Appellant Muhammad Owais was tried by Mrs. Qaiser lqbal, IInd Additional Sessions Judge (East)
Karachi, for the offence under section 452/307/302, P.P.C. Who found him guilty for the said offence and vide judgment dated 18-3-1989 sentenced him as follows:
(i) under section 452, P.P.C. Imprisonment for seven years and to pay a fine of Rs.500 or in default to suffer imprisonment for six months.
(ii) under section 307, P.P.C.R.I. For 10 years and to pay a fine of Rs.10,000 or in default to suffer R.I. For six months.
(i.e) under section 302, P.P.C. Imprisonment for life and to pay a fine of Rs.10,000 or in default to suffer R.I for six months.
All the substantive sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C., was also extended to him. The appellant has questioned the legality of his conviction and sentence through this jail appeal.
2. Complainant Mrs. I. D'Souza resided in P.E.C.H. Society, Karachi. Since her husband Rooni D'Souza had gone abroad, her elder brother deceased Richard D'Cruz resided with her in the same house.
On 26-8-1978 at about 3-30 a.m. Mrs. D'Souza were up on hearing the cries raised by her brother Richard D'Suza. She switched on the light and found one young, lean, and thin person with curly hairs stabbing deceased Richard D'Cuza. She intervened, whereupon she too was given knife blows. In the meanwhile deceased Richard D'Cuza collapsed and fell down and then the culprit managed his escape. Nobody was attracted on the cries raised by Mrs. I. D'Souza and deceased Richard D'Cuza. Mrs. I. D'Souza then rushed to the house of Peter Demingo for help, who took her to the houses of her brothers Rooni D'Cuza and Oven D'Cuza. All of them came to the place of occurrence. Deceased Richard D'Cuza was being shifted to Jinnah Post-Graduate Medical Centre, Karachi, in the car belonging to Peter Demingo, when he succumbed to the injuries. Mrs. I. D'Souza was provided medical aid and since she was in a state of shock, she was brought back to her house where her 154, Cr.P.C. Statement was recorded at 4-40 a.m., which was subsequently incorporated in 154, Cr.P.C. Book maintained at Ferozabad Police Station (Crime No.318 of 1978). On 30-8-1978, the appellant was arrested in presence of Mashirs Paul Anthony and Niaz Ali. On 1-9- 1978, the appellant while in custody led police party, Mashirs Sharfuddin and Salim Jan to a place near Cheelwali Kothi and after digging out the earth produced blood-stained clothes and knife, which were sealed on the spot. On 26-10-1978, the appellant was put to identification test through Mrs. I. D'Souza, who picked him out correctly. The blood-stained articles were sent to Chemical Examiner, Karachi, who after examination found them stained with human blood. After completing the investigation the appellant was sent up to stand trial for the said offence.
3. The appellant pleaded not guilty when the charge was read out to him and he claimed to be tried. At the trial the prosecution examined Mrs. 1. D'Souza (P.W.1), Peter Demingo (P.W.2), Rooni D'Cruz (P.W.3), Oven D'Cruz (P.W.4), V.G. Dias (P.W.5), Muhammad Hussain (P.W.6), Paul Anthony (P.W.7j. Fariduddin Qureshi (P.W.S), Sii;irluddin Ansari (P.W.9), Trover Di;is (P.W.1t)). Muhammad lrshad A.S.I. (P.W.11), Inayatullah Shah, S.I.P. (I'.W.12y, Dr. Muhammad Rafique (P.W.13), Ghulam Samadam, Inspector (P.W.14), Dr. Muhammad Rizwan Beg (P.W.15) and Syed Zaigham Hussain Rizvi, A.C.M. (P.W.16).
4. The appellant met the charge with a denial professing innocence. He examined himself on oath but led no other defence.
5. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
6. I have heard the appellant in person and Mr. Salman Ansari, learned counsel for the State. I have also examined the record of this case carefully.
7. The case of the prosecution mainly hinges upon the following items of evidence:
(i) Direct testimony consisting of Mrs. I. D'Souza (P.W.1) who has picked up the appellant in the identification test held under the supervision of a Magistrate.
(ii) Evidence of V.G. Dias (P.W.5) and Trover Dias (P.W.10), who saw the appellant wearing blood- stained clothes and having a knife in the fold of his Shalwar and who supplied a pair of clothes to him on the relevant night at dawn time.
(i.e) Recovery of blood-stained clothes and knife at the instance of the appellant.
8. Mrs. I. D'Souza (P.W.I) is the star witness of the prosecution and her testimony seems to have weighed considerably with the trial Court in tipping the balance against the appellant. She claimed to have seen the culprit clearly, who had the following description: (i)Height about 5'-7".
(ii)Age Young person.
(i.e)Physique Slim.
(iv)Hairs Curly.
(v)Clothes Shalwar and Kamiz.
"I see the accused now from a nearer distance and say that he does not have curled hairs:"
The evidence of Mrs. 1. D'Souza (P.W.1) consists of the impression formed by her from her recollection or recognition of appellant from his general appearance, face, voice and the clothes.
