JUDGEMENT DR. GHOUS MUHAMMAD, J.- This appeal has arisen out of judgment dated 20.07.1993 passed by the teamed Judge (Special Court) S. T. A;, Nawabshah (Mr. Noor Muhammad Shaikh) in Cr. Case No. 55/1995 whereby he sentenced and convicted the appellant and the fourteen co-accused to undergo imprisonment for life, forfeiture, of their properties to the extent of Rs. 1,00,000/- each or in default to suffer further R.1, for three years.
2. The F.I.R, for the offences under Sections 302,307,353 365-A 148, 149, P.P.C, and 13-D, Arms Ordinance was lodged by the driver of Blue Lines Bus Service. He alleged that he drove his bus loaded with passengers at 4.30 P.m. On 26.11.1990 from Larkana and when he reached Aliabad at 8.30 P.m. He had to slow down the speed because a truck were crossing at that place. However, as soon as the truck passed away firing started at the bus from both sides of the road and he was compelled to stop the bus which was surrounded by 17/18 armed persons. He was directed by for persons to open the door and thereafter all the culprits entered into the bus. They robbed the passengers and also directed them alongwith the complainant and the cleaner to move towards the canal side. They also snatched Rs. 8,000/- from the complainant. After about 1 'A hour when they reached near the 'bund' they saw light of some vehicles. The dacoits asked the abductees to sit on the ground and some of them went ahead. The dacoits noticed that the law enforcing agencies were following them. This was followed by exchange of firing from both the sides for an hour. During this period the passengers started running towards the law enforcing agencies but two of them fell down and sustained fire-arms injuries. The law enforcing agencies narrowed their circle and threw shells of light and identified the culprits who managed to escape in spite of chase by the Rangers and police. All the released abductees were brought at the Police Station and the FIR was lodged by the driver. The police also secured one dead body from the place of encounter and one injured namely Nizamuddim Rajput was referred to hospital at Kazi Ahmed.
3. After usual investigation the case was challaned. The learned trial Court fronted the charge against the appellant and the the 14 absoonding accused on 13.10.1991.
4. The appellant pleaded not gulty to the charge and calimed to be tried. The prosecution exmined seven witnesses P.W. 1 khan Muhammad is a mashir. He produced mashirnama of exchange of firing, securing of dead body and injured persons from the place of incident. He also produced the inquest report and mashirnama of arrest of the appellant. He took part in the identification test of the suspects invoiced in this case. He also arrested the appellants and produced the mashirnama (Ex. 3). P.W. 2 Allah Bux is the Asstt. Mukhtiarkar and TCM Daulatpur who had supervised the identification test parade held on 19.6.1991. He produced the mushirnama which was prepared by him. P.W. 3 Dr. Sikandar Ali was Medical Officer of Rural Health Centre, Kazi Ahmed. He conducted post-mortem examination on the dead body which was brought by P.C. Abdul Rahman of P.S. Kazi Ahmed, and he produced post-mortem report. P.W. 4 Ghulam Nabi is the complainant. P.W. 5 Sikandar Ali was SHO, Kazi Ahmed on 26.11.1990. On receipt of information from SBO Daulatpur that a bus was being robbed by some culprits at Aliabad he rushed towards that place with police party and then alongwith other members of the law enforcing agencies they followed the treck and finally when they reached at bund the firing was exchanged. The police party threw two light bombs on the opponents said and saw that there were 17/18 dacoits who were firing at the Police party. P.W. 7 Muhammad Yousuf was passenger in the bus who was abducted alongwith the other passengers. P.W. 8 SHO Siraj Ahmed had partly investigated the matter.
5. The appellant in his statement recorded under Section 342 Cr.P.C, denied the prosecution allegations and pleaded innocence. He did not produce any evidence in defence but he examined himself on oath and stated that he had no knowledge about the alleged incident and prior to this case he was not involved in any other case but in cross-examination he admitted the suggestion that for cases of abduction were pending against him in the trial Courts.
P.W. 1 AS1 Khan Muhammad was SHO, Kazi Ahmed Police Station on 26.11.1990. He deposed that at about 8. 30 p. m. On that day SHO Kazi Ahmed Sikandar Ali received telephonic message that some dacoits had blocked the National Highway near Aliabad and were robbing the passengers, Therefore, on the direction of the SHO this witness and the police party went to that place where they found one empty bus of Blue Line Service and some persons were available there. According to them all the passengers were abducted by the dacoits alongwith driver and the conductor of the bus. In the meanwhile two vehicles carrying Rangers also arrived there. The Police party and the Rangers followed the dacoits through link road and when they reached at the protective bund they came under heavy firing from the dacoits. According to this witness the police party fired three light bombs in the light of which they saw 17/18 culprits who were armed with rifles. Therefore, the police also fired for about half an hour and then the encounter ended. The 14/15 abductees also informed the police party that during encounter some passengers had sustained injuries and they took the police party to the place wherefrom the passengers were abducted. There the police party saw one person lying injured and the other one had died. The injured was taken to the hospital and the dead body of the deceased was shifted to Kazi Ahmed, Hospital. The S.H.O, himself a alongwith his police party and the Rengers followed the docoits towards the jungle. This witness prepared mushirnama of wardat at the spot where the injured was lying in presence of mashirs Zulfiqar Ali and Ali Akbar Dakery (Ex. 10-A) and the mashimama of the place where the bus was' parked (Ex.10- D). He also identified and picked out the present accused as one of the culprits in the. Identification test. In cross-examination he stated as follows: "At the time of encounter I had seen the accused at a distance of about one jarib. The night of the incident was dark but we have seen the faces of the accused in the light of light bombs. It is. Not a fact that the accused was previously known to us as he used to visit Kazi Ahmed Police Station."
