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Petitioner: BACHA ZEB and another VS Respondent: STATE
Court Name: Supreme Court of Pakistan Judge(s): Rehmat Hussain Jaffery, Shakirullah Jan, Tariq Pervez Title: BACHA ZEB and another vs STATE Case No.: Crl. Appeal Nos, 324 & 325 of 2009 out of Jail Petition Nos, 16 & 86 of 2009 Date of Judgment:2010-01-07 Reported As: PLJ 2011 SC 265 Result: Appeals dismissed
JUDGMENT
JUDGMENT Tariq Parvez, J.--Criminal Appeal No, 324 of 2009 and Criminal Appeal No, 325 of 2009 are the out come of Jail Petition Nos, 1R of 2009 and 86 of 2009 respectively. 2. Two jail petitions were placed before the Hon'ble Judge of this Court for his opinion regarding grant of leave which was so opined and agreed by another Hon'ble Judge of this Court, therefore two petitions were converted into appeal with leave of this Court. 3. Two appellants namely Ghulam Jan and Bacha Zeb were convicted by a learned Additional Sessions Judge, Rawalpindi through judgment dated 29.6.2002 and they were sentenced to 10 years R.I. each under Section 460 PPC. Ghulam Jan appellant was awarded sentence of death under Section 302(b) PPC and to pay Rs,1,00,000/- as compensation to the legal heirs of the deceased and in default to six months S.I. Bacha Zeb appellant was awarded life imprisonment and compensation amount of Rs,50,000/- under Section 302(b) PPC and in default to payment of compensation was to undergo six months S.I. 4. Two separate Criminal Appeals were filed by the two appellants before the Hon'ble Lahore High Court, Rawalpindi Bench Bearing No, 419 of 2002 titled Ghulam Jan vs. The State and Criminal Appeal No, 377 of 2002 titled Bacha Zeb vs. The State. The two appeals and Murder Reference No, 921 of 2002 were heard by the Hon'ble Division Bench of the High Court, and vide judgment dated 25.11.2008 where conviction of both the appellants were maintained but sentence of death awarded to Ghulam Jan was altered into life imprisonment who was brought at par with his co- accused Bacha Zeb and Murder Reference was answered in negative. 5. Facts shortly stated are that on 27.1.2001 at 8.45 p.m. complainant Naveed Ahmad PW-10 his mother Mst. Nazran Sultana PW-11, Mst. Maqbool Jan, their neighbor and Adalat Khan, father of the
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complainant who is deceased of the case were all present in their house. At about 8.45 p.m. Mst. Maqbool Jan wanted to go to her house, therefore complainant allegedly stood up and opened the door of the room where they were sitting in, when two persons both armed with pistols rushed in. The deceased Adalat Khan tried to resist their entry who was fired upon twice by one of the person but missed whereas a single fire was made by the second person which hit the deceased who was carried to the hospital by the complainant but succumbed to the injuries. 6. Prosecution has examined a large number of witnesses but relevant would be the two witnesses who were the occupant of the house namely Naveed Ahmad, PW-10 and Mst. Nazran Sultana, PW-11 the other two important witnesses in this case are Mr. Fakhar-ul-Islam Dogar, Special Magistrate, Kahuta, District Rawalpindi who has appeared as PW-13 and Shah Munaid SI, PW-16 who has conducted the investigation. 7. At no stage at trial nor during the investigation any fact with regard to motive has been introduced nor alleged. 8. We have heard lengthy arguments of learned counsel for the appellants and of learned Deputy Prosecutor General, Punjab and with their assistance have scrutinized the evidence. 9. It is argued on behalf of the appellants that they are falsely charged and falsely involved because it was a blind murder case and the police of Police Station Kallar Syedan, to show its efficiency have involved the two appellants in an untraced case. It is also argued that the two eye- witnesses namely Naveed Ahmad, PW-10 arid Mst. Nazran Sultana, PW-11 would be natural witnesses of the killing of the deceased but they cannot be termed as eye-witnesses qua the participation of particular assailants in the commission of crime. 10.Mr. Fakhar-ul-Islam Dogar, PW-13 who is Special Magistrate and has conducted identification parade, his evidence is challenged on the ground that it suffers from rule of procedure and rule of prudence because number of dummies have not been given who among accused intended to be identified were mixed up. That, the eyewitnesses have not specified the role of individual accused before the Magistrate at the time of identification. It is also argued that test identification parade was held on 08.11.2001, whereas occurrence has taken place on 27.1.2001, therefore after the delay of ten months it will be Impossible for any person to identify the assailants who remained before the eye-witnesses only for few seconds or a minute and so. 11.Learned Deputy Prosecutor General, Punjab, however has argued that neither complainant nor the investigation agency has got any personal reasons to charge the present appellant and that Mr. Fakhar-ul-Islam Dogar, Special Magistrate, PW-13 being a Judicial Officer his testimony has to be given weight and accepted. 