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Petitioner: SIKANDAR alias SIKOO VS Respondent: STATE
Court Name: Federal Shariat Court Judge(s): Syed Muhammad Farooq Shah, Shaukat Ali Rakhshani Title: SIKANDAR alias SIKOO vs STATE Case No.: Jail Criminal Appeal No.20/I of 2018 Date of Judgment:2019-05-10 Reported As: 2020 YLR 948, PLJ 2019 Cr.C. 1361 Result: Appeal accepted
JUDGMENT
JUDGMENT Shaukat Ali Rakhshani, J.--Through this judgment we intend to dispose of Jail Criminal Appeal No.20-I of 2018 filed by appellant Sikandar alias Sikoo, preferred against the judgment dated 17th of April, 2018 ("Impugned Judgment") authored by learned Additional Sessions Judge Lesbela at Hub ("Trial Court") in case F.I.R No.85/2015 (Ex.P/14-A) registered with Police Station Hub City, District Lesbela for the offences punishable under Section 17(4) of Offences Against Property(Enforcement of Hudood) Ordinance, 1979 (VI of 1979) ("Hudood Ordinance") whereby the appellant was convicted under Section 398 of the Pakistan Penal Code [Act XLV of 1860] ("Penal Code") and sentenced to suffer seven years R.I with fine of Rs.30,000/- and in case of default of fine to further suffer eight months S.I as well as under Section 302(b) of the Penal Code and sentenced him to life imprisonment with further order to pay compensation of Rs.200,000/- (Rupees two lacs only) as provided under Section 544-A of the Code of Criminal Procedure [Act V of 18981 ("The Code") to the legal heirs of the deceased Ludha Ram inclusive of the benefit of Section 382-B of The Code. The co-accused persons namely Baboo and Hubdar were found guilty for the attempt to commit robbery at the shop of the deceased, therefore, they were convicted under Section 393 read, with Section 109/34 of Penal Code and sentenced to suffer three years R.I each with fine of Rs.20,000/- each and indefault of payment of fine to further suffer six months S.I with benefit of Section 382-B of The Code, whereas the case file was kept in dormant till the arrest of the proclaimed offender Dildar son of Abdul Hameed. Co-convicts Baboo and Hubdar have not filed any appeal in this Court. 2. The instant jail criminal appeal has been received from Honble High Court of Balochistan, Quetta vide order dated 19th of November , 2018 for want of jurisdiction, which was time barred, which was condoned on 20th of December , 2018.
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3. Aneel Kumar complainant (P.W.1) is the son of the deceased and was at his home at the time of the occurrence, who was informed by his younger brother Raja (PW.2) through telephone at 7.45 p.m that three unknown culprits came into their shop for decoity and made fire upon their father . According to the complainant (P.W.1), he rushed to the shop where his father had received fire-arm injuries on his neck, who had been taken to Zahid Medical Centre, wherefrom his father was further shifted to Ghulam Qadir Hospital Hub by them but his father succumbed. He added that his brother told him that three culprits had come on a motorcycle, amon gst whom one remained seated on the motorcycle whereas two of them came at the shop pretending to be custom ers and asked for the pries and then aimed pistol at his father and asked to hand over the cash. In the meanwhile on the hue and cry of his father Ludha Ram one of them fired at his father which hit him on his neck whereafter both the said culprits ran away on foot. Complainant(P .W.1) maintained that both the culprits can be identified by his brother Raja (P.W.2). As such on the written application (Ex.P/1-A) of the comp lainant (P.W.1) F.I.R No.85/2015 (Ex.P/14-A) under Section 17(4) of the Hudood Ordinance was registered with Police Station Hub City District Lesbela. 