' FAZAL KARIM J.--This is an appeal from the judgment of the Lahore High Court, Lahore dated 16-12- 1991 whereby the appeal of the appellant, Muhammad Arshad, against his conviction and sentence recorded by a judgment of the Additional Sessions Judge, Kasur dated 7-6-1988 was dismissed with the direction that "the appellant would have the benefit of the provisions of section 382-B, Cr.P.C." and that "whole of the fine, if realized, shall be paid to the heirs of the deceased as compensation". The learned Sessions Judge had by that judgment convicted the appellant under section 302 of the P.P.C. And sentenced him to life imprisonment and a fine of Rs,10,000 or in default thereof two years' R.I. For the murder of Jamal Din. Half of the fine if realised, was directed to be paid to the heirs of the deceased as compensation.
2. Jamal Din died a violent death at 2-00 a.m. On 9-8-1986 when he was asleep at an open place near his house in Chak No, 30 of Balloki within the limits of Police Station Pattoki. The autopsy on his dead body was performed at 11-00 a.m. On the same day and the post-mortem examination report shows that the death was the result of a cut wound 4 c.m. x 1.5 c.m. On the right anterior part of neck, middle part. In the opinion of the doctor, "the deceased died immediately after receiving the injuries". The incident was reported to Saeed Hussain, Inspector at 3-45 a.m. On the same day at Bus-stop Ghaga by Inayat (P.W.3). The latter was married to a sister of the deceased. The prosecution case as laid in Inayat's statement Exh. PB was as follows: Inayat had a joint business with the deceased man, who had his residential house in the north-western side of the village.
Jamal Din had made an Adda near his house and he, Inayat, worked with him there. On the night of occurrence, he and the deceased Jamal Din were sleeping on separate cots. An electric bulb was burning. Inayat had something wrong with his stomach and could not sleep. At about 2-00 a.m., he saw the appellant armed with a hatchet near the cot of the deceased. Within his view the appellant hit the deceased with his hatchet. The blow fell on the deceased's neck. The deceased gave a shriek and that attracted Muhammad Hanif, Chowkidar and Gulab Din who saw the incident taking place. The appellant ran away with his hatchet. Jamal Din died at the spot.
3. The motive was that the deceased's Adda was part of the Shamlat Deh; he had it in his possession since 1947. The appellant and his father Feroze however treated that place as their property. This had led to a dispute between the deceased and Feroze 15 or 16 days earlier. The matter was referred to Muhammad Anwar Lambardar and he had tried to resolve the dispute. The appellant had however been extending threats to the deceased.
4. Saeed Hussain, Inspector (P.W.7) was the S.H.O. Police Station, Pattoki. He appeared at the trial as P.W.7. He stated that he happened to be present at the bus-stop in connection with another case when Inayat met him at the bus-stop and made statement Exh.PB. He reached the spot, prepared the injury statement and inquest report in respect of the dead body and sent the dead body to the mortuary. He took various blood-stained articles into possession, had a site plan prepared and arrested the appellant on 20-8-1986. According to him the appellant led to the recovery of a blood-stained hatchet . From his house on 31-8-1986.
5. At the trial, the prosecution called nine witnesses in support of its case; of them, Inayat (P.W.3) and Muhammad Hanif, Chowkidar (P.W.4) gave the eye-witness account of the incident.
Muhammad Anwar Lambardar (P.W.8) testified to the recovery of hatchet P-3 at the instance of the appellant from his father's house; he also gave evidence that the deceased man was in possession of "some place" and the appellant's father claimed that that belonged to him. The dispute was referred to him and he had resolved it in favour of the deceased. At that time, the appellant had threatened the deceased "with dire consequences".
6. In his statement under section 342 of the Cr.P.C., the appellant denied that he and his father had had a dispute over a plot of land with the deceased man or that it had been decided in favour of the deceased by the Punchayat. He denied also that he had killed the deceased or had led to the recovery of blood-stained hatchet P-3. He did not enter into the witness -box to give evidence on oath; he did not call any evidence in defence either.
