2011 P Cr. L J 1819
[Quetta]
Before Mrs. Sye da Tahira Safdar, J
ILYAS ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 46 of 2010, decided on 29th July, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 394/34 ---Voluntarily causing hurt in committing robbery ---Appreciation of
evidence ---Complainant was not an eye -witness of the occasion, but he reported the
matter at the instance of victim and other female, who were the eye -witnesses of the
occurrence ---No one was nominated in F.I.R., but it had been alleged that two persons
while ridi ng a motorcycle, snatched the golden ear -rings of victim female and injured her -
--Accused was arrested later in time and was implicated in case on the basis of an
identification parade allegedly held after his arrest, whereby he was got identified by
victim lady ---Prosecution witness had failed to describe the physical appearance and
other description of accused persons ---Said prosecution witness was not associated with
the identification proceedings held by Investigating Officer during course of
investigat ion---Both the eye -witnesses had failed to describe the physical description,
colour, height and other identification features of accused persons ---Identification parade
had lost its evidentiary value, thus worth no consideration, in circumstances ---Disclo sure
was allegedly made of accused after his arrest, but it was an established fact that there
was no discovery of a new fact, nor on basis of such disclosure any incriminating material
was recovered ---Disclosure which otherwise had not been established, w as of no worth,
nor could be relied upon ---Variations and improvements existed in the statements of
the witnesses and the Trial Court had failed to consider said contradictions
appearing in statements of the witnesses ---Relevant law was not appreciated by the
Trial Court, which had made its order not sustainable ---Case of prosecution had
become doubtful on account of said discrepancies benefit of which was to be
extended in favour of accused ---Impugned judgment of the Trial Court was set
aside, accused was acquitted of the charge and was released, in circumstances.
1996 PCr.LJ 503; PLD 2005 Quetta 86; 1992 SCMR 2088 and Asghar Ali v. The
State 1992 SCMR 2088 ref.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 22 ---Identification parade ---Value ---Identification parade was not a substantive
piece of evidence, but was a corroboration in nature and in circumstances, complete
reliance and conviction could not be made and based solely on such evidence ---
Ident ification of the culprit made during course of investigation though was material and
could be considered as a piece of evidence, but that identification must be for the purpose
of identifying the real culprit, further specifying the role played by the pers on so
identified in commission of offence; and in absence of the same, the identification so
made was of no legal effect and devoid of consideration.
(c) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 38, 39 & 40 ---Confession made to Police Officer ---Valu e---Confession made to
a Police Officer, was not to be proved against accused, but it could be used against
accused only to the extent of discovery of a new fact ---Burden was on the prosecution to
establish at first instance that any disclosure was made; a nd secondly it led to the
discovery of some fact relating to the commission of the offence, which was not within
the knowledge of the police.
Sardar Ahmed Haleemi and Najamuddin Mengal for Appellant.
Qazi Abdul Malik for the State.
Date of hearing: 24t h December, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Instant appeal has been filed by the
appellant Ilyas, feeling aggrieved of judgment dated 16 -3-2010, of Sessions Judge,
Mekran at Turbat, whereby he has been convicted for the offence pu nishable under
section 394, 34, P.P.C., while sentenced him to suffer rigorous imprisonment for a period
of four years with fine of Rs.50,000 and in default to suffer further simple imprisonment
for three months. It is contention of the appellant that impu gned judgment is contrary to
law and facts, as the prosecution failed to prove the case against him. There was no
occasion for the trial Court to award him conviction in absence of any material. It is
further contended that the trial Court failed to apprec iate the fact, that he was not
nominated in the F.I.R., rather subsequently involved in the case on the basis of an
identification parade, which otherwise was not conducted in accordance with law.
Further, there were instances of misreading and misapprecia tion of the evidence, and the
findings of the trial Court are based upon surmises and conjecture. It is further contended
that there were material contradictions and dishonest improvements in the statements of
the witnesses, which were not worthy of relian ce, but the trial Court failed to extend
benefit of doubt in favour of the appellant, and convicted him, which is in contravention
of law. Furthermore, no recovery was effected from him. The appellant prayed that the
impugned order be set -aside and he be a cquitted of the charge.
