' SAJJAD ALI SHAH, J.---Respondent is common in both these appeals and he has been acquitted by learned Special Judge, Special Court for Speedy Trials, Sukkur and Larkana Divisions at Sukkur, vide judgment dated 25-6-1992 in Special Case No,12 of 1992. He stood trial under section 302, P.P.C.
For committing murder of Mst. Noor Khatoon aged about 10 years. It appears that two acquittal appeals have been filed by way of precaution on account of doubt whether Provincial or Federal Government has to file appeal. In fact offence or crime is committed in this case against the State, which is to be represented by Advocate-General Sindh regardless of the fact that marking of the case for trial in the Special Court for Speedy Trials is done by Ministry of Law, Justice and Parliamentary Affairs at Islamabad. We propose to dispose of both acquittal appeals against the same respondent by common judgment.
2. Briefly stated the relevant facts are that on 12-1-1992 at about 11-15 a.m. In response to knock at the door Mst. Umedan wife of complainant Shamsuddin Shaikh opened the door of her house and saw a man who informed her that he was sent by her husband to tighten the net of the cot. Mst.
Umedan directed her 10 years' old daughter Mst. Noor Khatoon to point out the cot to that man on the roof of the house. At that time P.W. Gulzar Ahmad was also present who is stated to be related to Mst. Umedan. In their presence Mst. Noor Khatoon and the man went to the roof. After a while cries of Mst. Noor Khatoon were heard and the man came down the stairs. Both these witnesses went up the roof and found Mst.Noor Khatoon with knife injuries on her neck and stomach and she was bleeding profusely. Complainant Shamsuddin who is Divisional Head Draftsman in Upper Sindh Mechanical Division, Sukkur was working in his office and he was informed on telephone by P.W. Gulzar Ahmad. He rushed to the spot, verified the facts and had injured removed to Civil Hospital where she died. Complainant Shamsuddin filed F.I.R. With 'A' Section Police Station, Sukkur in which motive is stated that about 7 or 8 days back he had asked Ghulam Kadir Solangi and Sobharo, peons of his office to tighten the net of the cot and perhaps on that account they were annoyed with him and either of them killed or got killed his daughter.
3. P.W.7 S.I.P. Zafarullah deposed before the trial Court that on the day of incident at 1-15 p.m. He recorded F.I.R. Of complainant Shamsuddin and then went to the Civil Hospital. He sent the dead body for post-mortem examination and visited place of occurrence which was shown by the complainant. From the roof of the quarter he recovered blood-stained earth which was put into a sealed parcel. He prepared Mashirnama of Vardat and recorded statements of witnesses. On 19-1- 1992 he arrested Sobharo and Ghulam Kadir and arranged for identification test before the Magistrate. Respondent Sobharo was identified by witnesses in the parade. On 25-1-1992 Sobharo produced blood-stained knife from his house which was put into sealed parcel. After completing other steps in the investigation, challan was presented in the Court.
4. Prosecution in the trial Court produced evidence of 7 witnesses in support of its case including two very material witnesses, who can be called near eye-witnesses for the reason that they were present at the spot at the time of incident and saw everything except infliction of injuries to the deceased which took place on the roof of the house. D.W.1 Dr. Nand Lal conducted post-mortem examination and declared age of deceased girl to be about 8 years. She sustained three stab wounds, one on the left side of the neck, second on the left side of the chest and third in the region of abdomen. According to the doctor, death was due to shock and haemorrhage both external and internal due to injuries to major vessels and lung. P.W.2 is complainant Shamsuddin who is father of the deceased girl and was not present at the spot when occurrence took place. P.W.3 Mst. Umedan and P.W.4 Gulzar Ahmad are the two material witnesses mentioned above. P.W.5 Fida Hussain is Mashir and P.W.6 is Mr. Abdul Shakoor, Magistrate who supervised identification test. P.W.7 is S.I.
