BEERO Versus THE STATE
1. The present appeal is directed against the judgment dated 6-1-1999 passed by learned VI Additional Sessions Judge, Larkana in Sessions Case No.216 of 1982 State v. Beero and others by which the learned Judge had convicted the appellants under sections 394, 34, P.P.C. and sentenced them to suffer R.I. for 4 years and to pay fine of Rs.1000 each or in default thereof to undergo R.I. for 15 days more with benefit of section 382-B, Cr.P.C.
2. The facts giving rise to the present appeal are that on 26-5-1992 the complainant Laurence Johnson alongwith P.W. David Jiles were coming to Larkana from Shikarpur in a vehicle. At about 10-15 p.m. they reached at Ratodero-Larkana road near Wassan Minor. They saw a person signalling the vehicle to stop. The complainant thought that they might be police but when the vehicle was stopped the complainant saw four persons armed with Lathies and guns. They demanded valuables from them, but the complainant caught hold of handle of hatchet of one of the culprits. The other culprits caused Danda blows on the wind shield of the vehicle with the result the wind shield was broken and the complainant received injuries of broken glasses. The culprits caused fire-arm injuries to the complainant which he received on his leg. The culprits took away a purse, containing Rs.1,000, box containing documents of the complainant a purse containing Rs.27,000 from the possession of P.W. David alongwith a wrist watch. Thereafter the culprits ran away. The complainant went to police station and lodged the report which was recorded on 27-5-1982 at 1-00 a.m.
3. The police started the investigation. A foot-tracker was called who tracked the footprints but the footprints were lost. Subsequently the appellants were arrested. The appellants were put to identification test before Magistrate. The appellant Beero produced property before the police which was secured. After the arrest of the appellants the foot-tracker identified their footprints in an identification test. After completing the investigation the appellants were challaned in the Court.
4. On 13-3-1994 a charge under sections 394 and 34, P.P.C. was framed against the appellants but they pleaded not guilty. In support of the case, the prosecution examined P.W. No.1-Laurence Johnson (complainant), P.W.2 A.S.-I Sikander Ali Shah (he recorded the F.I.R.) P W 3 Khadim Hussain (Mashir of identification test of the appellants, but he was declared hostile), P.W.4 Ghulam Hussain (Mashir of the place of incident), P.W.5 H.C. Ghulam Asghar (Mashir of the injuries on the person of complainant), P.W.6 P.C. Khandal (Foot tracker), P.W.7 Ghulam Hussain (Investigating Officer, he arrested the accused and secured the property), P.W.8 H.C. Liaquat Ali (Process Server), P.W.9 Dr. Moohan Lal (Medical Officer, he examined the injured complainant) and thereafter the prosecution closed the side.
5. The appellants in their statements recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. They did not take any defence but claimed to be innocent. They also did not examine them on oath or led any evidence in their defence.
6. After considering the material available on the record, the learned trial Judge convicted the appellants as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment therefore, they have preferred the present appeal.
7. I have heard the Advocate for the appellants, Assistant A.-G. and perused the record with their assistance.
8. Learned Advocate for the appellant has stated that the complainant had supported the incident but had not stated that identification Test of the accused was held through him or he had identified the property allegedly secured with the possession of the appellants Beero. He has further stated that his evidence is not corroborated by another eye-witness who has not been examined in this case. He has further stated that the property allegedly secured from the possession of the accused was not put in the identification test or some was shown to the complainant to- identify the same to be the property which was robbed from his possession as such it has got no evidentiary value. He has further stated that the evidence of foot-tracker is of no value as he had not prepared the mould of the -footprints of the culprits, which he had seen at the place of incident and that the foot-printing test was held after 15 days and the foot-tracker had identified the footprints from his memory as such the evidence of foot-tracker has got no value. He has further stated that the identification of appellants in Court has no value therefore, he has prayed that the appellants may be acquitted.