5. P.W. 2 Allah Bux was Assistant Mukhtar and T.C.M Daulatpur on 19.6.1991. On that day Police of Kazi Ahmed Police Station produced the appellant before him for holding identification test. This witness kept the appellant sitting in his office wherefrom he was not visible to any person. After fifteen to twenty minutes he was informed ley the plaice that the witnesses had reached the office for identification. He then arranged dummies from amongst the persons who were available there. He mixed the appellant after removing his hand cuff with the nine dummies add called AS1 Khan Muhammad through his peon for identification of the appellant. He identified him properly. Then another assembly of fifteen persons including the accused was formed and the accused stood at different members from the eastern side. This witness then called H.C. Muhammad Ilyas, who also picked out the appellant. Likewise the remaining witnesses, namely, H.C. Ghulam Muhammad and P.C. Bahar also picked out the appellant from different lines. Thereafter in the presence of mashirs Muhammad Bux and Ali Zaib the learned Magistrate prepared the mashimama (Ex.6-A). In cross- examination he stated that he had no information as to where from and when the appellant was arrested. He denied the suggestion that the police, the P. W.s and the accused were brought in his office together. He also denied the suggestion that no identification test was held and the mashimama was prepared in his office. P.W. 3 Dr. Capt. Sikandar Ali was Medical Officer at Rural Health Centre, Kazi Ahmed. He received a deadbody of unknown person for postmortem on 27.11.1990 at 1.00 p.m. Through P.C. Abdul Rahim of police station Kazi filmed. After post-mortem examination he issued certificate (Ex.8A). He was not cross-examined by learned defence counsel.
P.W. 5 SIP, Sikandar Ali was SHO Kazi Ahmed Police Station on 26.11.1990. He was informed by SHO Daulatpur that a robbery had taken place near Aliabad. Therefore, he alongwith his subordinate police staff went towards that place in their official vehicle. As soon as they reached there they saw one bus lying abandoned and a lay man was sitting there. He informed the police party that after dacoity the passengers of that bus were taken away by the culprits on foot towards western side.
In the meanwhile two vehicles of Rangers who were on patrol duty also reached there and then they all went in search of the passengers. At about 9.30 p.m. When the law enforcement agency reached at the bund they were fired upon by all the dacoits. The police party and the Rangers also returned fire at the culprits. According to this witness they also threw two light bombs in the light of which they saw that there were about 17/18 dacoits who were firing at them. During the encounter about 15/16 abductees managed to escape towards the police side but two of them had sustained injuries. One of them died on the spot while the other one disclosed his name as Nizamuddin Rajput. AS1 Khan Muhammad took the passengers and the injured as well as the deadbody to the Police Station. This witness and the remaining members of the law enforcing agencies followed the dacoits in the jungle but after staying there for 2/3 days they returned and could not find any trace of the culprits. On 5.12.1990 he was transferred from P.S. Khan Aimed, therefore, for the purpose of remaining investigation he handed over the case papers to SHO Muhammad Aslam Barani P.W. 6 Bahar Ali was police constable posted at Kazi Ahmed Police Station. He also supported the statement of P.W.5 SIP Sikandar Ali but he deposed that during the encounter the police party throw light bombs on the light of which he had seen the faces of all the accused persons who were 17/18. He also deposed that the appellant was one of the culprits involved in the exchange of firing with police. In cross-examination he stated as follows: "At the time of encounter the dacoits were at a distance of about 25-30 paces from us I had consumed 32 bullets of semi-Auto-matie rifle. The dacoits were spread over an area of 35 paces from every ne of them."
P.W.7 Muhammad Yousuf was one of the passengers who were abducted by the dacoits. He deposed that there were twenty five passengers in the bus and the daooits robbed him of Rs.
2,200/- and one watch. He also stated that firing was exchanged between the police 'and Rangers as well as dacoits. According to him he saw two dade bodies of passengers and after searching his cousin Ali Akbar they took shelter in the nearly village. This witness was also not cross-examined by the learned defence counsel.
7. The mainstay of the prosecution in this case are the following pieces of evidence: .
(a) Ocular testimony
(b) Medical and circumstantial evidence.
8. There is no doubt that the incident of jobbery and abduction as alleged took place on 26.11.1990 at 8.30 p.m. And thereafter the passengers alongwith the driver and cleaner of the bus were abducted and kept in custody lay the culprits till the encounter with the law enforcing agencies took place on the same night. There is also no denying the fact that the culprits were strangers to the prosecution witnesses and the dacoity/abduction and exchange of firing took place in dark night.