Zafrullah who investigated the case. In his 342, Cr.P.0 statement respondent Sobharo denied prosecution allegations and claimed false implication due to enmity. He further stated that he had .Been complaining against complainant and other officers and for that reason he has been involved falsely. He declined to be examined on oath and produced no witness.
5. In this case unfortunately pieces of evidence produced are unsatisfactory and not free from doubt. Two very material witnesses are P.W.3 Mst. Umedan, mother of deceased and P.W.4 Gulzar Ahmed, who claimed to have seen the person who castle to the house and went on the roof of the house alongwith deceased Mst. Noor Khatoon. They heard, cries and saw the man running down and they went up and saw the girl in injured condition. Evidence of Mst. Umedan does not inspire confidence for the reason that she would not have admitted complete stranger in the house unless he was known to her from before. Gulzar Ahmed was not present when the culprit knocked at the door which was opened by Mst. Umedan. Conversely if the man had been known to her and had been coming to her house frequently, then she could know his name and identify him and could inform her husband accordingly and the husband would name the culprit positively in F.I.R. Instead of expressing doubts suggesting that identity of the culprit was not ascertainable. Mst. Umedan in her cross-examination admitted that she was heart patient and her husband used to send a peon for domestic work. Her age in the deposition is shown as 23 years. It may be a mistake because she is mother of deceased who was about 10 years of old. 23 years old young lady to be heart patient does not click. She has also admitted in her cross-examination that respondent used to come to her house for domestic work and used to tighten the net of the cot whenever required. She did not know Ghulam Kadir Solangi, who never came to her house for domestic work. It is admitted by her in her evidence that she did not give description of the culprit about his features to the police. It also does not appeal to commonsense that she would allow stranger to go on the roof of the house alongwith her daughter of about 10 years' age unless the man was known to her and was reliable.
5-A. About P.W.4 Gulzar Ahmed it was stated by Mst. Umedan that he is near relation of her deceased father and had been visiting their house. Gulzar Ahmed deposed that he was passing by the house of the complainant when he saw respondent standing at the door. He also went to the house of the complainant and respondent told him that he had come to tighten the net of the cot.
This does not fit in with the assertion of Mst. Umedan, who did not say that when she opened the door she saw together Gulzar and culprit or respondent. Incident took place at 11-15 a.m. And Gulzar stated that he worked in the same office in which complainant worked and on that day he did not go to his office because his cook had gone on leave. Gulzar did. Not identify respondent at the door of the house of the complainant in spite of the fact that he worked in that office for 30 years and generally knew all the people working there. Had he identified culprit to be respondent, he would have so informed complainant when he spoke to him on telephone after the incident. This witness stated that on the day of the incident he had applied for one day's leave. At the time of the incident he was going to purchase Paan. He was confronted with his police statement in which he had stated that he had gone to see complainant at his quarter at the time of the incident. In cross he admitted that he had seen respondent previously but did not know his name. He admitted that he did not give features of respondent in his statement before police. He admitted that complainant and P.W. Mst. Umedan did not inform him that respondent used to go to their house for domestic work. He further stated that when complainant returned from police station, he told him that he had suspicion in those two persons. He also stated that there were other people present at the spot but he could not say who they were. This witness stated in his examination-in-chief that on her cries while he started going upstairs he saw respondent coming down stairs armed with knife in his hand. It is surprising why this witness did not stop respondent to enquire from him as to what happened and why was the girl crying.
6. It appears that when after the incident P.W.2 complainant Shamsuddin came to the spot he was not informed about the identity and description of the assailant and had witnesses done so, he would have pinpointed the assailant by name or description instead of expressing doubt. He stated in cross-examination that quarter of P.W. Gulzar Ahmed was 15/20 paces away from his quarter and there were quarters of other Government employees near his quarter and he was at pains to explain as to why nobody else responded to the cries of his daughter at the time of incident. In cross-examination complainant admitted that he had got the net of the cot rearranged earlier through respondent and also other peon Ghulam Kadir Solangi. He had asked respondent and Ghulam Kadir Solangi for tightening the net of the cot about one week before the incident. He asserted that he did not inform P.W. Gulzar Shaikah that in F.I.R. He had lodged suspicion on respondent and Ghulam Kadir Solangi. Complainant admitted in the cross that his wife did tell him that assailant had a beard and longish face but he did not mention this description in F.I.R.