12.Undoubtedly Adalat Khan, deceased was killed on 27.1.2001 at about 8.45 p.m. in his own house. The presence of Naveed Ahmad, PW-10 and in more particular presence of Mst. Nazran Sultana, PW-11 wife of the deceased is but natural being in house and at night time. Question however, is whether the two witnesses claiming to be the eyewitnesses were in a position to identify the culprits who have allegedly being identified after ten months of the crime. 13.In this case the crucial point is whether the identification parade was properly held and conducted and whether the two eyewitnesses in the given circumstances could have identified the two assailants. 14.Before we dilute upon the evidence of this case where conviction or acquittal is all dependent on acceptance or rejection of identification parade we first refer to some case law on the subject. 15.In a case reported as Lal Pasand us. The State (PLD 1981 SC 142), the Hon'ble author Judge of the Judgment Mr. Justice Dorab Patel (as he then was) has remarked with reference to identification as was the question involved in this case, "What then is the solution of this harrowing problem? In our opinion, the only safeguard against illegal convictions is that the Judge or Judges hearing the case should be conscious of the dangers inherent in the identification of accused by
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witnesses who are total strangers to them" (emphasis is given by us.) Again in the same judgment the same Hon'ble Judge has observed "However, on the footing that five persons had to be identified, it would have been unreasonable to mix them with fifty persons, because such a large number of persons could only have confused the identifying witnesses. Therefore, the proper course in such cases is to have separate identification parades for each accused. And, no explanation has been given in the instant case for not holding separate identification parades." While concluding the judgment the Hon'ble Judge has observed "Therefore, on the facts of the case, we agree, with the view of the learned Sessions Judge that it would not be safe to rely on the corroboratory evidence of the identification parade on the further ground that the number of strangers mixed with the accused was not in accordance with the rule prescribed by the West Pakistan High Court." Even with regard to some description given of the assailants it was ruled that the description should be such that whether shall give distinguishable in material particular of assailants with specific characteristics not common or general. 16.In a judgment reported as Ghulam Rasool and 3 others us. The State (1988 SCM R 557), it was ruled that "Role of the accused at the time of commission of offence not described by the witnesses -- Inherent defect -- Evidence of witness identifying parade accused in such identification parade lost its efficacy and not relied." This principle was relied upon with reference to case of Khadim Hussain vs. The State (1985 SCM R 721). In the case of Alim vs. The State (PLD 1967 SC 307), the Hon'ble author Judge Mr. Justice A.R. Cornelius, the then C.J. held that "Murder -- Identification of accused -- Witnesses, in particular circumstances of case, at best had only fleeting look at assailant -- Unsafe to put reliance of such statements." In the case of Mehmood Ahmed and 3 others us. The State (1995 SCM R 127) it was held that "Evidentiary identification of accused in the identification parade without attributing to them their role in the crime is of no evidentiary value." 