9. On the other hand, learned Assistant A.-G. has stated that the prosecution case is based upon the identification test of the appellants through the complainant who identified them in Court to be the culprits of this case and has relied upon, the case of Ghulam Nabi v. The State 2000 PCr.LJ 920. He has further stated that the case of the prosecution is further based on the recovery of the articles from the possession of appellant Beero and identification of footprints of the foot-tracker. He has further stated that all the pieces of evidence have been proved from the evidence available on the record therefore, the appellants are involved in the case and the prosecution have proved the case against them beyond any shadow of doubt. He has further stated that solitary evidence of complainant is sufficient to convict the appellant. He has relied upon Mushtaq Ahmed v. The State 2000 PCr.LJ 1136.
10. I have given due consideration to the arguments and find that the case of the prosecution is based upon the following pieces of evidence:--
(1) Ocular testimony of the complainant.
(2) Identification of the appellant in Court through complainant.
(3) Recovery of articles from the possession of Beero.
(4) Identification of footprints of the appellants through the foot-tracker.
11. First of all I will take up the ocular testimony. The prosecution have examined the complainant. He has supported the incident by stating that he and P.W. Davin were coming from Shikarpur and going to Larkana, when they reached at the place of incident, 4 persons armed with hatchets and guns robbed him and P.W. David and that the culprits had caused injuries to him and he also received fire-arm injury on his foot. He has given the details of snatched property from his possession as three boxes containing office documents, purse, pen, some receipts and from the possession of P.W. David purse containing Rs.2700 a box containing receipts and a wrist watch. The evidence u. complainant went unchallenged as no cross- examination was conducted to challenge the above piece, of evidence. In this case the second eye-witness David has not been examined by the prosecution on the ground that he was not traceable. The trial Court examined the process server who was entrusted with the non-bailable warrants of arrest of the P.W. David but the said warrants returned un-served on the ground that the witness was not traceable as such only one witness was examined who has supported the incident which went unchallenged. As such the incident of robbery has been proved.
12. As regard the identification, it is pointed out that during the investigation of the appellants, an identification test was held before the Magistrate in presence of Mashirs. In order to prove the said fact one Mashir; P.W. Khadim Hussain was examined but he did not support the prosecution case as he stated that the police had only obtained his signature on a Mashimama of identification test which he produced as Exh.11. This witness was declared hostile by the learned prosecutor but nothing was brought on the record to prove the identification test. The prosecution did not examine co-Mashir or the Magistrate before whom the identification test was held. As such the prosecution have failed to prove the identification of the appellants held before the Magistrate.
13. The second piece of evidence with regard to the identification of the appellants is their identification in Court through complainant. The complainant stated that the appellants present in Court were same. Now it is to be seen as to whether such identification is sufficient to connect the appellants. The said point was examined by a C Division Bench of this Court in an unreported case Special A.T.A. Nos.164 of 1999 and 175 of 1999 decided on 21-11-2002 in which the decision of Federal Court and two decisions of Honourable Supreme Court of Pakistan were considered and finally it was observed that the identification test of the accused in the Court has got no value. Relevant portion of the judgment is as under:
14. "This point is being agitated since long. In the year 1945 similar question arose before the Honourable Federal Court in a case of Sahdeed Gosain v. Emperor reported in 46 Cr. LJ 1945. The facts of the case are that several persons participated in the commission of offence of rioting. The witnesses identified some of the rioters. Some of the persons, who were not identified, were also challaned alongwith the persons who were identified by the witnesses. During the recording of evidence witnesses identified the rioters whose identification test was not held in the Court to be the rioters. The trial Court convicted those persons. The conviction was maintained by the High Court and then the matter went to the Federal Court where the appellants were acquitted by holding that such identification of accused was of no value. It was observed by the Federal Court that where a witness had not named the accused in his evidence at the trial as a person already known to him who had participated in the riot, but had merely picked him out as one of the rioters while identifying those accused persons in the dock whom he had already named in his evidence as participants in the riot, the evidence of the witness against the accused is of no value whatever, it was further observed that failure of the witness to mention the accused's name in his statement to the Magistrate robs his subsequent statement against such accused made at the trial nearly four months later of all value.