7. Now we take up identification test which was done on 19-1-1992. P.W.6 Mr. Abdul Shakoor, Special Magistrate, Sukkur Municipal Corpoation, deposed about the test. According to him respondent and Ghulam Kadir Solangi were in custody and he put them in identification test alongwith 13 other persons. Both Mst. Umedan and Gulzar Ahmed picked out correctly Sobharo. In cross-examination this witness stated that he did not ask the police as to on what date they had arrested those persons. Mst. Umedan admitted in her cross-examination that she did not give description of the accused to the police but she successfully picked out respondent in the identification test. P.W.
Gulzar stated in his deposition that he had seen respondent previously but did not know his name and he had been seeing him in the office. He also admitted that he did not give features of the respondent in his statement before the police and he was shown by respondent by police before I.T.
8. P.W.5 Fida Hussain is Mashir who is called by the trial Court as omnipresent. He was also present at the time of identification test and has mentioned in his deposition those proceedings and further stated that he signed Mashirnama of identification Exh.9/D. In his presence respondent produced knife from a hole near the door of his house. He remembered the date to be 25th January when knife was produced. It was blood-stained and was put into sealed parcel. It may be mentioned here that incident took place on 12-1-1992 and knife was recovered after 13 days.
Mashirnama of recovery and knife is Exh.9/E. In cross-examination he denied that he went to the Civil Hospital because he had friendship with complainant. This witness stated that when recovery was made from the house of respondent, about 10/15 persons were present there.
9. After appraisal of evidence we are of the view that evidence of Mst: Umedan and Gulzar Ahmed does not inspire confidence and we do not feel satisfied that they were really present at the spot and saw the respondent as the person who came to the house as is claimed by the prosecution.
Had they been present, not only they would have identified the respondent who was previously known to them but could have also held him as he came down stairs with knife after cries were heard at the roof. They could have given the name or proper description to the complainant who came to the Vardat after the incident was over. Identification test has no evidentiary value for the reason that description of respondent was not given by the witnesses in their police statements and secondly, respondent was previously known to them as is reflected in their cross-examination.
10. Learned A.A.-G for the State argued before us that in this case identification test should be ignored for the reason that it was not necessary as respondent was known to the witnesses previously. He has resorted to this contention because otherwise evidence of identification test is defective for the reason that description of respondent is not given in F.I.R. Learned A.A.-G. In support of contention has cited three cases. In the case of Ismail and another v. The State (1974 SCM R 175) it is held that identification parade is necessary only when accused was seen for the first time even if he was known by face without knowledge of name. Second case is of Abdul Rehman v.