17.We would conclude our reference to the case law by citing this last judgment reported as in the case of Khadim Hussain (supra) authored by renowned, respectable and Hon'ble Judge of this Court Mr. Justice Shafiur Rehman, Judge (as he was) has recorded as under: "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It merely mean that the witness happens to know that accused person. The principle evidence of identification is the evidence of a witness given in a Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight." 18.The above given case law and rules laid down have been given to facilitate ourselves to reach the just conclusion in this case. 19.According to story given by the Prosecution, complainant party were inside the room and no sooner they opened the door two persons rushed, in both armed with pistols and then and there they made fire shots and then decamped. The accused persons were totally strangers. It was night time and even if there was tube-light but in the month of January i,e, winter and as per admission of the prosecution one of the accused had left his `chadar' while decamping, thus, witnesses had very limited time to see the assailants who were seen by them first time in their life. 20.As per evidence of Shah Muniad, Investigation Officer (PW-16) the two appellants were arrested by Muhammad Ilyas, ASI PW9 on 30.10.2001 for a case u/S. 7/21/91 surrender of illicit arms and were handed over to him on 31.10.2001. Identification parade was held on 8.11.2001. Thus with the
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delay of 8/9 days in conducting the test identification parade. The argument that the complainant and his mother were not in Pakistan and were in England and they came to Pakistan on 6.11.2008 is not born out nor supported by any documentary evidence. So much so that complainant was asked to give some documentary evidence like passport but it was not so exhibited nor produced before the Court to confirm their arrival/coming to Pakistan 2/3 days prior to the identification. 21.PW-16 has admitted in his evidence that he conducted the investigation and recorded his diary between 22.10.2001 and 30.11.2001 and admits that he has recorded therein that Bacha Zeb fires missed whereas Ghulam Jan fire hit the deceased. This role of each accused could not have been recorded by him unless given by the complainant at the time of identification parade which is not given therein. 22.Now we come to the identification parade held on 8.11.2001 under the supervision of Mr. Fakhar- ul-Islam Dogar, Special Magistrate, PW-13. It is in his statement that when he went to the Jail for conducting parade, he reached there at 12.30 p.m. and he found PW-16 Investigation Officer of the case alongwith recordand the two identifier& The two identifiers have admitted that they had reached the Adiala Jail at 8.30/9 a.m. and were waiting for the arrival of the Magistrate. If not before, but possibility can not be excluded that during the period they were waiting for the arrival of the Magistrate, they were shown the accused in advance to be identified. 23.It has come in the statement of PW-13 and admitted by PW10 and PW-11 that the two accused were put to identification simultaneously in one identification parade which is against the rule of law as laid down in the reported judgment cited above. 24.The report prepared by Special Magistrate Ex.P.Q. does not give the number of dummy for each of the accused at the time of identification. It does not give the description of dummy as to whether they were of the same structure, age etc. 25.One of the important aspect qua evidentiary value of identification is that the Magistrate admitted by saying that "during the identification parade, PWs. did not assign any role to both the accused." 26.Another objection which can be taken to the procedural defect is that it has come in the statement of the Magistrate that there were two row of the persons amongst when accused were present but these rows were not made by him but were already made by the jail authorities. In such eventuality the authenticity of the identification would be doubtful because it is not the Magistrate who is conducting the proceedings but part of it conducted by jail authorities. 27.Even if the above reasons appears to be carrying not much weight but we cannot shut our eyes and mind to admission made by the Magistrate during the course of his cross-examination that, at the time conducting identification parade objections were raised by the accused persons which he did not record. 28.When hearing the argument we asked learned counsel, for the State as what objections were raised or could have been raised but we found no reply. However, reply is there in the document Ex.PQ itself where the Magistrate has recorded: {{URDU TEXT}} 29.As we have recorded in our proceeding paragraphs that the two eye-witnesses namely Naveed Ahmad, PW-10 and Mst. Nazarn Sultana, PW-11 are the witnesses of the occurrence but their evidence qua the assailants is not at all convincing because of above given defects and reasons in test identification parade. Except for the oral evidence about killing, and if the identification parade evidence is excluded there is no corroborative evidence on the record to connect the appellants in any manner with the commission of crime. 30. We are, therefore have firm view that where identification parade is suffering from multiple deficiencies including the procedural and factual and it being corroborative evidence cannot
