and Akbar P.W. Were then pushed into the strong room of the petrol station. At this stage, one Muhammad Rafiq (P.W.) who is a police constable and used to be on duty to guard this petrol pump but had gone off to sleep, also woke up and saw the accused persons. He was also made to join the other two P.Ws. In the strong room. The accused persons then bolted the said room from outside and went away. One Allah Dad P.W. Came to the petrol station at about 7-00 a.m. And on hearing the shouts of the three P.Ws. Unbolted the strong room and liberated them all. The complainant then informed the owner of the petrol pump (Afzal P.W.) about the occurrence and thereafter went and reported the same to the S.H.O.
5. During the investigation, various persons were interrogated as suspects. Some were even detained. But then the four appellants were finally pinned down by the Investigating Officer as the real culprits.
6. Yaqoob and Muhammad Hussain appellants were arrested on 7-3-1988 whereas Mumtaz and Arshad appellants were arrested on 9-3-1988. All these arrests were made by Mushtaq Ahmad Inspector/S.H.O. (P.W.11).
7. The only incriminating recoveries effected during the investigation were, the afore-mentioned 'Seiko' wrist watch (P.4) belonging to Akbar P.W. And the above-described handkerchief (P.5) belonging to Ghulam Mustafa complainant P.W. And it was Mumtaz appellant who had, allegedly, led to these recoveries on 13-5-1988.
8. Although it is not really material for the adjudication of the present appeal, yet another recovery may also be mentioned to complete the narration. Muhammad Afzal P.W. Who is the owner of the petrol pump in question, alleged that one Haq Nawaz who is a brother of Yaqoob appellant had given him five thousand rupees which he, in turn, produced before the Investigating Officer (P.W.11) on 6-3-1988 and which were secured by the I.O. (P.W.11) vide memo. Exh.P.F. Likewise, one Muhammad Sadiq, who is a brother of Muhammad Hussain appellant, also gave five thousand rupees to the said Afzal P.W. Which were also handed over by the latter to the Investigating Officer (P.W.11) on 6-31988 and were also seized by him vide memo. Exh.P.G.
9. All the four appellants were put to an identification test in an identification parade held in the judicial lock-up on 24-3-1988 under the supervision of Mushtaq Ahmad Magistrate (P.W.3). His report about the proceedings of this parade is Exh.P.D.
10. According to this report, Arshad appellant, who had objected to his being subjected to this identification test claiming that he was a resident of the vicinity of the place of occurrence was a frequent visitor to the petrol pump in question and was thus known to the witnesses, could not be identified by any of the afore-described three eye-witnesses of the occurrence. Yaqoob and Mumtaz appellants were however, identified by all these three P.Ws. Whereas, only Akbar P.W. Could identify Muhammad Hussain appellant.
11. This then is the entire evidence available on record against the present appellants.
12. As has been stated above, the afore-explained seizure of Rs,10,000 by the Investigating Officer does not, in any manner, connect any of the appellants with the commission of the offence. This piece of evidence, thus, is of no avail to the prosecution.
13. Recoveries of wrist watch (P.4) and handkerchief (P.5) could be vailable, but, against Mumtaz appellant only, provided these recoveries inspired confidence. The recovery of these two articles was allegedly effected on 13-5-1988 i,e, more than four months after the occurrence and more than two months after the arrest of Mumtaz accused in this case. He had been interrogated by Mushtaq Inspector/S.H.0.(P.W.11) at length who had exhausted all the physical remands of this accused person without being led to any recovery. It was on 12-5-1988 that Rajan S.I. (P.W.11) was entrusted with the investigation of this case and the very next day, which was the last day of his physical remand, Mumtaz appellant felt tempted to oblige Rajan S.I. With the said recoveries. It has been mentioned above that watch (P.4) has Akbar P.W's. Name inscribed on it whereas the handkerchief (P.5) has not only the name but even the Chak number of Ghulam Mustafa P.W.
Embroidered on the same. To say the least, these recoveries are too tailor-made and too good to be believed. They do not inspire confidence and we accordingly find them unworthy of credit.