7. The learned trial Judge believed the testimony of Inayat P.W., who, so observed the learned trial Judge, had been supported by Muhammad Hanif Chowkidar (P.W.4). In the opinion of the learned trial Judge there was no question of "mistaken identity of the accused". The learned trial Judge also believed the recovery of hatchet P-3 from the appellant. He, therefore, held the appellant guilty under section 302 of the P.P.C. But as he was a young man "and is of eighteen years age and is a student", he was, so thought the trial Judge, "entitled for the leniency in the matter of sentence".
8. The learned Judge in the High Court also believed the eye-witness account, which was in his opinion, "further corroborated by the motive part of the story, the recovery of the blood-stained hatchet at the instance of the accused and the prompt lodging of the F.I.R."
9. Leave to appeal was granted because the time of occurrence was night time; "Inayat P.W.3 woke up on the cry of the deceased" and the question was "whether the accused-petitioner stood still to be seen and also of Muhammad Hanif Chowkidar P.W.4", and recovery of hatchet was effected 23 days after the occurrence and the "motive alleged would be with the father rather than the son petitioner".
10. Learned counsel for the appellant argued that the night of occurrence was a dark night; that the prosecution had failed to prove that there was any source of light available to enable the eye- witnesses to identify the culprit; that the presence of Inayat P.W. At the time of occurrence was extremely doubtful and it was also open to grave doubt that Muhammad Hanif Chowkidar had reached the spot on hearing the shriek of the deceased and that he had identified the appellant as the culprit. Learned counsel for the State was however, of the view that the learned trial Judge and the learned Judge in the High Court had rightly believed the prosecution story.
11. There is no question that the night of occurrence was dark night. That the culprit, whoever he was, had selected a dark night for the perpetration of the crime, shows that he was not a dare- devil type and also that he wanted to conceal his identity and so far as it lay in him, avoid recognition. Inayat P.W. Was not an ordinary resident of the place of the incident and Muhammad Hanif P.W was a chance witness. Two questions, therefore, arise: (1) Had the P.Ws., Inayat and Muhammad Hanif, seen the culprit hitting the deceased or immediately before or after he had hit him? And (2) if so, had they been able to identify him as they claim to have?
12. As to the first question the reason that Inayat gave for his presence at the place of occurrence was that he had joint business with the deceased. He was married to a sister of the deceased but did not say in his statement which was recorded on 19-3-1988 that he was Ghar-Jawai. It appears that the prosecution was conscious of the weakness of Inayat's claim that he used to sleep there because he had joint business with the deceased. Therefore, when Muhammad Anwar (P.W.8) appeared to testify on 15-5-1988, he said that "Inayat complainant is 'Ghar-Jawar and that "at the time of occurrence, he has no separate house". He was belied by Inayat P.W. Himself who said that he had his house "inside village Abadi towards western side of the village" and that his house and the Haveli of Jamal Din deceased were adjacent to each other. It will be noticed that in the site plan, the house of Inayat was not shown anywhere in the neighbourhood of Jamal Din's house. The Investigating Officer Saeed Hussain (P.W.7) went to the length of saying that Inayat P.W was not the resident of village Chak No,30 Balloke (that being the village where the occurrence took place).