9. So far the ocular testimony is concerned, the private witnesses namely, complainant Ghulam Nabi, the driver and Muhammad Yousuf one of the passengers have not supported the prosecution version P.W. 4 driver, Ghulam Nabi even went to the extent of deposing in his examination-in-chief that the faces of the dacoits were muffled as such he could not identify them although from the beginning to the end he had the opportunity to recognise them. Therefore, evidence of these witnesses is of no help to the prosecution. Now, there remains three witnesses, namely AS1, Muhammad (P.W.1) and S.I.P. Sikandar Ali (P.W.5) or well as P.C. Bahar Ali (Ex.6).P.W.I deposed in his cross-examination that he saw the accused at a distance of about one such in the' light of light bombs. P.W.6 stated that when the police party throw light bombs he had seen faces of all the accused persons who were firing at the police party but he has not given the approximate number of the culprits.
10. The crucial question is whether in dark night when the police party was engaged in encounter was it possible for the witnesses to have identified the culprits. It would be significant to note that P;W.4 Ghulam Nabi as well as P.W.7 Yousuf have nowhere deposed that the police threw light bombs on the dacoits. Had this been a fact they could have conveniently said so in their statements. Nevertheless, assuming that the police threw two or three light bombs on the dacoits it is unbelievable that the P.Ws, could have identified the unknown culprits from a distance of about 150 feet in a case of dacoity followed by encounter where the source of identification was only 2 3 light bombs. In such a case where the only evidence is of identification the question of light is of paramount importance. They should always be approached in a careful and judicious manner and not in an unintelligent and wooden manner as has been done by the learned trial Court. When the dacoits and the police come closer during the encounter at a place like jungle in dark night with the natural fear and confusion which the presence of dacoits and firing creates it is not possible that the police would be in a position to be careful to notice the features of the dacoits.
11. Even if the two witnesses are believed that they have spoken the truth that they saw the faces of 17/18 persons it is not possible to accept their version having recognized the appellant as one of the culprits particularly when he was a stranger for them and had no distinctive mark as to his appearance to fit his features indelibly upon the minds of the witnesses, Therefore, no reliance could be placed on the evidence of such witnesses.
12. Sa far the medical evidence is concerned this only supports the prosecution that during encounter one unknown person died on the spot due to firearm injury. But nowhere if has been established that he died due to the firing of the appellant or his accomplices.
13. Now there remains only the evidence of identification test which took place on 19.6.1991 under the supervision of T.C.M. And Asstt Mukhtiarkar Allah Bux. The mechanism of identification proceedings are well known and does not require repetition. Reference in this regard may be made to rules 26.7, 26.32 and also rule 27.25 (Vol.III) of the Police Rules 1934. However in order to ensure that the proceedings are properly conducted and are entirely above suspicion it is essential that the rules and the principle governing the holding of identification test parade should be strictly followed. So far as the identification of persons is concerned, it is a very weak type of evidence the value of which is easily destroyed if there is any suspicion that the conduct of the investigation agency was not absolutely above hard. Therefore, precautions are necessary to conceal the identity of the accused while he is being removed from one place to the other and it is also the duty of the police that all necessary steps should be taken to ensure that the accused should not be seen by the witnesses before the identification test parade. The police officer who arrests the accused should get his face covered and take him to the police station in that state, In the police station the lock-up in which such an accused is kept should be covered with a curtain so that no one is able to see his face. When he is taken to Court or to jail his face should be kept covered, In jail also no outsider should be allowed to see his face. All these precautions should not only be taken but should be proved to have been taken. That these precautions were taken should be recorded in official records like, the general diary of the police station and the jail register and the some should be produced in Court. In the absence of such evidence, no value can be attached to the identification of an accused person made by a witness. In other words it is the duty of the prosecution to establish duripg the trial that every necessary precaution was taken to ensure fair identification. In the instant case the accused was arrested on 19.6.91 and he was put to identification test on the same day. However, as was rightly pointed out by the learned counsel for the appellant the mashir of arrest and mashir of identification are the same pe/sons and strange enough the scribes of mashirnamas of arrest (Ex.3-E) and identification (Ex.6A), is also the same which indicates that the mashirnama of identification was prepared by P.W. 1 (AS1 Khan Muhammad) and not by the Assistant Mukhtiarkar and T.C.M., Daulatpur (P.W.2). Tates proves that the identification test parade was treated as a routine formality by the prosecution and such practice deserves to be deprecated. No reliance can be placed on such a mashirnama of identification, In a original trial, however, intriguing may be the facts and circumstances of the case the charge framed against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The learned trial Court lost sight of this well- settled principle of criminal jurisprudence while evaluating the evidence led by the prosecution.
The upshot of above discussion is that the prosecution has miserably failed to prove the charge against the appellant. By a short order on 22.5.1995 we had allowed this appeal and reversed the judgment of the trial Court and acquitted the appellant.
The above are the reasons for the same.