Full Judgment Text & Judicial Ruling

2017 P Cr. L J Note 7 [Sindh (Hyderabad Bench)] Before Salahuddin Panhwar, J JANAN and others---Appellants Versus The STATE---Respondent Criminal Jail Appeals Nos. S-279, S-280, S-281 and S-290 of 2010, decided on 19th January, 2015. (a) Qanun-e-Shahadat (10 of 1984)--- ----Art. 22---Identification parade---Scope---Question of identification parade would only come into play when the witness of an incident would make two claims; that he saw an unknown accused committing the crime and that he could identify accused on seeing again---Claim of seeing the culprit should not only be a claim, but it should come on papers for which the witness was required to give the description/feature of the unknown person in his FIR or statement---Requirement to provide description was demand of safe administration of justice, so that claim could be logically tested during further proceedings (investigation and trial); and apprehension of innocence under such claim could be eliminated or least confined---Mere non-mentioning of description alone was not sufficient to disbelieve identification, if otherwise it was proved truthful, natural and convincing---Duty of the witness/prosecution would not come to an end only by saying that "it was the man" but prosecution was to establish that "it was the man who committed the offence", because the prosecution was always duty bound, not only to prove the happening of the incident, but that it was accused (arraigned) who committed the offence---Such was the object of identification parade because of which it was insisted that witness, claiming to have identified/picked accused, should also specify the role played by such identified/picked person in commission of offence---Law should not be static, but it should move along with the times to meet all the present and further situations, circumstances and challenges---Principles to examine the delay in identification-parade, joint identification parade, number of dummies and non-disclosure of role, had also undergone certain changes, clarifications and modifications---Mere irregularity of joint identification; delay alone in identification parade; less number of dummies from legally recognized ratio of dummies i.e. eight to ten per accused, were not so fatal to discard the evidence of a witness, if the witness (prosecution), to the satisfaction of the court, would explain the role of such identified person in court, circumstances justifying delay in identification parade, including the type of witness; and other factors and legal requirements---Single circumstance could differently result upon two individuals because, it was the effect/consequence of the circumstances which would matter in leaving impact---Type of witness would also matter---Those changes in viewing the evidence of identification, had not caused any effect upon the legally established principles of law---Legal position would continue so, for the simple reason that else the very purpose of identification parade would come under clouds and doubts, which would result only in excluding such piece of evidence--- Prosecution not only had to ensure that it adopted all measures, so as to conduct identification parade fairly and properly, but also that it eliminated all possibilities which might have provided an opportunity for the witness to see accused after the commission of crime till the identification parade---In case of abduction or robbery, or hurt, witness who had direct nexus with the incident, and claimed that incident lasted up to considerable time, had significant value---If he would stick with his claim upto evidence before Trial Court, such witness could not be ignored on minor irregularities, found in identification parade or any lacuna on the part of investigation---What was important to view/examine the claim of the witness, for which the prosecution would require to prove, were; presence at the spot; his position to see accused person; availability of light etc. if incident time was night time. [Paras. 12, 13, 14 & 15 of the judgment] Sabir alias Fauji v. State 2011 SCMR 563; Bacha Zeb v. State 2011 SCMR 1189 and State v. Farman Hussain PLD 1995 SC 1 ref. