HAKEEM and others vs The STATE

FAISAL ARAB, J.---Appellants and petitioner along with three others namely Khan, Haji Bodo and Khuda Bux were accused in Crime No. 69 of 1989 registered under sections 302, 307 (now 324), 452, 147, 148, 149 and 504, P.P.C. at Police Station Gharo, Hyderabad for committing murder of ten persons and injuring 15 others. Accused Khan son of Hashim Chandio did not join trial and remained absconder whereas accused Khuda Bux died during the trial. The Trial Court vide its judgment dated 15.07.2010 convicted all the remaining accused under section 302(b), P.P.C. and sentenced them to suffer imprisonment for life. They were further convicted under section 307, P.P.C. (now 324) as well as under section 452, Cr.P.C. and sentenced to suffer imprisonment for 10 years and 07 years respectively. All sentences were directed to run concurrently. Benefit of section 382-B, Cr.P.C. was also , extended to accused Janan as he was in custody whereas the remaining accused were on bail. The learned High Court vide impugned judgment maintained the convictions and sentences recorded by the Trial Court. Hence,. these appeals and jail petition.

2.The prosecution story briefly stated is that on the fateful day at about 10.30 p.m. the accused along with others, who were carrying firearms, launched an attacked on the complainant's house and committed murder of ten persons and injured 15 others.

3. Complainant Wall Muhammad in his deposition has stated that an electric bulb on the electric poll was on which was at a distance of 10/12 feet from the outer door of his house; that their house was inside 50/60 feet from outer door and the morcha where he was hiding was about 20/25 feet from his house. So, there was a distance of about 30/40 feet from the morcha and from such a distance, it was very A difficult to identify several aemsed persons with certainty. Even otherwise, neither empties were recovered from the place of incident nor any firearm was recovered from the accused.

4.It has come on record that there was an old blood feud between the parties, therefore, the possibility that accused were already known to the complainant cannot be ruled out yet neither the present appellants nor the petitioner were nominated in the FIR except Ramzan son of Allah Bux. They were picked up by the prosecution witnesses in the identification parade. As to the identification parade, the same was not held in accordance with the guidelines contained in the Police Rules, 1934. The Rule 26.32(1)(d) inter alia require "the suspects shall be placed among other persons similarly dressed and of the same religion and social status, in the proportion of 8 or 9 such persons to one suspect. Each witness shall then be brought up separately to attempt his identification. Care shall be taken that the remaining witnesses are "still kept out of sight and hearing and that no opportunity is permitted for communications to pass between witnesses who have been called up and those who have not." PW-5, Imdad Ali, Assistant Mukhtiarkar, Mirpursakro, in whose presence the identification parade was conducted, has stated in his deposition that he arranged 22 dummies. He deposed "the accused persons namely Ghulam Mustafa, Bodo, Noor Mohammad, Khuda Bux, Usman, Hakim and Imdad were mixed up in the row with damies (sic) according to their choice and thereafter the complainant Wali Muhammad and PWs Jan Mohammad and Abdullah picked them up from the row." So in-fact seven accused were lined up with dummies for identification. Furthermore, during the identification parade, no specific role played in the incident was assigned to any particular accused. This Court in the case of Azhar Mehmood v. State (2017 SCM R 135) has held that in an identification parade, if the accused were identified without reference to any role played by them in the incident, the same is of no evidentiary value. A quote from the judgment of Azhar Mehmood's case is as follows:- "We have gone through the statements made by the supervising Magistrates, i.e. PW5 and PW10 as well as the proceedings of the test identification -parades and have straightaway noticed that in the said parades the present appellants had not been identified with reference to any role played by them in the incident in issue. It has consistently been held by this Court that such a test identification parade is legally laconic and is of no evidentiary value and a reference in this respect may be made to the cases of Khadim Hussain v. The State (1985 SCMR 721), Ghulam Rasul and 3 others v. The State (1988 SCMR 557), Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Siraj-ul-Haq and another v. The State (2008 SCMR 302), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Shafqat Mehmood and others v. The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563) and Muhammad Fayyaz v. The State (2012 SCMR 522)"

5. This Court in the case of Bacha Zeb v. The State (2010 SCM R 1189) after relying upon earlier decision of this Court in the case of Lal Pasand v. The State (PLD 1981 SC 142) held that it would be unreasonable to mix five accused persons with several other persons for the purposes of identification as such a larger number of persons would only confuse the identifying witnesses and the proper course is to have separate identification parades for each accused. Keeping in view the manner in which the identification parade was held, such identification parade cannot be relied upon to award the accused punishment of life imprisonment, who on account of old blood feud may also be already known to the complainant.

6. For what has been discussed above, the prosecution has failed to prove its case against the appellants-petitioner beyond reasonable doubt. Consequently, Criminal Appeals Nos. 6-K and 7-K of 2015 are allowed, Jail Petition No. 88/2015 is converted into appeal and allowed, the impugned judgment is set aside and all the appellants and the petitioner of Jail Petition are acquitted of charge by giving them benefit of doubt. They shall be released from jail forthwith, unless detained in any other case.