ORDER OF REFERENCE The facts of the case are as follows :- On 5th October 1968, Safdar Hussain Constable No. 164 was posted at traffic duty near Bank Square, Rawalpindi. At about 6-30 p. m. Khurshid Ahmad and Khalid Pervez accused came in a tonga which was coming from the side of the Committee Chowk. When the tonga driver turned the tonga towards Habib Bank Road, Safdar Hussain Constable stopped the tonga and said that he would not let it go to this side because there is one-way-traffic. Khurshid Ahmad accused asked the Constable that he should not stop them and that the tonga will go from that side but the Constable did not agree. On this, Khurshid Ahmad and Khalid Pervez accused came down from the tonga and pulled out their knives and attacked the Constable. After inflicting the injuries with the knives to the Constable, the accused fled away declaring that if any body would come near them, he would also be killed. Safdar Hussain Constable was removed to the hospital where he died on I Ith October 1968. Muhammad Taj, Khadim Hussain and Muhammad Saleem are alleged to have witnessed the occurrence. On 14th December 1968. Khalid Pervez accused made an application to the learned Committing Magistrate that a parade be held in the Jail for his identification by the alleged eye-witnesses. The learned Magistrate on the same day, dismissed the application by his short order which is reproduced below :- "P. S. I. And Mr. Saeed Usman counsel heard. Parties heard. Request at this stage cannot. Be accepted as the accused and the three P. Ws. Are present outside the Court today. Moreover, the accused have been appearing in this Court a number of times before. Possibility of being seen cannot be excluded."
Khalid Pervez accused has now applied to this Court for the revision of the order of the learned Magistrate under section 435, Cr. P. C.
The proceedings are forwarded for revision on the following grounds :- The learned counsel for the accused-petitioner has cited at the bar AIR 1943 Lah. 303: wherein it was observed by his Lordship that whenever an accused person disputes the ability of the prosecution witnesses to identify him, the Court should direct an identification parade to be held save in the most exceptional circumstances. From the mere fact that the accused and such witnesses live in near villages, the Court should not prejudge that the accused has suborned these witnesses and reject the prayer for identification. For it is impossible to assume this until those witnesses have not only failed to identify the accused but have also been examined in Court with regard to the matter whether their failure to do so is .In collusion with the accused or not."
It has been contended before me that the petitioner has been involved on account of some misunderstanding or enmity and the witnesses did not know him. It appears that the learned Magistrate had prejudged the matter which should have been decided on merits.
For the reasons stated above, the record is forwarded to the High Court of West Pakistan, Lahore, with the recom--mendation that the order of the learned Magistrate refusing to hold the identification parade of the petitioner in the Jail premises be set aside, and the learned Magistrate be directed that before the eye-witnesses are examined in Court in presence of the accused, identification parade should be held in the Jail premises.
Syed Ali Raza for Petitioner.
Malik Mohd. Afzal for A.-G. For the State.
This reference to the High Court by the Additional Sessions Judge, Rawalpindi, has arisen in `the following circumstances : Two persons, Khalid Pervez and Khurshid Ahmad were challaned by Rawalpindi Police for an offence under sec--tion 302/353/34, P. P. C. For having, inter alia, committed the murder of Safdar Hussain Constable No. 164 on the 5th of October 1968, when he was posted on traffic duty. On the 14th of December 1968, Khalid Pervez one of the two accused filed an application before the learned Enquiry Magistrate that an identification test may be held and the eye-witnesses, namely, Muhammad Taj, Khadim Hussain and Muhammad Saleem may be called upon to pick him out.
This petition was disallowed by the learned Enquiry Magistrate on the ground that the accused persons had already appeared in Court a number of times and that even on the 14th of December 1968, when the application was presented before him the accused as well as the P. Ws. Were present outside the Court, and as such, the possibility of the P.W. Having already seen the accused could not be excluded. Feeling aggrieved Khalid Pervez (accused-petitioner) filed a revision before the learned Additional Sessions Judge who has referred the matter to the High Court with the recommendation that the order of the learned Magistrate be set aside and the identification test may be allowed as desired by the accused.
3. It is well settled that an accused person has to be fullest opportunity to defend himself in accordance with Although from the factual position as stated by the Magistrate, the possibility of the witnesses having already seen the accused cannot be excluded, yet the application by the accused cannot be thrown out on that ground. It might have been possibly motivated by one of the two considerations. Firstly, the accused-petitioner might still be genuinely optimistic that the witnesses might not be able to identity him and, as such, he may be prepared to take a chance.
Alternatively, he might have been able to win over the witnesses and the application might have been moved collusively. Be that as it may however, "the right of an accused person to insist on an identification test which in most cases would amount to throwing a challenge to the prosecution cannot be denied. In fact, there is also another aspect of the matter and that is that in case the prosecution fails to accept, such a challenge, the Court will be perfectly/justified in raising a presumption adverse to it. While therefore, on the one. Hand the dismissal of the application filed by the accused amounts to denial of his legitimate right, it is also likely to cause-prejudice to the case of the prose caution on the other.
4. The authority relied upon by the learned Additional Sessions Judge, in Support of the order of reference, namely AIR 1943 Lah. 303 supports the proposition that such a prayer of an accused person should not be turned down and an identification test should be held except, of course where there are compelling reason, to the contrary and it becomes merely a farcical and futile exercise serving no useful purpose for either party. In Siraj Din N. Kala and another (PLD 1964 SC 26) it was held by their Lordships of the Supreme Court that in a case where the witnesses were not acquainted with the accused the light was dim and the occurrence had taken place after sunset it as necessary that the accused should be put to an identification test.
5. In view of the above portion, I have hesitation to accept the reference made by the learned Additional Sessions Judge and direct that at least Khalid Pervez, if not both the accused, may he put to identification test, notwithstanding the reasons detailed by the learned Magistrate for not doing so.