SHAUKAT HUSSAIN ZUBEDI, J.- The appellant Saidullah son of Karam Khan along with acquitted accused Hashim was tried by the learned It Addl: Sessions Judge, Karachi Central, who by his judgement dated 8.3.1992 convicted the appellant under Section 382 PPC and sentenced him to undergo R1 for 3 years and i.e of Rs. 5,000/- pr in default of payment of i.e to undergo R1 for six months more. By the same judgement to co-accused Hashim was acquitted. The appellant has now challenged his said conviction and sentence under the aforesaid appeal.
2. The case of the prosecution is that on 7.2.1983 between 2.30 and 2.45 PM the complainant Muhammad Shafi along with several other persons namely Naris Khan, Aslam, Rustam, Jamil, Haji Khaliqdad, Haji Gul Zaman, Hakim Khan, Talib, Amal and Sarwar had collected at the Dera of Seth Abdul Sattar. It is stated that on the 7th of each month all the said persons used to gather together as they were members of a committee (B.C.) and each one of them used to deposit Rs. 5,000/-.
Thereafter a count is made and one of the persons is paid the total amount. On the said date Rs.
80,000/- had been collected which was lying on the cot and at that time two persons armed with i.e arms entered the room. On sheer force they took the amount lying on the cot and so also removed Rs. 20,000/- from the pocket of the complainant along with his watch. From PW Naris Khan Rs. 4,000/- was taken from his pocket and so also his Omega Watch. After looting the complainant party the accused persons bolted the door from outside and went away. Two other associates of the accused were outside the Dera, one of them was the driver of the car and it is said that all the four accused managed to fled in the said car. Subsequently the complainant went and lodged the report at Police Station Gulbahar.
3. The report of the complainant Ex:12 was recorded by SI Hafeezuddin Qureshi while the investigation of the case was handed over to SI Ali Gohar Khan, who proceeded to the place of wardat which was situated in Jalalabad near block 27 Nazimabad, Karachi. He inspected the place of wardat and prepared mushirnama Ex:
15. In the meanwhile the SHO resumed his duty and took over the investigation from him. Subsequently the investigation of the case was transferred to Crime Branch and Inspector Amanat Javed of Crimes Branch was entrusted with the investigation of the case. He verified the investigation which was conducted by Inspector Abid Naqvi and by Inspector Muhammad Yar Khan. He also secured one watch from acquitted accused Hashim but the mashimamam of recovery of the said watch was not available. He also states both the accused were identified by witnesses in the presence of Magistrate under mashimama of identification Ex:41. After completing the investigation he submitted the challan against both the accused and absconding accused Abdul Hameed.
4. The case of absconding accused Abdul Hameed was bifurcated, as such the trial commenced against the appellant and acquitted accused Hashim. The charge framed by the trial Court was under Section 17(3) of the Offences Against Property, Enforcement of Hudood Ordinance, 1979, which was denied by the appellant and the co-accused. The prosecution in support of its case examined PWs Muhammad Shafi, Ghulam Sarwar, Naris Khan, Talib Hussain, Abid Hussain Naqvi, SHO PS Ghlbahar, SI Ali Gohar Khan and Inspector Amanat Javed. Thereafter the prosecution closed its side vide Ex:33. The statements of the accused were recorded under Section 342 Cr.P.C.
Both the accused claimed to be innocent having been involved due to enmity. Both of them wanted to examine defense witnesses Gul Muhammad and Imam Bux and also wanted to examine themselves on oath. Both the accused were examined under Section 340(2) Cr.P.C, in which they claimed to have been falsely implicated due to enmity with one Malik Alauddin who is a retired DSP.
Both the accused claimed to have been arrested by CIA Police and were shown to the witnesses at the CIA Centre. DW 1 is Imam Bux and DW 2 is Gul Muhammad. Both the defense witnesses have testified to the fact that they know Malik Alauddin and Malik Azam. Malik Alauddin was a retired DSP who was against the present accused due to enmity with Malik Azam. After the conclusion of the case, the trial Court acquitted the accused Hashim hut convicted and sentenced the appellant as already mentioned herein above.
5. I have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. K.M. Nadeem learned AAG for the State. The learned AAG has very fairly not supported the conviction and sentence awarded to the appellant for two very important reasons. Firstly, the case is based on the test identification of the appellant Ex:41 which was held on 23.6.1983 while the appellant was arrested on 3.6.1983. This means the identification parade was held 20 days after the arrest of the appellant and about 4.S months after the incident. Secondly, he submitted that the Magistrate holding the identification parade was not examined in this case.
6. The learned counsel for the appellant is also of the view that the identification parade evidence will have to be ruled out of consideration for yet another reason and that is the memo of identification Ex:41 which is a sealed documents and is usually produced before the trial Court by the Magistrate in a sealed manner and the same is thereafter placed on record as an exhibit through the Magistrate. He has pointed out that in the present case not only the Magistrate has not been examined, but the memo of identification has been produced through Inspector Amanat Javed. It in any case the contents of the memo have not been deposed to and therefore the identification memo Ex:41 will not be admissible in evidence. He next contended that the case of the prosecution rests on the evidence, of four witnesses namely PW Muhammad Shafi, PW Ghulam Sarwar, PW Naris Khan and PW Talib Hussain. These are the four witnesses who are said to have been present at the time of commission of offence. His argument was that in the absence of a proper identification parade evidence, the Court identification of the appellant through aforesaid four witnesses will not be of any consequence as the accused were complete strangers to the said witnesses and in support of his case he has relied on the authority reported in PLD 1981 S. C. 628.
