2023 P Cr. L J 1346
[Balochistan]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
MUHAMMAD ISMAIL and another---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 20 of 2022, decided on 19th December, 2022.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Art. 40---Test Identification Parade (TIP) ---Pre-requisites ---Evidentiary value ---Pre -
requisite of identification via TIP is that the person, who is likely to identify perpetrators of
crime, must give a detailed description such as features, height, and complexion of perpetrators in advance ---Giving details with promptitude far earlier to carrying out TIP is
mandatory; otherwise, TIP loses its evidentiary value.
Sohail Ahmed v. State 2019 SCMR 956 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 40 --- Test Identification Parade--- Scope --- Picking out of accused in identification
parade is not substantive piece of evidence but is merely corroborative in nature.
Kanwar Anwaar Ali, Special Judicial Magistrate's case PLD 2019 SC 488 rel.
(c) Criminal trial ---
----Medical evidence--- Scope --- Medical evidence has a pivotal importance which can only
confirm ocular account but cannot identify accused.
(d) Penal Code (XLV of 1860)---
----S. 377--- Sodomy--- Appreciation of evidence ---Benefit of doubt ---Negative Forensic
Science Laboratory Reports --- Effect --- Accused persons were convicted by Trial Court for
sodomizing two minor boys and were sentenced to imprisonment for life ---Validity ---Even if
victims were subjected to carnal intercourse, even then it would not be helpful for the case of
prosecution, particularly when ocular account and other circumstantial evidence did not connect accused persons with culpability so alleged ---Investi gating officer collected pieces
of Shalwar of victims suspected to be stained with semen, and blood samples of victims for DNA and human semen analysis ---On the arrest of one accused his blood and buccal swabs
were also taken into possession, which were sent to Forensic Science Agency whereof
reports were found to be negative ---No reliance could be placed on such Forensic Science
Laboratory Reports ---Second accused was neither put to any Test Identification Parade nor
was he medically examined by Medico Legal Officer or samples of blood and buccal swabs were taken, so his case was even better than the case of other accused ---Prosecution failed to
connect both accused persons with the indictment and findings arrived at by Trial Court were
based upon improper appraisal of evidence ---High Court set aside conviction and sentence
awarded to accused persons who were acquitted of the charge ---Appeal was allowed in
circumstances.
Kashif Ali v. The Judge ATC and others PLD 2016 SC 951; Akhtar Ali and others v.
The State 2008 SCMR 6; Zia -ur-Rehman v. The State 2000 SCMR 528 and Askar Jan v.
Muhammad Dawood 2010 SCMR 1604 ref.
Bahauddin Sial Kakar for Appellants.
Naeem Kakar, Additional Prosecutor General for the State.
Date of hearing: 26th October, 2022.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Samiullah, age 15 (PW -1) and Abdul Rehman,
age 13 (PW -2) indicted appellants Muhammad Ismail, Muhammad Musa and proclaimed
offenders Sarwar and Muhammad Sadiq for sodomizing them forcibly, culminating in a
verdict of guilt on 31.12.2021 ("impugned judgment") penned by Special Judge, Anti -Rape
Court Sariab Division Quetta ("Trial Court"), whereby the appellants were convicted and
sentenced under sections 377/34 of the Pakistan Penal Code, 1860 ("P.P.C.") to suffer life imprisonment with fine of Rs.400,000/ - each payable to victims and in default whereof to
further suffer six months' SI with premium of section 382- B of the Criminal Procedure Code,
1898 ("Cr.P.C.").
2. Laconically, crime report on the strength of an application (Ex.P/1- A) FIR No.206 of
2019 (Ex.P/1- B) dated 03.11.2019 was lodged by victim -complainant Samiullah (PW -1)
within the remits of Police Station Khaliq Shaheed, Quetta, averring therein that he along with his cousin Abdul Rehman (PW -2) were sent by his uncle Usman to fetch bread from
nearby Tandoor and when they reached Fort of Lala Khan four men armed with kalashnikovs forcibly took them to the nearby rainy nala, where they turn by turn sodomized them on gun point; took their nude photographs as well as threatened that if they disclosed about them, they would upload their nude pictures on the Facebook. According to complainant (PW -1)
after committing sodomy they were allowed to go as such they came home and apprised his father about the occurrence.