15. Similar point was also raised before the Honourable Supreme Court of Pakistan in a case of Asghar Ali v. The State 1992 SCMR 2088. In that case an accused was not identified therefore, not named in the F. I. R. After his arrest an identification test was held. At the, trial, the trial Court discarded the identification test but relied upon the identification of the accused in the Court by the witness and convicted him. In such situation the Honourable Supreme Court of Pakistan did not approve such type of identification of the accused by the P. Ws. in the Court and observed at page 2097 as under:
16. "The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving by identify of the culprit."
17. In an other case of Tayyab v. The State reported in 1995 SCMR 412 same view was taken and at page 414 it was observed as under:
18. "As far as the statement of Muhammad Moosa is concerned he did not appear when the Identification Parade was arranged and was called for recording his statement at the trial. It was at the time of recording such evidence that he stated, pointing towards Tayyab, that he was the man who abducted him. Such evidence can hardly be relied upon as identification of the accused and corroboration to other evidence and made basis for conviction. "
19. In the present case identification test was allegedly held before the Magistrate and in presence of two Mashies. The prosecution examined one Mashir who did not support the said identification test and no other witness was examined to prove the said identification.
20. Even the complainant in his deposition has not stated that the identified the appellants in an identification test held before the Magistrate.
21. Following the above authorities, it is held that the identification of the appellants in Court in the present circumstances of the case has got no evidentiary value.
22. As regards the recovery of articles, the prosecution has examined S.H.O. Ghulam Hussain who stated that on 9-6-1982, he had arrested the appellants Beero who led the police party and produced one brief case containing a ball point, one pocket comb, chip-board, one Bible having leather cover, one bottle of Shampoo; two medical instruments, cash of Rs. 2445 one passport of complainant of U.S.A., one additional permit in the name of complainant addressed to S.S.P. Larkana, in his presence and Mashirs and a Mashirnama was prepared. Some of the above property was produced in the Court and the witness stated as under:
23. "The property excepting the gun and live cartridges is not available in Court. However, one small and large scissors, cash of Rs.2445, bottle of shampoo, pen, comb and papers alongwith brief-case lying in the Court are same. "
24. From the above position, it is clear that neither the passport of complainant nor the other articles which were allegedly secured from the possession of appellant Beero were produced before the Court for identification from the P.W., S.H.O. Ghulam Hussain that the same were recovered from the possession of appellant. However the property available in the Court was or common nature which are easily available in open market. Furthermore, the said property was never put to the identification test through the complainant before a Magistrate. Even this property was not shown to the complainant for identification when his statement was recorded to identify that it was the same property which was robbed from him. As such under the circumstances of the present case, the recovery of the above articles has got no value as the same has not been connected with the commission of this crime.
25. As regards the evidence of foot -tracker, P.W. P.C. Khandal. He stated in his evidence that on 27-5-1982 he had seen the foot-prints of the culprits at the Vardat. On 12-6-1982 he had seen the foot-prints of the seven persons in the office of Mukhtiarkar out of which he identified the foot-prints of three persons to be the foot-prints which he had seen at the place of incident. In cross- examination he admitted that he had not prepared the moulds of the foot-prints which he had seen at the place of incident but identified the same in the office of Magistrate from his memory and further added that the said identification was according to estimate and some time the said estimate might be correct or might not be. From the above evidence, it is clear that the identification of foot-prints took place after 15 days of the incident and that too from the memory of the witness. This type of identification has got no value. A reliance is placed on Shafu alias Shafi Muhammad v. The Crown 1971 SCMR 200 at page 204 their lordships observed as under:
26. "The person who is alleged to have identified the foot-prints had seen the foot-prints at the place of occurrence 20 days before he was asked to identify the foot-prints of the appellant. He had made no moulds of the foot-prints found at the place of occurrence and he is supposed to have carried an impression of those foot prints in his mind for a period of three weeks. Evidence of this description must be totally discarded. "
27. In view of the above position the foot-prints test has got no value therefore, the same is discarded.
28. After considering the material available on the record. I am of the considered view that the prosecution have failed to prove the case against the appellants. As such the conviction and sentence awarded under the impugned judgment is set aside. The appellants are acquitted and set at liberty. The appellants are on bail. Their sureties are discharged and bail bonds stands cancelled.
29. H.B.T./B-76/K Appeal accepted.