7. I have carefully gone through the entire evidence available on record and I have perused the impugned judgement. I am in agreement with both the learned counsel that the identification parade evidence and the memo Ex:41 will have to be ruled out of consideration for the reasons that the contents of Ex:41 have not been deposed to as the learned Magistrate concerned has not been examined in this case. No reason has been assigned as to why the Magistrate was not examined.
Furthermore, Inspector Amanat Javed was examined and he produced memo of identification Ex:41. But it will not be out of place to mention here that he was examined after the accused had already been examined under Section 342 and 340 (2) Cr.P.C. Though the accused persons after the examination of Inspector Amanat Javed were re-examined under Section 342 Cr.P.C., but the memo of identification Ex:41 was never put to the appellant or he co-accused, with the resulted the appellant never got the opportunity to give is explanation irrespective of the said identification memo. Another reason for cooking askance to the memo of identification is the fact that the appellant was rested on 3.6.1983 under memo Ex:42 while the identification parade took place other 20 days that is on 23.6.1983. No explanation was given as to why the identification parade was held after so much delay. In these circumstances, identification parade evidence is ruled out of consideration.
8. We are now left with the evidence of the four witnesses. It may be mentioned that in a given case where the accused persons are not known either by name or by' tace to the witnesses, in that event, the accused persons must be got 'identified in a test identification parade. It is obvious that in cases where the accused is already known by name or by face, in such an eventuality no identification parade would be required and instead the evidence of the witnesses in Court identifying the accused will be sufficient. In the present case, the accused were not known to the witnesses either by name or by face and therefore it was necessary to get the accused identified through the said witnesses immediately after the accused were arrested, otherwise the Court identification of the accused through the witnesses will not be sufficient in the absence of description and features of the accused. In this regard I may refer to the case law relief upon by the learned counsel for the appellant. In Abdul Sattar & another Vs. The State reported in 1981 SCM R 678 it was observed by their Lordships that "after having rejected the evidence of recovery the question was whether it would be safe to rely on the ocular evidence as admittedly the appellants were complete strangers to the prosecution witnesses. Their Lordships relied on the case reported in AIR 1929 Sindh 149 and agreed with the observation that the evidence of identification of strangers must always be scrutinised very carefully. It was further observed by their Lordships that the two Court below erred in ignoring the discrepancy in the description of the assailants by the witnesses.
9. Keeping in view the Weighty observation may be the Honourable Supreme Court I will now scrutinize the evidence of the four witnesses Muhammad Shafi, Ghulam Sarwar, Naris Khan and Talib Hussain as the appellant was a complete stranger to them. The evidence of these four witnesses regarding the identification of the appellant will have to be scrutinized with great care and caution. In the first instance, the complainant Muhammad Shafi had given a very general type of description in the FIR but when he was examined in the Court, he did not give any description of the accused in his examination in chief but he was cross examined regarding the description of the two persons, who had entered the room where the complainant and others were sitting. In his cross examination he has mentioned one was of black complexion and another of wheatish complexion.
It may be observed that in the FIR the complainant did not mention the said complexion. The second witness Ghulam Sarwar has not given any description but in his cross-examination he has admitted that he was called by the CIA Police on two occasions and he was informed that the accused persons have been arrested. He further states in his cross examination that the identification parade was held 10/15 days after the incident, whereas the actual position is that the identification parade was held 4 months after the incident. The third witness Naris Khan has also not given the description of the culprits and in this regard he has also admitted in his cross examination that he did not give the "hulia" of the accused to the Police. In fact he says that he could not properly see the culprits. However it may be mentioned that according to inspector Amanat Javed, watch of Naris Khan was recovered from acquitted accused Hashim but the same was never produced in the Court nor its nashimama was placed on record. The fourth witness is Talib Hussain who has ;Even a different version then the other witnesses. According to this witness they were sitting in the courtyard when two persons came there and enquired about the presence of one Jabbar Kori. On their negative reply they took out i.e arms and limed at them.. Thereafter the witnesses were taken inside the room and from here the money was "picked up from the cot. This witness has also not given the description of the accused in the cross examination. This witness does not even mow whether the appellant was having a beard on the day of identification or not.
Le also cannot give the exact time of the identification. He also does not know who gave him the name of appellant Saidullah after the identification. It will thus appear that in order to ascertain whether the witnesses had the opportunity to observe the features of the two culprits, it was necessary to give their description is it is only on the basis of said description that the Court could gauge whether he witnesses were in a position to identify the accused. In a case of this nature where no description has been given, it is difficult to believe that the witnesses would be capable of identifying the accused in Court. These four witnesses have It even said in their evidence in Court that they had seen the accused persons ind observed their features and that they could identify them.
10. In the absence of description of the accused persons, delay in the adding of the identification parade, non examination of Magistrate concerned, ion examination of one of the I.O. Muhammad Yar Khan who had arrested the accused and prepared memo Ex:42, the subsequent involvement of the accused in his case creates a doubt regarding the involvement of the appellant in this case, 'possibility cannot be ruled out that the accused persons were shown to the witnesses before holding of the identification parade and therefore, on account of he said reason, perhaps the witnesses were able to identify the accused in Court, aking into consideration all the circumstances of the case, I am of the view that he identification of the appellant in this case was not free from doubt.
11. In the light of my above discussion I allow this appeal and set aside he conviction and sentence awarded to the appellant. The appellant is on bail, his >ail bond is discharged. By a short order dated 5-9-1993 this appeal was allowed, here are the reasons for the same. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.