4. Inspector Police, Mahiwal Khan(P .W.14) was entrusted with the investigation. He went to the Civil Hospital where he prepared Inquest report (Ex.P/14-B), secured blood stained clothes of the deceased through recovery memo (Ex.P/7-A), proceeded to the place of occurrence and prepared site plan (Ex.P/14-C) in the presence of prosecution witnesses as well as took into possession an empty shell through recovery memo (Ex.P/7-B). He also took into possession one slipper of culprit, who while running away left it at the crime scene through recovery memo (Ex.P/7-D). On spy information, on 13th of March; 2015 appellant Sikandar alias Sikoo was arrested, who revealed the names of his companions involved in the crime as Baboo and Dildar . The appellant allegedly led the Investigating Officer to the crime scene; whereof memo of place of occurrence (Ex.P/5-B) was prepared. On 14th of March, 2015 a co- convicted accused persons Dildar and Hubdar both sons of Abdul Hameed were arrested. On the same day one of the accused Dildar flee from the police custody . On 16th of March, 2015 the identification parade of appellant Sikandar alias Sikoo was got conducted through eye-witness Raja (P.W.2) under the supervision of Abdul Muqeet (P.W.13) Judicial Magistrate. On 22nd of March, 2015 co-convict Hubdar got recovered crime pistol and motorcycle having been used in the crime which were provided by him to co-convicts to commit robbery , whereof memo (Ex.P/14-E) was prepared and a separat e case under Section 13 (e) of the West Pakistan Arm Ordinance, 1965 was got registered against co-accused Hubdar , whereas the pistol (crime weapon) alongwith an empty shell recovered from the crime scene were sent together to Forensic Science Laboratory ("FSL"). for ballistic opinion. He produced the positive FSL report (Ex.P/14-I). Dr. Farukh Nek Akhtari(P .W.8) Senior Medical Officer, Jam Ghulam Qadir Hospit al Hub medically examined the deceased Ludha Ram. He issued medical certificate (Ex.P/8-A). He observed the following injuries on the person of the deceased and opined as under:-- "i) Entry wound on left side of chin lower portion. ii) Exit wound on back side of survival region. iii) Bleeding signs seen from right ear and mouth. Probable Cause of death huge bleeding and pain. Weapon, was used fire arm, while duration of injuries was fresh at about 45 minutes". Sub Inspector Riaz Hussain (P.W.15), on 29th of September , 2015 arrested co-convict Baboo in the instant case, who was already detained at Police Station Aziz Billu Shaheed Dera Murad Jamali in some other case. On 16th of March, 2015 accused Sikandar alias Saikoo and on 3rd of October , 2015 co-convict Baboo were got identified by eye-witness Raja (PW.2) during the identi fication parade (Ex.P/13-A & Ex.P/13-B) as well as (Ex.P/13-C & Ex.P/13- D) during the identification parade conducted under the supervision of Abdul Muqe et Judicial Magistrate (P.W.13). On 10th of October , 2015 convict Baboo made disclosure (Ex.P/6-A) and pointation of the crime scene. On conclusion of the investigation, the appella nt alongwith co-convict Baboo and Hubd ar were sent to the Trial Court to face the deeds of their crime.