According to the record, an incident was reported by the complainant. Abdul
Hameed occurred on 11 -10-2009, at 11 -30 a.m., with averments that his daughter -in-law
Murad Bibi wife of Ghulam Haider, and Mst. Roshanai wife of Rahim Bak hsh visited his
house, and told him that when they were proceeding towards Klug from Kosh Kalat at 11 -
30 a.m., and when reached at Kech Core Klug, two persons riding on a motorcycle
crossed them, but returned, out of whom one was veiled and the other was w ithout any
veil. It was alleged that the veiled person snatched golden earrings ( ) weighing 20 -
miskal from ears of Mst. Murad Bibi, and escaped. The ladies asserted that they can
identify the unveiled person. It was also reported that Mst. Murad B ibi sustained injuries
on her ears due to the act. F.I.R. No. 153 of 2009, Police Station City Turbat, District
Kech, was registered at 12 -15 p.m. After completion of the investigation, the case was
challaned against accused persons Ilyas (present appellan t) and Jamil Ahmed being the
co-accused who remained absconder during course of the trial. The charge was framed,
against the accused (appellant) facing trial for the offence under sections 394 and 34,
P.P.C. on 24 -11-2009, which, was denied by the appella nt, whereupon trial commenced.
Seven witnesses appeared on behalf of the prosecution, while in rebuttal the appellant
opted not to produce any evidence in his defence, nor recorded his statement on oath. The
trial Court after completion of the evidence, an d after hearing the counsel for the
parties, recorded its findings through judgment dated 16 -3-2010, arriving to the
conclusion that the charge is established against the accused/ present appellant, thereby
awarded him punishment, which is presentl y impugned before this court.
Learned counsel for the parties were heard. It was argument of the learned counsel
for the appellant that F.I.R. was lodged against unknown persons, with no description of
the culprits, and no specific role was assigned to bo th the accused persons. Therefore,
implication of the appellant needs specific evidence. It was further his argument that
P.W.1, Mst. Murad Bibi failed to differentiate between both the accused persons during
course of identification parade. While no overt act was alleged against the appellant by
the eye -witnesses It was also his argument that nothing incriminating recovered from the
possession of the appellant. Even the eye -witnesses were silent about the description of
the culprits. The identification par ade was not conducted as per requirement of law.
Further, the descriptions of the dummies were not recorded in the memo of the
identification parade, which is also fatal for the case of the prosecution. Furthermore, the
map of the site was prepared on the pointation of the complainant, who was not even an
eye-witness, nor he deposed about the preparation of the map. Learned counsel ended his
arguments that due to these discrepancies no case is made out against the appellant.
Learned counsel for the appellan t further relied on: --
1996 PCr.LJ page 503,
2005 PLD Quetta 86.
1992 SCMR Page 2088.
In reply of the arguments so made by the learned counsel for the appellant, the
State Counsel contended that there is nomination of accused persons in F.I.R., while t he
appellant and other accused person were booked in the case on the basis or disclosure
made by the appellant, during course of investigation. He further argued that
identification parade was very much legal, as all the formalities were fulfilled before
conducting the identification proceedings. He requested for dismissal of the appeal.
In present case, the complainant Abdul Hameed, who appeared as prosecution
witness No.2 (P.W.2), is not an eye -witness of the occasion, rather he reported the matter
on th e instance of Mst. Murad Bibi, the victim, and Mst. Roshanai who are the eye -
witnesses of the occasion, and appeared before the court as P.W.1 and P.W.3. It is
apparent from contents of the F.I.R. that no one is nominated therein by the complainant.
Rather it has been alleged therein that two persons while riding a motorcycle, snatched
the golden ear -ring of Mst. Murad Bibi thereby injured her. It is also apparent that as per
contents of F.I.R. one of the alleged persons was described as veiled and other wi thout
veil. While assigning the role in commission of the offence, it has been alleged that the
veiled person stepped down, and snatched the ear -rings. The other was driving the
motorcycle. It is further apparent from the record that the present appellant was arrested
later in time, and was implicated in present case on basis of an identification parade
allegedly held after his arrest, whereby he was got identified by Mst. Murad Bibi P.W.1.