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 452---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint---Appreciation of evidence---Deceased and injured persons were closely related to witness of the case; and it was a night time incident---Presence of house inmates at night time, was quite natural and worth believing---Prosecution through eye-witnesses, had fully established ocular account of the case and also existence of source of light at the place of occurrence, in which accused were identified---Trial Court, in circumstances, had committed no illegality in believing the witnesses as witnesses of incident, and their claims to identify the culprits---In the incident 10 persons were murdered and 15 persons including females and minors injured, and assailants were dozens in number---In such an assault, it could not be expected from the complainant to give detail of each and every minor things, particularly, where the FIR was lodged within two hours of the incident---Claim of eye-witnesses to have identified accused persons, was quite believable in peculiar circumstances--- Witnesses, though were closely related to the deceased persons, but such relationship, alone, had never been taken as sufficient to believe the evidence of a witness, who otherwise qualified the test of cross-examination; and his testimony appeared to be natural and confidence inspiring---In absence of a motivation or consideration to falsely involve an innocent in murder of such number of blood-relations, was supportive to believe the words of witnesses---It was always hard for a blood-relation to name an innocent in place of real murderer, unless, it was established that there had been such a motive or consideration which could make such a blood relation to swallow his tears while letting the real culprit remain in cover---Some dispute over land or pail of water, could not be believed to have been of such a nature that a blood-relation could be believed to let murders of about dozen of his blood relations go unpunished---Statement of a single eye-witness, if inspiring confidence, was sufficient to hold conviction, even in murder case--- Ocular account, was fully corroborated by medical evidence---Mere non-recovery of crime weapon would not lessen the value of the direct evidence, if same was natural and confidence inspiring; and had found support from medical evidence---Trial Court, in circumstances, had not committed any illegality in recording the impugned judgment of conviction, which was proper and well reasoned---Same was maintained, and appeals were dismissed. [Paras. 16, 17, 18, 19, 20, 21, 25 & 26 of the judgment] 2006 YLR 359; 2014 PCr.LJ 527; 2002 SCMR 1439; 2012 SCMR 327; 2008 SCMR 302; 2011 SCMR 527; PLD 1981 SC 142; PLD 1996 Kar. 246; PLD 2002 SC 1048; 2008 SCMR 6; 2009 SCMR 230 and 2011 SCMR 725 ref. (c) Criminal trial--- ----Appreciation of evidence---Interested witness---For making the evidence of a witness doubtful, or not liable to be considered for conviction, defence should require to prove the witness to be "unnatural and interested"---Term 'interested' was not subjective to "relationship" alone, but it would require a motivation or consideration for such a witness, which could be believed to have made such a witness to falsely involve an innocent person. [Para. 18 of the judgment] 2010 SCMR 1025; 2011 SCMR 513; 2011 SCMR 429; 2011 SCMR 1954 and 2011 SCMR 429 ref. (d) Criminal Procedure Code (V of 1898)--- ----S. 221---Charge---Defect in charge---Removal of defects---If a charge would give a complete notice and knowledge of allegations against accused, charged for allegations, then plea of defects in charge would not stand, particularly when such plea of prejudice was not taken during course of trial, where the Trial Court, was always competent to remove the defects by framing fresh/amended charge. [Para. 22 of the judgment] (e) Criminal trial--- ----Enmity---Scope---Enmity was a double edged weapon, which would cut either ways---lf the enmity would give rise to plea of false involvement, then same would allow to presume commission of the complained offence. [Para. 23 of the judgment] (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 452---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass after preparation for hurt, assault, or wrongful restraint---Appreciation of evidence---Contradiction in the evidence of witnesses---Was alleged that complainant and witnesses had contradicted each other on material points--- Validity of allegation---There could have been contradiction, but contradiction, should be shown to be grave causing a serious dent on material aspect of the charge, so as to discard the statement---Variations in statement of witnesses, which were neither material nor serious enough to affect the case of prosecution adversely, were to be ignored and would not necessarily qualify the term contradiction. [Para. 24 of the judgment] 2013 SCMR 480; 2011 SCMR 460 and 2010 SCMR 1791 ref. Nisar Ahmed Durani, Ghulam Asghar Mirbahar and Syed Tarique Ahmed Shah for Appellants. Syed Meeral Shah, Deputy Prosecutor General Sindh for the State. Date of hearing: 19th November, 2014. JUDGMENT SALAHUDDIN PANHWAR, J.