14. The eye-witness account offered by Ghulam Mustafa, Akbar and Rafiq P.Ws. Would be of consequence only if the prosecution could corroborate the same with the identification of the four convicts.
15. This then brings us to the scrutiny of the evidence offered through the identification parade which was held to provide an opportunity to the P.Ws. To prove that the four persons, arrested by the I.O. As the accused, were in fact the persons who had committed the offence in question.
16. But before we undertake a deeper analysis of the evidentiary value of the I test identification proceedings held in the present case, it would be of advantage c to first appreciate the object and the value of such an evidence as also to recapitulate the standards required to be met before such like identification parades could be credited with reliance.
17. The evidence offered through identification proceedings is not a substantive piece of evidence but is only corroborative of the evidence given by the witnesses at the trial Muhammad Bashir v.
The State PLD 1958 SC (Pak.)
1. It has no independent value of its own Muhammad Afzal and another v. The State 1982 SCMR 129 and cannot as a rule, form a sufficient basis for conviction though the same may add some weight to the other evidence available on record Sudhindranath v. The State AIR 1952 Cal.
423.
18. The identification parades (as they are normally called) are necessary only where the offender was a complete stranger to the witnesses Ismail and another v. The State 1974 SCMR 175. And the whole object of the identification proceedings is to find out whether the suspect was or was not the real offender Satya Narain v. The State AIR 1953 All. 385 and Kind v. Christle 1914 AC 545.
19. Such-like identification proceedings are not the testimony of a witness but the testimony of the senses of the witness. It is essentially a test of his power of observation and perception, a test of his power to recognise strangers and a test of his memory. These gifts of God may vary from man to man. A witness may be honest, independent and truthful but then his memory may be faulty. And then the tricks of memory and its conscious and unconscious activity could also wrap the vision of a man. When mistakes are possible in the recognition of a man known from before, then the possibility of such mistakes in identifying strangers is definitely greater. And more so when the witnesses have seen the offender for the first time during the occurrence and that also briefly and not with a calm but in an excited, confused and terrorised state of mind.
20. It was primarily for these reasons that Dorab Patel, J. (as his Lordship then was) cautioned the Courts to beware of the dangers inherent in the identification of strangers and quoting from the Criminal Law Revision Committee Report (1972), observed in Lal Pasand's case PLD 1981 SC 142 that mistaken identifications were:- "..... By far the greatest cause of actual or possible wrong convictions ' A similar note of caution was given by Monir in his Evidence Act Pak. Edition, Vol. 1 where the advice is that:- ".... The evidence as to identification ought in each case, to be subjected to a close and careful scrutiny."
21. What then are the standards required to be satisfied by such an evidence before the same could be accepted by a Court of law?
22. The answer is that the vital factor determinative of the worth and value of identification proceedings is the effectiveness of the precautions taken, before and during the course of such proceedings which are designed to eliminate the possibility of unjustified convictions.
23. Although there is no law which prescribes any such precautions yet the necessary guidelines are available in the form of executive instructions and judicial pronouncements. Some of them are summarised as under:-
(a) Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence;
(b) a test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as early as possible. Such suspects should preferably, not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held.
This is to avoid the possibility of overzealous I.Os. Showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand etc. They must be warned to cover their faces if they so choose so that no witness could see them;
(c) identification parades should never be held at police stations;
(d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custoy after their arrest and before the test identification and must incorporate this fact in his report about the proceeings;
(e) in order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it; (g)
(f) if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person; it must be ensured that before a witnss has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses;
(h) the Magistrate conducting the proceedings must take an intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of some one depends only upon his vigilance and caution; (i)the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line- up at the parade alongwith their parentage, occupation and addresses;
(j) the Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings;
(k) where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i,e, as a friend, as a foe or as a culprit of an offence etc. And then incorporate this statement in his report; (l)and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness; (m)the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings and
(n) the Magistrate has to give a certificate at the end of his report in the form prescribed by C.H.II.C.
Of Vol. III of Lahore High Court Rules and Orders.