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5. After due compliance of the requisite formalities the appellant alongwith co-convicts were formally charged under Section 17(4) of the Hudood Ordinance read with Section 109 of the Penal Code, to which they pleaded not guilty and professed their innocence. In order to establish the charges, the prosecution produced as many as 15(fifteen) prosecution witnesses, whereafter on closure of the prosecution side,, the appellant and co-convicts were examined under Section 342 of The Code. The allegations and evidence brought forwarded by the prosecution were rebutted by them. They opted to record their statements on oath, however , the appellant subsequently refused to record his statement on oath, so reflected from the order dated 16th of April, 2018 but produced D.W.3 Ahmed Ali whereas the co-convict Baboo and Hubdar got record their statement on oath as well as produced D.W.1 Muhammad Salah, D.W.2 Ahmed Khan and D.W.4 Nisar Ahmed in their defence. At the end of the trial, the appellant and co-convicts were held guilty of the charge s, thus convicted and sentenced in the terms mentioned herein before in para (supra). 6. We have heard Malik Abdul Haq learned counsel for the appellant, Syed Abdul Baqar learned Additional Prosecutor General Balochistan on behalf of the State and Mian Tahir Iqbal Khattak learned counsel for the complainant and perused the record cover to cover carefully and minutely with their able assistance. 7. Malik Abdul Haq learned counsel for the appellant inter-alia contended that Aneel Kumar(P .W.1), Parkash Kumar (P.W.3) and Nadeem Kumar (P.W.4) are not eye-witnesses nor have they identified the appellant at the time of the occurrence whereas the sole eye-witness of the occurrence Raja (P.W.2) has failed to provide detailed description of the culprits thus picking up the appellan t and co-convict Baboo during the identification parade is immaterial and not in accordance with the dictum as enumerated by the apex Court. He maintaine d that the recovery of pistol has been made from the co-convict Hubdar , which cannot be related and attributed to the appellant. He further emphasized that the FSL reports procured cannot be used as a corroborative piece of evidence as the empty and crime weapon have been sent together , which practice and procedure has been disapproved by the apex Court time and again through its judgments. It was further argued that the prosecution has miserably failed to prove the case beyond any shadow of doubt, which entitles the appellant for acquittal in consequence of acceptance of the appeal and setting aside the Impugned Judgment. On the other hand Syed Abdul Baqar learned Additional Prosecutor General Balochistan rebutted the arguments of the learned counsel for the appellant and submitted that the prosecution has successfully proved the charges through ocular evidence of Raja (P.W.2), identification parade, recovery of pistol, whereof positive FSL reports have been received, which connect the appellant with the murder of the deceased Ludha Ram and attempted robbery . He maintained that the appeal being meritless requires to be dismissed. Conversely , Mian Tahir Iqbal Khattak learned counsel for the complainant, while relying upon the arguments so advanced by the learned Additional Prose cutor General Balochistan added that the testimony of sole eye-witness Raja (P.W.2) is confidence inspiring, which has not been shaken by the defence. Continuing his arguments, he urged that the ocular account has been corroborated by the recovery of crime weapon allegedly made on the pointation of Hubdar which has further been substantiated by positive FSL reports. He maintained that the medical evidence has also corroborated the ocular account; leaving no room of doubt in the involvement of the appellant for committing murder of deceased Ludha Ram during the course of the attempted robbery as such requested for dismissal of the appeal. 8. Undeniably , the complainant Aneel Kumar (P.W.1) is not the eye-witness of the occurrence. He was apprised of the occurrence by his younger brother Raja(P .W.2), who witnessed the occurrence of attempted robbery and death of his father Ludha Ram. The prosecution also produced Parkash Kumar (P.W.3) as circumstantial witness. He testified that on the fateful night at 7:45 p.m, while he was present at home alongwith his brother Aneel Kumar(P .W.1), he received phone call from his younger brother Raja (P.W.2) that two persons had fired upon his father who has received fire-arm injuries . He reiterated the version narrated by Aneel Kumar (P.W.1) regarding shifting of his father to Civil Hospital from Zahid Medical Centre and receipt of the dead body . He produced an application (Ex.P/3-A), wherein request was made for not conducting the postmor tem (Autopsy) of his father and