The mental capacities of persons differ widely in their power of observation and recollection and the Courts must, therefore, consider that a person placed in the position of the witness could fairly and reason be exception to recollect hearing in mind that the witnesses are not always honest and the police investigation not always fair. Quite admittedly Mrs. 1. D'Suora (P.W.1) had a momentary glimpse of the culprit, who was not known to her previously. She was under great shock and stress and, therefore, the possibility of mistake in such a situation cannot be ruled out and there is no end to such mistake, when the identity of a total stranger is involved in the above circumstances.
10. The appellant was arrested on 30-8-1978. He remained all along in detention, first in police custody and then in judicial custody till 19-10-1978, when the identification parade was held in Central Prison, Karachi. There is nothing on record to she was as to why this identification test was delayed and was held after 50' days of the arrest of appellant. The whole object of the identification parades is to find out whether the suspect is the real culprit or not, and if these parades are believed for such a long time without any plausible explanation then their object would be largely frustrated. In such a situation the possibility that the witness had seen the culprit in police or judicial lock-up cannot be ruled out. The case of Muhammad Hassan and another v The State reported in PLD 1970 Kar. 413, is clear on this point. Mrs. I. D'Souza (P.W.1) was herself not sure about the identity of the culprit. The evidence of Syed Zaigham Hussain Rizvi, A.C.M.I (P.W.16) is self-explanatory. He has testified: "She made a round of parade line and after several rounds she could not identify the accused. She requested that the back of accused persons may be turned towards her side. I directed all the persons of the parade line to turn their backs towards us, which they did. The witness again made several rounds but could not identify the accused. The witness lastly made request that the hands of the accused be shown to her, then she would be able to identify the accused. I asked all the persons of the parade including the accused to roll their sleeves and extend their hands on the front and this witness immediately put her hand on the hand of the accused and thus correctly identified the accused."
11. It appears that Mrs. I. D'Souza (P.W.1) had identified the appellant on seeing old scars on his hands. She has, however, not disclosed this fact in F.I.R. (Exh.7) or in her deposition recorded by the trial Court. In such a situation the following observations made by the Honourable Supreme Court in the case of Lai Pasand v. The State reported in PLD 1981 SC 142, are relevant: "Mr. Ibne Ali placed great stress on the finding of the High Court that Saadullah Khan was an honest witness. However, even if we assume for the sake of argument that the witness was a paragon of truth, this will not help the prosecution case, because it is not the appellant's case that Saadullah Khan had identified him dishonestly and falsely out of spite. On the contrary, the appellant's case is that Saadullah Khan was an old man, who had seen the murderer only for half a minute, or a minute, therefore, this old man could not possibly have identified the murderer after a delay of four or five months, the more so, as the old man had not given a description of the murderer in his statement to the police, which was given very shortly after the murder. This is the real point which requires examination. Can the possibility of an honest but erroneous identification be ruled out?
And, even if Saadullah Khan had not been an old man, we do not see how, in the circumstances of the case, the possibility of an erroneous identification by the witness could be ruled out. It is true that the witness said that he had identified the appellant, 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 rationalisation 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."
12. In the case of Amira and 6 others v. The State reported 1968 P Cr. L J 1876 it was observed that the mere fact that the witness had picked out the accused in an identification parade is not in itself sufficient to connect the accused with the crime, if the identification parade was not held soon after the arrest of the accused. No reliance can, therefore, be placed upon the evidence of Mrs. I.
D'Souza (P.W.1).
13. It is also the case of the prosecution that soon after the incident, the appellant had gone to the house of V.G. Dias (P.W.5) and Trover Dias (P.W.10), who noticed blood-stained clothes on his person and blood-stained knife in his possession, and the latter supplied a pair of clothes to him which he changed in their presence. Quite admittedly deceased Richard D'Cruz resided in the neighbourhood of these two witnesses, who also came to know about his murder. Trover Dias (P.W.10) has also admitted that he had attended the funeral of deceased Richard D'Cruz and he had informed Albert D'Cruz, brother of deceased Richard D'Cruz about the visit of the appellant to his house on the night of incident. -However, no development took place during all this period till the appellant was arrested on 30-8-1978. The visit of appellant alongwith his friends to the house of these two witnesses soon after the incident appears to be absurd on the face of it. The most important thing which must never be lost sight of when weighing testimony of this kind, is the possibility or probability, the impossibility or improbability of matters related thereto. The human conduct is to be judged by the standard of human probability. In ordinary course of human nature the appellant would not have gone to the house of a Christian friend for borrowing a pair of clothes, specially when he had earlier caused -injuries to deceased Richard D'Cruz and complainant Mrs. I.
D'Souza (both Christians) and residents of the same locality. It appears that this evidence was planted by the police just to lend support to the case of the,, prosecution. The evidence of both V.G.
Dias (P.W.5), and Trover Dias . (P.W.10) is, therefore, ruled out, being tissues of lies not deserving any credence.
14. We are now left with the evidence of recoveries. Besides being unnatural, this piece of evidence has got only corroborative value and is not sufficient in itself to bring home charge in such a serious case of murder. The learned counsel for the State finding himself on the horns of dilemma has made a feeble attempt in supporting the conviction. Accordingly benefit of doubt is extended to the appellant, who is acquitted from the charge. The judgment of the trial Court is set aside and the appeal is allowed. The appellant, who is in custody be released forthwith, if not required in any other case.