24. The measures above listed should, however, not be taken as exhaustive of the steps which are required to be taken before, during and after the identification proceedings. All these requirements are no doubt mandatory but at the same time they are only illustrative of the precautions which the Courts of law demand before some respect can be shown to the evidence offered through the test identification proceedings. ##TSE#
25. In enunciating the above principles governing the proceedings in question and in enumerating the above measures and requirements, we have sought guidance from the following:-
(i) Rules and Orders of the Lahore High Court, Chapter 11-C of Vol. III; (ii) Punjab Government Circular Letter No, 6091-J-36/39829 (H-Judl.) dated 1912-1936; (iii) Punjab Government Circular Letter No, 6546-J-43/83844 (H-Judl.), dated 17-12-1943; (iv) Punjab Government Circular Letter No, Judl.I-(13)/61, dated 26-7-1961, (v) Monir's Evidence Act (Pak. Edition) Vol. I, (vi) Lal Pasand v. The State PLD 1981 SC 142, (vii) Muhammad Afzal v. The State 1982 SCMR 129, (viii) Ismail v. The State 1974 SCMR 175, (ix) Khadim Hussain v. The State 1985 SCMR 721, (x) Muhammad Bashir Aslam v.
The State PLD 1958 SC (Pak.), (xi) Gul Baig v. The State PLD 1964 Kar. 275, (xii) Musharrif Hussain v.
The State PLD 1970 Dacca 686, (xiii) Sadu v. The State 1972 P Cr. L J 10, (xiv) Qabil Shah v. The State PLD 1960 Kar. 697, (xv) Wahid Bakhsh v. The State 1969 P Cr. L J 137, (xvi) Karim v. The State PLD 1961 Kar. 728, (xvii) Kameshwar Singh v. The State AIR 1972 SC 102, (xviii) Parbhu v. Emp. AIR 1943 Lah.
946, (xix) Emp. v. Debi Charan AIR 1942 All. 339, (xx) Sataya Naryan v. The State AIR 1953 All. 385,
(xxi) Gajadher v. Emp. AIR 1932 Oudh. 99 and (xxii) Ramzan v. Emp. AIR 1929 Sindh 149.
26. Now adverting to the facts of the present case, we find that the identification parade was held about three months after the occurrence; that the accused persons had been in police custody for at least 48 days prior to the said parade; that even after the arrest of the accused persons in the present case, the parade was not held for at least 15 days without there being any explanation for this interval; that three of the accused persons had specifically alleged that they had been shown by the 1.0. To the witnesses during their police remand; that during this period prior to the identification proceedings, the accused persons were being produced in Courts for their remand without ever being warned or asked to cover their faces; that the description of the accused persons given in the F.I.R. Was vague and of a general nature which could apply to majority of the people; that the identification of all the four accused persons had been carried out jointly and separate identification parades in respect of each accused person had not been held and that a sufficient number of persons had not been intermingled with the accused persons and the prescribed ratio, of one to nine or ten was not followed without any explanation.
27. We note, with regret, that the conduct of the identification proceedings by the learned Magistrate (P.W.3) and the report of the proceedings in question (Exh.P.D.) prepared by him, are, to say the least, far from satisfactory. It is not stated in the report that before and during the identification parade, the identifying witnesses were kept at a place from where they could not observe the proceedings. It is not mentioned in the said report that after a witness had participated in the proceedings, he used to be sent to a place from where he could not communicate with other witnesses who had yet to take their turn. It is not stated in the report that after a witness had taken his turn, the accused persons used to be asked to change their places in the line-up. The report does not contain the names etc., of the seventeen persons who were mixed with the four accused persons. The precautions, if any, taken in respect of the proceedings have also not been incorporated in the report which does not even carry the certificate which is required to be given in the prescribed form at the end of the report.
28. In view of what has been stated above, we find that the evidence relating to the test identification proceedings is not worthy of any credit or reliance. We, accordingly, hold that the prosecution has failed to establish that the present appellants were the persons who had committed the offence in question.
29. Consequently, we accept this appeal. The judgment dated 3-7-1988 passed by the learned Special Court No, V, Multan, the conviction recorded against the present appellants under sections 395 and 397, P.P.C. And the sentences awarded to them therefore, are all set aside. All the appellants are acquitted of the charges levelled against them. They shall be set at liberty forthwith, if not required to be detained in any other case.