---By this common Judgment, I intend to dispose of these four appeals, being outcome of one and same Judgment dated 15th July 2010 passed by the 1st Additional Sessions Judge, Hyderabad in S.C. No.227/1994, whereby the appellants have been convicted as under:- 1. Under section 302(b), P.P.C. and sentenced to imprisonment for life; 2. Under section 452, P.P.C. to suffer R.I. for seven years; and 3. Under section 307, (324, P.P.C.) to suffer R.I. for 10 years. All the sentences, however, were ordered to run concurrently. Proceedings against accused Khuda Bux were abated since he had died while case of absconder accused Khan Chandio was bifurcated and was ordered to be proceeded on his surrender/arrest. 2. The facts giving rise to this appeal are that complainant Wali Muhammad Chandio lodged FIR alleging therein that after murder of four persons of their side by accused Kundo Chandio and others in 1985, there was blood feud between them. Complainant party asked Kundo for faisla but no faisla was held till 1987; thereafter 12/13 persons of complainant's family were shifted and were residing at Primacy School Shaikh Abdul Majeed Sindhi Colony Dhabeji and then they shifted at Gharo; Kundo Chandio and Dada Chandio sent threatening letters to them. On the fateful date complainant, Shahmir, Juman, Budho slept in their house along with their family members and electricity light was one in the courtyard of the house; at about 10.30 pm, firing started. Complainant and his son Sadiq took licensed guns and went to shelter place (Morcha); Jan Muhammad and Abdullah also took positions in another Morcha while deceased Dadan, Juman and Budho, having guns, took positions inside the house. Complainant and Sadiq saw on the bulb light that accused Kando, Laiq son of Gullan, Gullan son of Tahir, Dadan Chandio, Haji Kamal, Noro son of Mubarak, Khan son of Hashim, Janan, Bahawal son of Haji Karocho, Wairs son of Gullan, Hussain son of Tahir, Ulan son of Hussain, Ramzan son of Allah Bux, all by caste Chandia; Bhai Khan Brihmani, Imam Bux Khoso armed with KK, rifle, G/3 and guns were continuously firing. They intruded in the house of complainant by abusing and inquiring about Wali Muhammad and asked to call him out. They fired from their respective weapons; complainant and his son Sadiq also fired in defence, which hit 4/5 persons of accused party who became injured. All these accused then directly fired on complainant's family members, meanwhile Gharo police also came there and opened fire shots. Due to firing of police and complainant party accused, while firing, went away in their vehicles parked outside the house. Complainant, Sadiq, Jan Muhammad and Abdullah came out of Morchas and found in the house that 1) Juman, 2) Budho, 3) Dadan, 4) Allah Bux, 5) Mst. Hanifan, 6) Mst. Hakiman, 7) Mst. Noor Khatoon and little children namely 8) Bashir, 9) Sughran, and 10) Azizan were dead due to firing and 1) Sahib Khan 2) Mst. Zaib un Nisa, 3) Mst. Jannat, 4) Mst. Kazbanu, 5) Mst. Soni, 6) Mst. Ghulam Fatima, 7) Mst. Siyani, 8) Baby Husan, 9) Mst. Sakina, 10) Mst. Bashiran, 11) Mst. Hakima and children 12) Gul Hassan, 13) Allahdad, 14) Muhammad Hassan and 15) baby Anwar Khatoon were lying injured and were crying, meanwhile Gharo police came there and brought injured at Hospital. Thereafter complainant appeared at P.S. and lodged report. 3. After usual investigation, appellants were sent up to face the charge. 4. The charge was framed by the trial court to which the appellants pleaded not guilty and claimed for trial. 5. To substantiate its case, prosecution examined in all 17 witnesses including the complainant, eye-witnesses, mashirs, I.O, Doctor etc who produced respective documents and then closed its side. 6. Statements of the appellants under section 342, Cr.P.C. were recorded wherein they denied the prosecution allegations and claimed their innocence while claiming their involvement to be result of dispute over land, peach of water or matrimonial dispute. However, none of them, came forward to examine himself on Oath or to lead evidence in defence, as provided under section 340(2), Cr.P.C. 7. The learned trial Judge after hearing the parties' counsel convicted the appellants/accused in the above terms. 8. Learned counsel for the appellants submitted that old blood feud is admitted between the parties, therefore, false implication of the appellants cannot be ruled out; all the P.Ws are close relatives of the complainant therefore, their credibility is not free from doubt; charge is defective as no proper details were mentioned therein; identification of the accused on bulb light is weak type of evidence; identification of the accused was jointly made which too with in ordinate delay and no requirements for holding identification test were fulfilled, hence was not in accordance with law. In support of their contradictions they relied upon the cases reported as 2006 YLR 359, 2014 PCr.LJ 527, 2002 SCMR 1439, 2012 SCMR 327, 2008 SCMR 302, 2011 SCMR 527, PLD 1981 Supreme Court 142, PLD 1996 Karachi 246, PLD 2002 Supreme Court 1048, 2008 SCMR 06 and 2009 SCMR 230. 