Jamal Din deceased was asleep when the culprit hit him in his neck and so should the other inmates of the house, and we can assume for the sake of argument that Inayat was one of them, have been. Inayat said in his statement before the police that he was suffering from some stomach trouble and was not fully asleep. Neither in his statement before the police nor in the witness-box did he explain what that stomach trouble was. He said that he saw the appellant armed with a hatchet standing near the cot of the deceased. That was obviously before the appellant had hit the deceased and Inayat's natural and immediate reaction would have been to raise an alarm and to challenge the culprit. He did no such thing. What he said was that it was the deceased Jamal Din who raised a noise after he had been hit. Muhammad Hanif P.W. Stated that he saw Inayat P.W. Sitting on his cot when he reached the spot. According to him the mother and wife of the deceased also reached simultaneously with him. He went so far as to say that "the wife of the deceased and his mother had also seen the occurrence and they raised the alarm". It is obvious that the mother and wife of the deceased were as inmates of the house of the deceased the natural witnesses. Yet the Investigating Officer did not so much as record their statements. As observed above Muhammad Hanif P.W. Was a chance witness; the chance that brought him to the place of occurrence was that he was having a round of the village with Gulab P.W. (given up); he according to the site plan was at a distance of 32 feet from the cot of the deceased. According to him he saw the appellant standing near the cot of the deceased; within his view the appellant gave a hatchet blow to the deceased in his neck. Surprisingly neither Inayat nor Muhammad Hanif Chowkidar who was accompanied by Gulab P.W. Chased the culprit. If they had identified the culprit to be the appellant, then it would have been natural for them to chase him up to his house in order to catch him with the blood-stained hatchet. That would have been the natural conduct of a Chowkidar; and as he was having a round of the village with a view to protecting the residents from thieves and other criminals, he must have been carrying at least a `bang'. The appellant was not carrying a fire-arm and if an attempt had been made to catch him it would not have proved to be a very difficult task. All these circumstances in my view combine to make the claim of Inayat and Muhammad Hanif P.Ws. That they had seen the appellant killing the deceased doubtful.
13. Even if the claim of Inayat and Muhammad Hanif that they were present at the time of the occurrence and had seen the culprit hitting the deceased be accepted, it is obvious that the crux of the prosecution case is the visual identification evidence given by them. In England, judicial experience has established that the identification evidence is one of the categories of evidence "which are, by their very nature, potentially unreliable and in respect of which, in order to avoid the serious danger of wrong convictions, special warnings and directions have to be given to juries".
This was brought into sharp focus by two much publicized cases of Dougherty and Virag "where a miscarriage of justice was established, despite the apparent strength of the identification evidence". Miscarriage of criminal justice, affecting as it does the life and liberty of persons, being a very serious matter, and the country being England, there was great public concern. That concern found expression first in the Eleventh Report of the Criminal Revision Committee, Evidence (General) (Cmnd) published in 1972. That was followed by the appointment of a Committee under the Chairmanship of Lord Devlin to consider identification evidence in criminal cases. In the light of the recommendations of that Committee, Lord Widgery, CJ, giving the judgment of the Court of Appeal in "R v. Turnbull" (1976) 3 All ER 549 laid down the guidelines which are, by now, well-known and are consistently applied in England and in a number of Commonwealth countries. Those guidelines have been explained in the recent decisions of the Privy Council in "Scott v. The Queen"
(1989) A.C. 1242, "Junior Reid v. The Queen" (1990) 1 A.C. 363, "Palmer v. The Queen" (1990) 40 W.I.R.
282 and "Beckford v. The Queen" (1993) 97 Cr. App. R.
409. According to those decisions:-- "Whenever the case against an accused person depends wholly or substantially on the disputed correctness of one or more visual identifications of the accused person, the Judge should warn the jury of the danger of convicting and of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The Judge should also explain to the jury the reason for the danger and the special need for caution. The reason required to be explained is that experience has shown that visual identification (even by way of recognition) is a category of evidence which is particularly vulnerable to error and that no matter how honest or convinced the eye-witnesses may be as to the correctness of their visual identifications and no matter how impressive and convincing they may be as witnesses, there is always the possibility that they all might nevertheless be mistaken in their identifications."
(See Freemantle v. The Queen (1994) 1 WLR 1437, 1439).