None was nominated by the victims, however, subsequently on 19.11.2019 father of
victim Samiullah, Syed Muhammad (PW -3) through an affidavit nominated the appellants.
The victims were medically examined by Dr. Ali Mardan Police Surgeon Bolan Medical
Complex Quetta (PW -6), who produced MLC as Ex.P/6- A as well as took blood samples and
buccal swab for DNA and other requisite tests.
After necessary investigation, the appellants were arrested but rest of the two
nominated accused remained away, thus were declared proclaimed offenders on
commencement of the trial. Appellant Ismail after arrest on 11.2019 was medically examined by Dr. Ayesha Faiz (PW -8), who produced MLC as Ex.P/8- A as well as took blood samples
and bucal swab for DNA analysis.
The appellants were indicted for sodomy and on denial of the charge, the prosecution
in order to bring home the charge produced ten witnesses, whereafter on close of the prosecution side, the allegations brought forward were confronted as provided under section 342, Cr.P.C., which were repelled, however, none came forward to make statement on oath; on conclusion of the trial, a guilty verdict was pronounced against the appellants in the terms stated in para (supra).
3. Learned counsel for the appellants inter alia contended that the prosecution has failed
to prove the charge against the appellants, but the learned Trial Judge contrary to the evidence available on record has recorded the verdict of guilt, which is unsustainable, thus, liable to be set aside. He added that the entire case rests upon the statements of victims and medical evidence, which are in conflict, as such, no reliance can be placed upon such evidence, hence the case being doubtful and the reasoning drawn by the trial judge being contrary to record are unsustainable, thus merits to be set -aside and in consequence thereof
the appellants deserve acquittal.
Conversely, learned APG strenuously repudiated the arguments so advanced by
learned counsel for the appellants and urged that the testimony of the victim has been corroborated by medical and FSL reports. He maintained that the appellants have been convicted on the basis of proper appraisal of the evidence, which does not call for interference, henceforth, requested for dismissal of the appeal.
4. Heard. Record vetted wall to wall with the able assistance of counsel for both the
adversaries. Miticulous recital of the evidence demonstrates that the case of the prosecution rests upon the deposition of victims of sodomy Samiullah (PW -1), age 15 and Abdul Rehman
(PW -2) age 13 wedded with Medico Legal Certificates ("MLC") issued by Dr. Ali Mardan
(PW -6) and Dr. Ayesha Faiz (PW -8), identification parade conducted under the supervision
of Muhammad Qasim Judicial Magistrate, (PW -9), disclosure of appellant Muhammad Ismail
and last but not the least the Punjab Forensic Science Agency report.
Samiullah (PW -1) and Abdul Rehman (PW -2) stated that they were sent by his
maternal uncle Usman on 02.11.2020 at 8:45 p.m. at night to fetch bread from nearby Tandoor and when they were on their way, four gunmen of one Lala Khan forcibly dragged them to a rainy nala situated at a close proximity, where four of them turn by turn sodomized both of them on the gunpoint; the culprits took their nude photographs with the threat that if they revealed about them they will upload their nude pictures on the Facebook. It is also the case of the prosecution that when both the victims were let to go, they came home and
apprised Syed Muhammad (PW -3) father of victim Samiullah (PW -1) and Syed Nasaruddin
(PW -4) father of victim Abdul Rehman (PW -2), whereafter they rushed to the Police Station,
wherefrom Muhammad Maqbool Gujjar SI (PW- 10) accompanied them to Bolan Medical
College Hospital, where both the victims were examined by Dr. Ali Mardan Mengal (PW -6),
who issued MLC (Ex.P/6- A) of Abdul Rehman with the following observations;
"Well oriented with time, place and person. Secondary characters under development
Penis normal and circumcised with two testis Fresh tears seen on anal orifice at 6 O' Clock position.
No sign of struggle or assault (torture) seen all over the body Shalwar and blood taken for DNA and Human semen analyses."
Whereas, after examination of victim Samiullah he issued MLC
(Ex.P/6 -B) and observed as infra;
"Well oriented with time, place and person. Secondary characters started
development.
Mentally and Physically healthy Penis normal circumcised with two testis in scrutum
Redness with ordem seen around anal orifice. No sign of struggle or torture seen all over the body.