9. Learned Additional Prosecutor-General defended the impugned judgment by submitting that since the presence of the witnesses at place of incident was quite natural hence mere relationship would not diminish the credibility of witnesses; mere defect(s) in identification parade are not fatal to case of prosecution that witnesses, even, identified the appellants during court proceedings, and that the prosecution proved its case beyond reasonable doubt hence case for interference is not made out. 10. I have heard learned counsel(s) for the appellants, learned Additional Prosecutor-General and have perused the evidence on record. 11. Scanning of the all available material would show that prosecution brought ocular account in shape of evidences of the eye-witnesses while claiming them as eye-witnesses of the incident and insisted for conviction on their testimonies. The perusal of the record indicates that appearance(s) of the names of the accused persons happened to be in result of two parts i.e FIR and identification parade. 12. Before going into the details of the merits of the case, I would like to examine the legal value of identification parade and principles settled down in series of decision, falling within the scope of stare decisis. It is settled proposition of law that question of identification parade only comes into play when the witness of an incident makes two claims i.e 1) he saw an unknown accused committing the crime 2) he can identify the accused on seeing again. The clause of seeing the culprit should not only be a claim but it should come on papers for which the witness is required to give the description/feature of the unknown person in his FIR or statement, as held in the case of "Sabir alias Fauji v. State" (2011 SCMR 563) that: "it is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the FIR". Requirement to provide description is demand of safe Criminal Administration of justice so that claim could be logically tested during further proceedings (investigation and trial) and apprehension of innocence under such claim could be eliminated or least confined. However, mere non-mentioning of description alone is not sufficient to disbelieve identification if otherwise it is proved truthful, natural and convincing. 13. The duty of the witness/prosecution does not come to an end only by saying that "it is the man" but continues unless he/prosecution establishes that "it is the man who committed the offence" because the prosecution is always duty bound not only to prove the happening of the incident but that it was the accused (arraigned) who committed the offence. This has been the object of identification parade because of which it is always insisted that witness, claiming to have identified/picked the accused, should also specify the role played by such identified/picked person in commission of offence. However, worth to add here that it is established principle of law that the law should not be static but it should move along with the times to meet all the present and further situations, circumstances and challenges. Therefore, the principles to examine the delay in identification parade, joint identification parade, number of dummies and non -disclosure of role, have also undergone certain changes, clarification and modification, as discussed and held in the case of "Bacha Zeb v. State" (2010 SCMR 1189) while referring to the case(s) of:- "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." In the above case i.e "Bacha Zeb v. State", his lordship Mr. Justice Rehmat Hussain Jafferi has observed that: 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. (under lining is ours) 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 persecutions were taken. 14. While, examination of above case laws, I can safely conclude that: i) mere irregularity of joint identification; ii) delay alone in identification parade; iii) a less number of dummies from legally recognized ratio of dummies i.e eight to ten per accused; Thus, such shortcomings are not so fatal to discard the evidence of a witness if the witness (prosecution), to the satisfaction of the court, explains the role of such identified person in court, circumstances justifying delay in identification parade, including the type of witnesses and other factors and legal requirement. A single circumstance can differently result upon two individuals because it is the effect/consequence of the circumstance which matters in leaving impact, therefore, type of witness also matters. These changes in viewing the evidence of identification, however, have not caused any effect upon the legally established principle of law that: "it is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused should not be seen by the witnesses before the identification parade. It is pertinent to mention that all these precautions should not only be taken but should be proved to have been taken and these precautions should be recorded in the initial record like general diary of the police station and the daily register and the same should be produced in court. In the absence of such precaution and evidence, no value can be attached to the identification of the accused by witnesses". 