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constitute legal evidence in a case of capital charge for maintaining the convictions and sentences. We therefore, allow these appeals of the appellants their convictions and sentences passed by the Courts below are set aside. They are acquitted of the charges and be released forthwith from the Jail, if not required in any other case. Rahmat Hussain Jafferi, J.--I have had the advantage of reading the draft of proposed judgment of my learned brother (Tariq Parvez, J). The proposition of law annunciated therein seems to be correct but the same has been further clarified in the subsequent judgments of this Court. It is well settled that the law should not be static but it should move alongwith the times to meet all the present and future situations, circumstances and challenges. Therefore, it requires modification, clarification and interpretation to keep in touch with the changing times. Hence, the above proposition of law has also undergone such changes, clarification and modification. However, I am unable to agree with the conclusion drawn on the basis of material available on record. 2. The entire case hinges upon the identification of the appellants in an identification test held before Fakhr-us-Salam, Special Magistrate, Kahuta, District Rawalpindi (PW.13). While dilating upon the said point, my learned brother has relied upon the case reported as "Lal Pasand v. State (PLD 1981 SC 142)", with the main proposition that number of dummies mixed with the appellants were not as per ratio of 8 or 9 accused persons. I have gone through the said judgment and found that it is also observed therein that the said rule is not an inflexible rule. The above judgment was considered by this Court in the case of "State v. Farman Hussain (PLD 1995 SC 1)" and at Page 25 thereof it has been observed as under: "There cannot be any cavil with the proposition of law pronounced in the above reports. However, it may be pointed out that as a rule of prudence the Court insists upon having the ratio of dummies eight to ten per accused, but there is. no statutory provision fixing the number of dummies in the Code of Criminal Procedure. It is not an inflexible rule." 3. As regards the role assigned to the accused at the time of identification parade, several authorities have been quoted in support of such proposition, which were delivered up to the year 1995. The basic authority on which the subsequent authorities were based was delivered in the case of Khadim Hussain v. State (1985 SCM R 721). This authority was considered alongwith the case of Saeed-ur-Rahman v. The State (1980 SCM R 271) by this Court in the case of Yaqoob Khan v. State (PLD 1996 Supreme Court 97). It has been observed as under: "We are, therefore, unable to find anything in the two cases relied by the learned counsel for the petitioner, which supported his conclusion that if a witness at the time of identifying a person in the identification parade did not state about the role played by that person in the crime he is precluded from giving evidence in the Court with regard to this specific role in the crime and that if such evidence is adduced at the trial, the same is to be excluded from the consideration. In the case before us, the witnesses who identified the accused in the identification parade, in their evidence before the Court stated in detail the role of each of the petitioners in the crime and as such their evidence was rightly relied by the Courts below." 4. This Court confronted with the similar point in the case of "Solat Ali Khan v. State (2002 SCM R 820)". In that case also the witnesses did not assign any role to the accused at the time of identification parade, except stating that "this is the man", but during the course of evidence in Court, they specified the role of each accused and the Court relied upon the said piece of evidence. Even the question of delay in holding the identification test was addressed to by the Court, as the identification test was held after '530 days of the occurrence. The Court examining the evidence at Page 826 observed as under: "The figure and features of the appellant must have been imprinted on the minds of Mrs. Shahnaz Hamid (PW.4) and Umer Shahid (PW.12) widow and son respectively of deceased Shahid Hamid.