Piece/Shalwar Taken with blood for DNA and Human Semen Analyses."
The doctor (PW -6) also took a piece suspected to be stained with semen from shalwar
of both the victims for detection of human semen analysis with blood samples for DNA test.
5. Undeniably, none of the victims gave description of the culprits, who sodomized them
nor was anyone nominated. For the first time, father of victim Samiullah, subsequently, through an affidavit nominated appellants and proclaimed offenders Sarwar and Muhammad Sadiq as perpetrators of the crime.
It is trite law that supplementary statements have no worth and evidentiary value so
held in the cases of 'Kashif Ali v. The Judge ATC and others' (PLD 2016 SC 951) and 'Akhtar Ali and others v. The State' (2008 SCMR 6). Moreso, Syed Muhammad (PW -3) has
not mentioned about the source of his information and failed to reveal as to how and who gave information about the appellant and the proclaimed offenders for being involved in the crime alleged herein, as such, we believe that the case to the extent of nomination of the appellants at a such belated stage through a supplementary statement -affidavit is of no
evidentiary value, more particularly, when such statement -affidavit had not been tendered
and exhibited by Syed Muhammad (PW -3) during trial.
6. Analyzing the disclosure and pointation of crime scene by appellant Muhammad
Ismail, it may be observed that he was arrested on 29.12.2019 on the pointation of Syed Muhammad (PW -3) and victim Abdul Rehman (PW -2), who allegedly made disclosure vide
memo (Ex.P/7 -B), admitting his guilt and in consequence thereof made pointation of the
place of occurrence, whereof memo of pointation (Ex.P/7- C) was prepared. The disclosure
memo and the pointation so made in consequence of such disclosure are inadmissible for the
disclosure is nothing but a confessional statement before the police, which offends Articles 38 and 39 of Qanun- e-Shahadat Order, 1984 ("QSA of 1984"). Since the place of occurrence
was already visited by Investigating Officer ("IO") Muhammad Maqbool Gujjar (PW -10) and
were known to the victims as well as their fathers Syed Muhammad (PW- 3) and Syed
Nasaruddin (PW -4), therefore, it was not a discovery of new fact squaring within the ambit
of Article 40 QSA of 1984. To fortify our view, we would like to refer to the cases of 'Zia -
ur-Rehman v. The State' (2000 SCMR 528) and 'Askar Jan v. Muhammad Dawood' (2010
SCMR 1604).
7. Test of Identification Parade ("TIP") is the most important piece of evidence,
whereupon the prosecution relies. After arrest of appellant Muhammad Ismail, he was subjected to identification parade for the purpose of identification by victims Samiullah (PW -1) and Abdul Rehman (PW -2), which was conducted thrice under the supervision of
Judicial Magistrate Muhammad Qasim (PW -9) on 30.12.2019, whereof memo of
identification parade (Ex.P/9- A) and certificate (Ex.P/9 -B) pertaining to victim Samiullah
(PW -1) and memo of identification parade (Ex.P/9- C) of victim Abdul Rehman (PW -2) and
certificate (Ex.P/9 -D) were prepared. Admittedly, during identification both of the victims
albeit raised pointed finger and picked up appellant Muhammad Ismail but no role was attributed to him as to what did he do on the fateful night.
8. Evidently, the prerequisite of the identification via TIP is that the person, who is
likely to identify the perpetrators of the crime must give a detailed description such as the features, height, and complexion of the perpetrators in advance, whom the identifier had a glimpse. Giving details with promptitude far earlier to carry TIP is mandatory; otherwise, the
TIP will lose its evidentiary value. In this regard, the dictum expounded in the case of "Sohail Ahmed v. State" (2019 SCMR 956) would be helpful in determining the above legal proposition. The relevant excerpt is as infra;
"5. The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW -13) on 13.6.2006 is fraught with several infirmities
diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in
the statements of the witnesses under section 161, Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined -up for the identification parade without the Magistrate first
matching the description given by the complainant. Selection of the suspects, without any correl ation with description of the accused in the first information report, raises
doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/ Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009
SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul
Hafeez v. State of A.P. (AIR 1983 SC 367)."