15. The legal position continues so, for the simple reason that else the very purpose of identification parade shall come under clouds and doubts which shall result only in excluding such piece of evidence, therefore, the prosecution not only has to ensure that it adopted all measures so as to conduct identification parade fairly and properly but also that it eliminated all possibilities which might have provided an opportunity for the witness to see the accused after the commission of crime till the identification parade. Here, it is noteworthy to add here that identification by a witness, who has seen the crime at some distance and a witness, who himself is victim makes the difference, I have no hesitation to say that in case of abduction or robbery, or hurt, a witness who has direct nexus with the incident, and claims that incident lasted upto considerable time, has significant value. If he sticks with his claim upto his evidence before trial court, such evidence cannot be ignored on minor irregularities, found in identification parade, or any lacuna on the part of investigation. Having discussed above, what is important to view/examine the claim of the witness, for which the prosecution would require to prove, are:- i) presence at the spot; ii) his position to see accused persons; iii) availability of light etc. (if incident time is night time) 16. In the instant matter the eye-witnesses of the incident have claimed their presence at the place of incident while claiming that they were residing within one and same enclosure (compound) as is evident from the evidence(s) of: PW-1 Wali Muhammad (complainant) In his cross-examination stated that 'Our houses were 10/12 in number and were within the same enclosure'. 'The houses of deceased Budho, Dadan and Juman were situated in front of our house within the same enclosure' PW-2 Muhammad Saddiq In his examination-in-chief stated that 'We were consisting 10/12 houses situated within the same enclosure' PW-3 Jan Muhammad In his examination in chief stated that We started residing together at Gharo having our 14 houses Since two facts are not disputed i.e i) deceased and injured persons are closely related to witnesses of the case and ii) it was a night time incident. The presence of house inmates at night time is quite natural and worth believing. Now let's see what the prosecution witnesses say about their position(s) so as to believe or otherwise their claim to see/identify the culprit(s). About natural availability of all deceased and injured PW-1 Wali Muhammad (complainant) In examination in chief stated that "The incident took place on 13.08.1988 at about 10.30 p.m. At that time of I along with Muhammad Sadiq my son, Jan Muhammad, Dadan, Jumo, Budho, Allah Bux were available in the house when at 10.30 p.m. there was firing/burst of Kalashinkov was made at outer door of our house. We took position in the Morchas at 11.00 p.m., but on incident we were still in the house and have taken position in the Morchas' PW-2 Muhammad Saddiq In his examination-in-chief stated that 'At that time there was firing and brusts of kalashinkoves were made upon our houses, on which we got-up and entered in the Morchas and started firing from our guns in self defence....' PW-3 Jan Muhammad In his examination in chief stated that 'At that time there was firing/Brust of Kalashankoves being made at our houses, We took position in the Morchas as they were armed with Guns' PW-4 Abdullah In his examination in chief stated that 'At that time there was firing from Kalashankoves and Rifles upon us, on which we got up and entered in the Morchas'. From the above, it becomes quite clear that these eye-witnesses have categorically claimed to have taken position in the 'Morchas'. A `Morcha' is usually made/constructed at a place from where the person, inside the Morcha, could have a clear view of outside. Thus, the prosecution witnesses (eye-witnesses) can be believed to be in a position to see/view the assailants (accused persons) from their claimed position. As regard to the availability of source (lights necessary to view things) the eye-witnesses have claimed that: PW-1…

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