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handing over the dead body of the deceased Ludha Ram. The case of the prosecution hinges upon the following pieces of evidence: i) Ocular testimony of Raja (P .W.2). ii) Identification parades, wherein Raja (P .W.2) identified the appellant and co-convict Baboo. iii) Disclosure and pointation of crime scene. iv) Recovery of crime pistol (crime weapon) from the house of co-convict Hubdar . v) F.S.L. reports and vi) Medical evidence. 9. None has been nominated in the insta nt case as the culprits, who made the attempt of robbery and murdered Ludha Ram, as perpetrators were not known to the prosecution witnesses. Raja (P.W.2) is the, sole eye-witness of the occurrence. Despite the fact that several shops were situated nearby , none of the shop-keepers got attracted and witnessed the occurrence, which in itself requires explanation. Raja (P.W.2) testified that on 10th of March, 2015 while he was present alongwith his deceased father at his shop at about 07:35 p.m (night) three persons came there on a motorcycle, amongst whom one remained seated on the motorcycle whereas two culprits came and asked for the prices of various items in the shop. He maintained that a person with tawny complexion and having long hair on the hue and cry of his father made fire upon the deceased, which inflicted on his neck, where- after both of them flee away . He added that the person who had a pistol in his hand fell on the ground at a distance while running towards Gaddani Stop whereas the other had already made his escape good. He stated that he informed his brother on phone and the people from the neighbourhood took his deceased father to Zahid Medical Centre and then his brother and his other relatives shifted his father to Civil Hosp ital. He categorically stated that he could not identify the person seated on the motorcycle for being far. He deposed that on 16th of March, 2015 he alongwith his brother went to the Court where the Judge made Sikandar alias Sikoo(appellant) to stand in the row of eight persons, having similar height. He stated that he picked up appellant Sikandar alias Sikoo amongst them thrice and told the Judge that he is the person who fired upon his father and ran away. He identified the appellant and co-convict Baboo present in the Court. Abdul Muqeet, Judicial Magistrate (P.W.13) testified that on 16th of March, 2015, he supervised the identification parade of Sikandar alias Sikoo and on 3rd of October , 2015, supervised the identif ication parade of Baboo wherein Raja (P.W.2) identified both the appellant and Baboo present in the Court. Imperative to note that surprisingly Raja (P.W.2) neither gave any description of co-convict Baboo in his statement before the police nor he in his statement before the Court testified that be participated in the test of identification parade conducted by Judicial Magistrate (P.W.13) in respect of co-convict Baboo Khan or he had identified him during the occurrence, which negates the deposition of Judicial Magistrate (P.W.13), putting the entire proceedings of test of identification parade of co- convict Baboo at naught. Be that, if the testimony of Judicial Magistrate (P.W.13) is believed to be correct assumingly , then the testimony of eye-witness Raja (P.W.2) deserves scrutiny that as to how he had picked up co- convict Baboo Khan during the course of identification parade with a specific role, when he had neither stated in police statement nor before the Court that he identified him, more particularly , when he had not given a slightest description of him. Prior to discuss the sufficiency of the description provided by' eye-witness Raja (P.W.2) of the appellant Sikandar alias Sikoo and picking him up during the test of identification parade with attribution of role to him, we would like to make reference to the dictum expounded by the apex Court while determining the worth and value of the test of identification parade in respect of its ef fectiveness to eliminate the possibility of iris-identification of an accused. We are conscious of the legal proposition that picking up of an accused in an identification parade is not substantive piece of evidence but is merely corroborative evidence in its nature, as held in the case of Shafqat Mehmood And Others versus The State (2011 SCMR 537). We are also well aware of the dicta settled by the apex Court that a test of identification parade and correct pointing out of an accused person is not a legal requirement and its failure has not been always held to be fatal to the case of the prosecution. In this regard reference can be made to the cases of Muhammad Akrarn Rahi and others versus The State and others (2011 SCMR 877),
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Ghazanfar Ali Alias Pappu and another versus The State (2012 SCMR 215) as well as to the matter of Kanwar Anwaar Ali reported in ( PLJ 2019 SC (Cr .C.) 153 . In the Kanwar Anwaar Ali's case (supra) while referring to the dictum settled in the cases of Azhar Mehmood and others versus the State (2017 SCMR 135), Ghulam Shabbir Ahmed and another versus The State (2011 SCMR 683) and Shafqat Mehmood and others versus The State (2011 SCMR 537), it was also held that identification parade of an accused person by eye-witnesses before the Court during a trial is generally considered to be quite unsafe because before such identification before the trial Court the eye-witnesses get many opportunities to see accused persons appearing before the Court in connection with their remand, distribution of copies of statement of other prosecution witnesses, framing of a charge and recording of statement of witnesses, therefore, identification parade in the peculiar circumstances was necessary; as in this case too, but the identification parade was subjected to compliance of certain requisites as