The State (PLD 1975 SC 275) in which it is held that value of identification parade is nil if accused was known to the witness by face without knowledge of his all aliases. Third case is of Muhammad Yousaf Zai v. The State (PLD 1988 Kar. 539) in which Division Bench of the High Court has held that identification test of accused is not a legal requirement, if eye-witnesses can identify the accused before the trial Court, which is enough. This was so held in a case which was tried for offences under sections 403 and 109, P.P.C. In which fraud was discovered by the Bank in respect of cheque encashed for Rs,95,500. The observation was made in the background of circumstances and facts which are contained in paragraph 5 of the report, relevant part whereof is reproduced as under:-- "There seems to be ample evidence on record to prove the factum that the appellant was the person who opened the above account in the Karimabad Branch of the Bank and had deposited the above cheque Exh.2/F and had withdrawn the above amount through Exhs.2/H-4. In this behalf reference may again be made to the evidence of P.W.1 M.Ismail Ghanchi the Manager of branch concerned of the Bank, P.W.2 Muhammad Farooq and P.W.4 Muhammad Akram Rathore the Manager of Taj Company Ltd. In whose presence and in the presence of P.W.1 the appellant made the extra-judicial confession which factum has been even admitted by the appellant by putting a question in the cross-examination to P.W.4 Muhammad Akram Rathore to the effect that the above extra-judicial confession was extracted under coercion. We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. If eye- witnesses can identify the accused before the trial Court that is enough. In the present case the appellant had visited the Karimabad Branch of the Bank not only at the time of opening of the account but had also visited five times while withdrawing the amount of Exh.2/F through five cheques during the period from 5-9-1984 to 17-9-1984 whereas the identification parade was held on 3-12-1984 and the evidence of the above witness was recorded in December, 1985."
11. It is now very clear that the case of Muhammad Yousaf Zai (supra) is distinguishable and observation of the High Court is confined to the peculiar facts of that case of bank fraud only and there was no intention to lay down general proposition as is being convassed before us by learned AA.-G. That identification test need not be held if eye-witnesses are able to identify the accused before the trial Court even in murder cases. If this view is accepted, then whole legal infrastructure of identification test made under the law and supported by case-law would collapse and become redundant. Legal position stated in the other two rulings is correct but would not apply to the facts of the present case in which the eye-witnesses did not give name of the accused to the complainant nor gave description of his features for the reason that he was not known to them from before and was seen by them for the first time. We, therefore, agree with the trial Court that identification test has no value for want of description of respondent in F.I.R.
12. When ocular evidence and evidence of identification test in the analysis of evidence become unreliable and doubtful the remaining evidence alone is not suficient and of satisfactory nature to justify conviction. In this case motive is of weakest kind. In F.I.R. Doubt was expressed by the complainant that he had asked two peons of the office to tighten net of the cot in his house, hence it was possible that being annoyed one of them might have committed or got committed the murder. No doubt absence or weakness of motive would not come in the way of the case of prosecution and can be condoned if there is otherwise strong and reliable evidence in support of the case. Reference can be made to the case of Mushtaq Ahmed v. Muhammad Siddiq and another (PLD 1975 SC 160).
13. Trial Court has discarded evidence of recovery of knife on the ground that P.W.5 Mashir Fida Hussain appeared to be readily available on all different dates during investigation of this case whenever so required. He admitted in cross-examination that he was accused in many cases in which he has been facing trials. In the circumstances trial Court was of the view that he was as good as a stock witness and was not reliable. This Mashir deposed before the trial Court that knife was produced by the respondent before the police which he took out from hole near the door of his house. In Mashirnama Exh.9/E it is stated that respondent produced knife wrapped in black plastic bag from one hole in the wall at about 3/4 feet in the East of the door. Trial Court has observed after seeing the knife in the Court that it was a small rusted pen knife bearing name of "M.Rafique" engraved on it but recovery' memo. Exh.9/E does not make any such mention in the description of knife at the end. Mr. Nadeem also submitted before us that omission in F.I.R. With regard to name and description of respondent may be ignored on the ground that F.I.R. Is a brief document and cannot contain all minute details. In support he has cited case of Fazlur Rehman v. Abdul Ghani (PLD 1977 SC 529). Of course, it is so held in the reported case but in that case complainant omitted to state in the initial report that his deceased uncle immediately turned round and was hit in the back..According to F.I.R. Complainant and his uncle Hazrat Shah were going for Isha prayers in the mosque, when Abdul Ghani fired at Hazrat Shah who fell down injured and complainant also fell over his uncle. This omission is different from omission of description in F.I.R. By which identity of the culprit can be established.
14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCM R 96). In consequence this appeal has no merits and is dimissed.
…and 35 more citing cases