As such in the circumstances, the primary evidence against the appe llant is the
identification parade held during course of the investigation by the Investigating Officer.
According to P.W.1 Murad Bibi the person boarded on rear seat of the motorcycle was
veiled, who stepped down and snatched her ear -rings thereby injured her. It was further
her statement that she can identify the person, who was without veil. According to P.W.1
Murad Bibi the identification parade was held at Police Station on 17 -10-2009. While she
identified the appellant before the court as the person, who was got identified by her in
the Police Station during course of cross -examination she admitted that she has not
described the description of the accused persons. It was her contention that she identified
the accused person through his voice. The other eye-witness Mst. Roshanai P.W.3, though
while appearing before the court identified the appellant, being the culprit, with no more
details. P.W.3 further deposed that at time of the incident one of the accused persons was
veiled and the other was without it. But she has also failed to describe the physical
appearance, and other descriptions of the accused persons. It is also apparent from record
that P.W.3 was also not associated with the identification proceedings held by the
Investigating Officer during course of investigation. According to P.W.1, P.W.3
accompanied her to Police Station on 17 -10-2009; the date when identification parade
was held. But contrary to her P.W.3 refused the same, according to her she only visited
Thana once for recording of her statement. While the Investigating Officer P.W.7 deposed
that Mst. Roshanai visited Thana on 17 -10-2009, and her statement was recorded. Their
statements do not confirm each other. While P.W.4 Sher Ali is also witness of conducting
of the identification pa rade. The witness though stated holding of identification parade
at Police Station on 17 -10-2009, whereby Murad Bibi (P.W.1) duly identified the
appellant being the real culprit. He produced memo of identification parade as Exh.P/4 -A.
According to this witness Murad Bibi identified the appellant on seeing his hands. The
Investigating Officer while appearing as P.W.7, in his statement deposed about holding of
identification parade, but during course of cross -examination stated that during course of
investigation and while recording her statement under section 161, Cr.P.C. she (P.W.1)
did not disclose the description of the accused persons, both veiled and unveiled. He also
deposed that Murad Bibi P.W.1 got identified the accused by his hands.
The wh ole case of the prosecution rests on the identification parade allegedly held
on 17 -10-2009. In present case neither the appellant, nor the co -accused had been
nominated in the F.I.R., rather the matter was reported against unknown persons. The
appellant a nd the co -accused Jameel Ahmed were implicated in the instant case on basis
of the disclosure made by the appellant, and the identification made by P.W.1 Murad Bibi
in the identification parade. In addition P.W.1 and P.W.3 also identified the appellant
before the court being the culprit. But less reliance can be made on their statements,
because both the eye -witnesses failed to describe the physical description, colour, height
and other identification features of the accused persons. Even both of them in th eir court
statements remained unable to distinguish between the two accused persons, to the effect
that whether the person they identified before the court was the person wearing the veil,
or the other one and also unable to specify the act, performed by t he said person in
commission of the offence. Furthermore, P.W.1 Mst. Murad Bibi stated that she identified
the culprit on basis of his voice. But both these witnesses have not deposed either before
the court or before the Investigating Officer, that at tim e of incident there was any
conversation between the accused persons or with them (Murad Bibi and Mst. Roshanai).