14. It was observed in the Eleventh Report of the Criminal Law Revision Committee, referred to above, that "that the need for the warning was not limited to cases where the accused was previously unknown to the witness because, even where they are known to, each other, there may be a danger that the identification is mistaken--at least if the witness had only a limited opportunity to observe the offender". (These observations were noticed in Junior Raid case at page 97).
15. The principle to be extracted from the decided case thus is that the evidence of visual identification is one of the categories of 'suspect evidence' and that ordinarily it is not safe to convict on the basis of such evidence without corroboration. Indeed, in exceptional circumstances, that is, where the evidence of visual identification is of exceptionally good quality, such as, where the offender was known to the witness, there was sufficient light, the witness had had an unobstructed view of the offender and there was a dialogue between the witness and the offender, the evidence may be acted upon.
16. I can see no reason why we should not benefit from "the accumulated judicial experience" referred to above. If anything, the need for caution here is greater than in England.
17. It has been seen that the light which according to the prosecution had enabled Inayat and Muhammad Hanif P.Ws. To identify the appellant as the culprit was the light of an electric bulb.
There was no evidence that there was a regular electricity connection in the house of the deceased. The site plan shows that the electricity bulb which provided the light was hanging by a bamboo stick. This rather shows that the electricity bulb was a temporary arrangement. The Investigating Officer did not even perform the formality of taking the bulb and the bamboo stick into possession. He did not check up the meter from where the light was connected with the house of the deceased; he did not find out wherefrom the deceased had arranged for the electricity supply to his house. It is, therefore, doubtful that the electric supply was available or that a bulb was burning at the time of the occurrence. It appears that the infliction of the only blow by the culprit to the deceased must have been a matter of a minute or so. Inayat P.W. Admitted that "the accused came with hatchet immediately inflicted blow when I saw him standing by the cot of the deceased". It was, therefore, a case of hit-and-run. Inayat P.W must have had only a fleeting glance at the culprit and obviously Muhammad Hanif P.W. Had even a more limited opportunity of observing him if the presence of a lighted bulb is doubtful, as I think it is, then even if the Inayat and Muhammad Hanif P.Ws. Are regarded as otherwise honest persons, they might nevertheless have been mistaken in the identification of the culprit. The fact that Inayat P.W. Had reported the incident to Saeed Hussain, Inspector at 3-45 a.m. Should not, in my opinion, be taken on its face value, for the report was not at the police station. It was in the evidence of Muhammad Hanif P.W. That when the police. Arrived Muhammad Anwar Lambardar was with the police and Muhammad Anwar P.W.
Admitted that the police arrived at the spot at 8-00 a.m. As to the recovery of blood-stained hatchet from the appellant, that was on 31st August, 1986 from his house; it makes great demand upon one's sense of credulity to believe that he had kept the hatchet safely in his house with the tell-tale blood on it for so long. Neither of these pieces of evidence could, therefore, be safely used as corroborative evidence. The motive incident might well have misled Inayat and Muhammad Hanif P.Ws. Into thinking that the culprit was the appellant and in the circumstances of the case that too could not serve as corroborative evidence.
18. For these reasons, I hold that the case against the appellant was not free from reasonable doubt. I would, therefore, accept the appeal, set aside the conviction and sentence and acquit the appellant. He shall be released forthwith unless required in any other case.
' I agree subject to a note appended hereto.
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' AJMAL MIAN, J.
(Sd.)
' FAZAL KARIM, J.
' I agree with the conclusion but prefer the view expressed in case of Farman Hussain (PLD 1995 SC 1).
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' MUKHTAR AHMAD JUNEJO, J AJMAL MIAN, J.-- I am in full agreement with the judgment proposed to be delivered by my learned brother Fazal Karim J. In the above criminal appeal. However, I have some reservations as to the evidentiary value of the visual identification referred to in the proposed judgment. I have expressed my views in the case of State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1). I adhere to my above views. With the above reservations, I agree with the proposed judgment.
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AJMAL MIA1(1, J n