contemplated in the form of executive and judicial pronouncements. Guidance can be sought from the case of Muhammad Yaqoob And Another versus The State (1989 PCr.LJ 2227 ), which contains the guidelines and necessary pre-cautions for evaluating and conducting an identification parade, which was later endorsed by the Hon'ble Supreme Court in the Kanwar Anwaar Ali's matter (supra). For ease of reference para 23 is reproduced:-- "23. Although there is no law, which prescribes any such precautions yet the necessary guidelines are available in the form of executive instructions and judicial pronouncements. Some of them are summarized as under: (a) Memories fade and visions get blurred with passage of time. Thus, an identifica tion test, where an unexplained and unreasonably long period has interv ened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence; (b) a test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as early as possible. Such suspects should preferably , not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of overzealous LOs showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity , to be taken to Courts for remand etc, they must be warned to cover their faces if they so choos e so that no witness could see them; (c) identification parades should never be held at police station; (d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings; (e) in order to guard against the possibili ty of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio betwee n the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it, (f) if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person; (g) it must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the procee dings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses;
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(h) the Magistrate conducting the proceed ings must take an intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of some one depends only upon his vigilance and caution; (i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade alongwith their parentage, occupation and addresses; (j) the Magistrate must faithfully record all the objections and statements, if any, made either by the, accused persons or by the identifying witnesses before, during or after the proceedings; (k) where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e as a friend, as a foe or as a culprit of an offence etc and then incorporate this statement in his report; (l) and where a witness identifies a person wrongly , the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness; (m) the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings and (n) the Magistrate has to give a certificate at the end of his report in the form prescribed by C.H.II.0 of Vol.111 of Lahore High Court Rules and Orders." 10. Evaluating the testimony of eye-witness Raja (P.W.2), we have observed that the description which he had given to police was that the culprit who made firing upon his father had tawny complexion with long hair. But the memo of identification parade does not reflect that whether the appellant and the dummies were of the same complexion and had .short or long hair. The details of the dummies with their names and parentage have also not been mentioned, which was necessary . According to eye-witness (P.W.2), he had told his brother about the culprits that he had long hair and tawny complexion but the complainant (P.W.1) has not mentioned about such description and details of the culprits in his report. Eye-witness (P.W.2) during cross-examination admitted that the dummies were of distinct features and he does not know their ages. Judicial magistrate (P.W.13) admitted in cross- examination that majority of the dummies were Court staff. He also admitted that the lock-up is visible to a person who passes from the veranda but explained that one or two detainees can be seen only. He claimed that when the witness was called, he saw him in the veranda. He admitted that during remand the faces of the accused persons were open and that the accused persons can be seen by the litigants, advocates and every one present in Court premises. It may be observed that the delay in conducting the identification parade after 3 days of the arrest of the appellant also reduces the evidentiary value of test of identification. After careful and anxious consideration of the test of identification parade, we have found several infirmities diminishing its evidentiary value as the identification parades conducted in the instant case are in utter violation of touchstone enunciated by the apex Court referred herein above. The Hon'ble Supreme Court of Pakistan, while deciding the case bearing Crimin al Appeals No.306-L,307-L and 308/L of 2012 of Mian Sohail Ahmed, Abdul Rashid and Rashid Aziz Rana Versus the State, etc., albeit not published yet but approved for reporting; pronounced on 20th of February , 2019, following its reasons on 24th of April, 2019 observed that the single most important observation from the research on the eye-witness is that it is substantially less accurate than generally believed and that. overall data from real-life cases show that just under 45 percent of witnesses pick the suspect, about 35 percent decline to make a choice, and about 20 percent pick innocent fillers. It has further…
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