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How they can forget the person who had committed this gruesome act of killing Shahid Hainid alongwith his driver and gunman? It is expecting too much from the complainant to point out the detailed description and features of the accused in the FIR as at that moment she must be undergoing a very traumatic condition." 5. Delay in holding identification test was further examined by this Court in the cases of Muhammad Zaman v. State (2007 SCM R 813) after relying upon the decisions of Asif Masih v. The State (PLD 2001 Supreme Court 398); Lal Singh v. State (2003 SC 506); and Vikram Singh v. Raj Singh (1973) 3 SCC (Crl.) 578), it was observed that "Mere long delay in holding identification test of the accused would not by itself be sufficient to discard testimony." In another case, this Court after having discussed all material points involved in the identification test, has observed in the case of Ali Muhammad v. State (1985 SCM R 1834) as under: "14. As to the second test of corroboration in this case, the strongest item is the eye-witness account coupled with the identification parade. It needs to be clarified that it was not such a case that without approver's testimony the prosecution had no legs to stand upon. The eye-witnesses are highly responsible (two of them are educated men dealing with accounts of the Mills) and the third a watchman. A lot importance is to be given to them. They being independent, is beyond doubt and their presence at the spot is beyond challenge and so is of Siraj Din P.W. The only question is of opportunity to identify at the spot and the capability to identify at the parade after a year. There is no hard and fast rule that a delayed parade due to late arrest /discovery of the culprits is always to be rejected. It depends upon a host of circumstances including the type, witnesses and other factors. In this case they had seen the killing. The killers' features were fixed in their memory due to many reasons some of them have been recorded in the High Court judgment with which we agree on this point. Regarding the formalities at the identifying parade suffice it to observe that all necessary precautions were taken. So much so that the suspects did not raise any-objection before the Magistrate prior to the parade. They thought that they had, in the arrangements made for the parade by the Magistrate, a chance of not being identified. It was only after the parade that protests were made. Similarly there is no hard and fast rule that even where sufficient number of under-trials in the jail is not available, the parade cannot be conducted or that it should not be conducted at all or that if conducted it would be valueless. This also depends upon all the relevant features involved in the case. The delay per se, particularly where the accused are apprehended after a long time, would not prejudice the capability .... if otherwise enough, of the eye-witnesses to identify the culprits. It is not uncommon that even fleeting glimpse of a person, specially placed in a position of immense importance, would be revived in memory after long time, provided the bond of event and embedding in memory were of permanent character. In this case they were so. The point regarding failure of the eye-witnesses to utter same words at the time of pointing out a culprit at a parade, though of some importance is not of any inviolable right or rule. That also depends upon the facts of each parade and the type of witnesses. In this case they were, as already indicated, highly responsible persons. They already stood committed in their statements recorded in the lawful proceedings that they were there in the parade so as to identify the culprits of this case. The description of the culprits in the previous statements of the witnesses in this case is the one which might be expected in a normal day-light dacoity. The discrepancies pointed out at the bar do not furnish enough reason for rejecting the identification. The parade in a case like the present one is only a test regarding a corroboratory factor. Otherwise the substantive evidence is the statement of the eye-witnesses and the identification done during the deposition at the trial. This evidence in the present case is enough for conviction independent of the availability of other equally valuable evidence." Reliance is also placed on the case of Murid Abbas v. State (1992 SCM R 338). 6. My learned brother further observed in Para 19 of the judgment that witnesses had a limited time
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to see the appellants, who were seen by them for the first time in their life. In this connection, I would simply refer to the statement of the complainant Naveed Ahmed (PW.10) and Mst. Nazran Sultana (PW.11) to the effect that when the complainant opened the door of the room two persons armed with pistols entered into the room, the deceased came forward but one of the accused viz. Bacha Zeb fired two shots but the same were missed then the appellant Ghulam Jan fired a straight shot which hit the deceased on his chest and he fell down. Thereafter, the complainant tried to apprehend both the accused persons but could not succeed. However, Chadar (Ex.P4) of one of the accused and one piece of arm of shirt (Ex.P5) of the other accused could come in his hands and thereafter the accused ran away. This chain of circumstances plainly shows that the witnesses had sufficient time to see the culprits in the electric tube light clearly, thus the witnesses had not merely glimpses of the culprits but saw them clearly for sufficient amount of time. Therefore, the features and imprints of the accused must have been printed on the minds of the witnesses. 7. As regards the joint identification of both the appellants together. It is pointed out that in the case of Fazal Hussain (supra), two accused were arrested on 29.01.1994 and were put to identification test on 26.02.1994 where the two PWs in presence of the Magistrate identified the accused…
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