Be that as it may, it is also admitted feature of the case that none of the victims stated
to have known earlier the appellants and the other culprits who sodomized them, thus it was incumbent upon both the victims to have had furnished the description of the perpetrators of the crime as they had only seen them for a while and that too in a gloomy night under threat of gun in a nala, where admittedly there was no light at all. Syed Muhammad (PW -3) father
of victim Samiullah (PW -1) during cross -examination, while replying a question, specifically
denied that there was availability of light on the crime scene and around. Indisputably, before
nomination of the appellants through a supplementary statement -affidavit, there was no clue
of the culprits as admittedly none of the victims had given the description of the culprits or
even suspected them until father of victim (PW -3) involved them subsequently. He (PW -3)
also failed to state as to when he came to know about the appellants and the proclaimed offenders and on which date he had submitted the affidavit to police, nominating the appellants and the proclaimed offenders.
9. Admittedly, it is now a settled law that picking out of an accused in an identification
parade is not a substantive piece of evidence, but is merely corroborative in nature. In a well celebrated judgment of 'Kanwar Anwaar Ali, Special Judicial Magistrate (PLD 2019 SC 488), the Hon'ble Supreme Court had set certain guidelines, requirements and safeguards necessary for holding a test of identification parade. The relevant para -23 of the said
judgment is reproduced herein below;
"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 summarised as under: -
(a) Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened 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 I.Os. 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 choose so that no witness could see them;
(c) identification parades should never be held at police stations;
(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 possibility 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 between 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 proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses;
(h) the Magistrate conducting the proceedings 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 lineup at the parade along with 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 CH.II.C. of Vol. III of Lahore High Court Rules and Orders."
[Emphasis added]
10. In the instant case, the identification parade was conducted at the Police Station,
which diminishes its value and makes it worthless, particularly, when no role was attributed
to the appellant Muhammad Ismail while picking him up. In view of the judgment rendered by the apex Court as well as the observations made by us in the preceding paras, we believe that it would be unsafe to place explicit reliance upon the identification parade conducted
under the supervision of Judicial Magistrate (PW -9) as well as identification in the court.
11. The medical evidence is a crucial piece of evidence in the cases concerning person -
body. Similarly, in the instant case, the medical evidence has a pivotal importance, but it is
also true that it can merely confirm the ocular account, but cannot identify the accused. The medical evidence albeit states that while examining Abdul Rehman (PW -2) by Dr. Ali
Mardan Mengal (PW -6) observed that "fresh tears seen on anal orifice at 6 o'clock position",
whereas in the case of Samiullah (PW- 1) said doctor (PW -6) observed "redness with ordem
seen around anal orifice".
Believing that the victims were subjected to carnal intercourse, even then it would not
be helpful for the case of the prosecution, particularly when the ocular account and the other circumstantial evidence do not connect the appellants with the culpability so alleged.
12. Adverting to the FSL report, the IO (PW -10) has collected pieces of shalwar of the
victims suspected to be stained with semen and blood samples of the victims for DNA and human semen analysis in the presence of Muhammad Idrees (PW -7) provided by Dr. Ali
Mardan (PW- 6). Subsequently on the arrest of appellant Muhammad Ismail, his blood and
buccal swabs were also taken into possession through recovery memo (Ex.P/7- A), which
were sent to Punjab Forensic Science Agency Lahore, whereof reports (Ex.P/10- B) and
(Ex.P/11- B) were received, but such FSL report have been found to be negative, thus, no
reliance can be placed on it.
13. As far as the case of appellant Muhammad Musa is concerned, neither he was put to
any test of identification parade nor was he medically examined by Medico Legal Officer or samples of blood and buccal swabs were taken, so his case is better than the case of appellant Muhammad Ismail, rather his case is of no evidence.
14. Aftermath of the above discussion is that the prosecution has failed to connect the
appellants with the indictment and the findings arrived at by the Trial Court have been found by us to be based upon improper appraisal of the evidence, which are unsustainable, therefore, we are persuaded to set at naught and overturn the impugned judgment.
Corollary, the captioned appeal is allowed and the impugned judgment handed down
by the Trial Court is hereby set aside, following the acquittal of the appellants of the charge. They be released from incarceration forthwith, if not detained in any other case.
MH/16/Bal. Appeal allowed.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.