The prosecution witnesses Nos.4 and 7 contrary to Murad Bibi described the mode of
identification through hands, with no explanation. This sor t of evidence is of no help to
the prosecution's case. The learned counsel for the appellant placed reliance on a
judgment of honourable Supreme Court in criminal appeal titled as Asghar Ali v. The
State, reported in 1992 SCMR page -2088, wherein their Lord ships provided a guideline
in cases where accused person unknown at time of lodging of F.I.R., and identified
thereafter, which is very much relevant in present case. It is held: --
"Apart from the formalities found lacking, the substantial portion of the
identification was to be with regard to the participation of the identified person is
the crime. It had to be so stated by the witness who was supposed to identify. The
context in which he was identifying the individual had to be disclosed. This is
establi shed law as held in Lal Singh v. the Crown (1924) 5 Indian Law Reports
page 396 (Lahore Sessions). It was held in that case as hereunder: --
"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 might merely mean that the
witness happens to know that accused person. The principal evidence of
identification is the evidence of a witness given in Court a s 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 corroborat e 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."
The identification in Court of a person produced as an accused months after the
event could not satisfy the requirement of law for proving the identity of the
culprit."
Keeping in view of the principle laid down therein, the identification parade is not
a substantive piece of evidence, rather it is corroborative in nature, therefore, complete
reliance cannot be made on it, and conviction cannot be made solely on it. Article -22 of
the Qanun -e-Shahadat Order 1984, governs the evidence so produced. Keeping in view
provisions of the Article, though identification of the culprit made during course of
investigation is material and can be considered as a piece of evidence, but this
identification must be for the purpose of identifying the real culprit, further, sp ecifying
the role played by the person so identified in commission of the offence, and in absence
of the later part the identification so made is of no legal effect, and devoid of
consideration. But in present case, P.W.1 Murad Bibi identified the present appellant
during the process, but failed to assign him any specific role in commission of the
offence. In addition, in absence of description of the culprit, in her very first statement
before the police, the identification parade held later in time, will be of no legal effect. In
view of mentioned facts, relevant provision of law this piece of evidence looses its
evidentiary value, thus worth no consideration.
The other piece of evidence, on basis of which, the appellant was implicated in
present case is the disclosure, allegedly made by the appellant during course of
investigation, which is present on record as Exh.P/5 -A. This sort of evidence is covered
by Article -40 of Qanun -eShahadat Order 1984, which reads as under: --
"How much of information receiv ed from accused may be proved. When any
fact is deposed to as discovered in consequence of information received from a
person accused of any offence, in the custody of a police -officer, so much
of such information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved."
This Article is an exception to Articles 38 and 39 of the Order 1984, whereby it is
specifically provided that a confession made to a Police Officer i s not to be proved
against an accused person. But it can be used against the accused person only to the
extent of discovery of a new fact. The burden is on the prosecution to establish at first
instance that any disclosure was made, and secondly it led to the discovery of some facts
relating to the commission of the offence, which was not within the knowledge of the
police. But in present case, though it has been alleged that a disclosure was made by the
appellant after his arrest, but it is an established fact that there is no discovery of a new
fact, nor on basis of such disclosure any incriminating material was recovered. Neither
the snatched ear -rings, nor the motorcycle, used in commission of the offence, were
recovered on the pointation made by the app ellant. In absence of the same, the disclosure
which otherwise has not been established is of no worth, nor can be relied upon.
The trial Court simply relied on the statements of the prosecution witnesses, and
failed to consider the factual as well as leg al aspect of the material, on which the whole
case of the prosecution rests, thus made an error, while holding that the prosecution has
established the case against the accused Ilyas without any shadow of doubt, thereby
convicted him. There are variations, and improvements in the statements of the witnesses.
The trial Court has failed to consider the contradictions appearing in the statements of the
witnesses. The relevant law is not appreciated by the trial Court, which makes the order
not sustainable. Fur thermore, due to the discrepancies, as pointed hereinabove, the case of
the prosecution becomes doubtful, benefit of which is to be extended in favour of the
accused person.
In view of the above discussion, the appellant has established his case, therefo re,
the appeal is accepted, the impugned judgment dated 16 -3-2010 of Sessions Judge,
Mekran at Turbat, is hereby set aside. The appellant Ilyas son of Khuda -e-Dad is
acquitted of the charge in case pursuant to F.I.R. No. 153 of 2009, Police Station City,
Turbat, District Kech, dated 11 -10-2009. He be released at once, if not required in any
other case.
H.B.T./73/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.