SHAHBAZ alias Gillo Versus State
ISHTIAQ IBRAHIM, J.--- The petitioner, Shahbaz alias Gillo, along with co-accused Muhammad Saleem, Lal Shameer, Muhammad Khalid, Altaf, Sajjad, Ibrahim, Aftab, and Aslam, was charged with the murder of Muhammad Shahid (deceased) in FIR No. 631 dated 07.07.2011, registered under Sections 302, 148, and 149, P.P.C. at Police Station Saddar Jaranwala, District Faisalabad (the Trial Court ). Upon conclusion of the trial, the Trial Court, vide judgment dated 28.04.2015, acquitted co-accused Lal Shameer, Altaf, Sajjad, Ibrahim, Aftab, and Aslam. However, the petitioner was convicted under Section 302(b), P.P.C. and sentenced to death as Ta zir, along with a direction to pay compensation of Rs. 200,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C., and in default thereof, to undergo simple imprisonment for six months. Co-accused Muhammad Saleem was also convicted under Section 302(b), P.P.C. and sentenced to imprisonment for life.
2. The Lahore High Court, Lahore ( High Court ), vide judgment dated 18.04.2018, partly allowed the appeal filed by the convicts and acquitted convict Muhammad Saleem, however, maintained the conviction of the petitioner, but reduced his sentence from death to imprisonment for life. Consequently, Murder Reference No. 336 of 2015 was answered in the negative.
3. Aggrieved by the impugned judgment of the High Court, the petitioner has filed the instant petition for leave to appeal.
4. As per the prosecution s case set out in FIR (Exh. CW.4/1), on 07.07.2011 at about 6:00 p.m., the complainant Nazir Ahmad, along with his son Muhammad Shahid (deceased), his brother Bashir Ahmad, and one Muhammad Asif, was sitting outside the baithak of his house. At that time, the petitioner-convict, armed with a .244 bore rifle and accompanied by co-accused (since acquitted), arrived at the spot. Upon a lalkara raised by co-accused Lal Shameer, the petitioner-convict fired at Muhammad Shahid deceased, as a result, he got hit on his chest, and died on the spot. The firing by the co-accused (since acquitted) hit the walls of the baithak. The complainant, Bashir Ahmad, and Muhammad Asif saved themselves by taking shelter inside. The motive alleged by the prosecution was that approximately one year prior to the occurrence, the deceased had abducted Mst. Samina Bibi, a close relative of the accused party, and the present occurrence was committed in retaliation.
5. We have heard the learned counsel for the petitioner as well as the learned Additional Prosecutor General, Punjab, representing the State, and have examined the record, evidence, and judgments of the courts below with their assistance.
6. The learned High Court has already declared the recovery of Kalashnikov allegedly effected at the instance of the petitioner-convict to be inconsequential for valid reasons. The motive set up by the prosecution has also not been believed by the High Court and such findings are based upon proper appreciation of material on record. The FIR was lodged at 8:00 PM on 7.7.11, showing a two-hour delay from the 6:00 PM occurrence that remains unexplained. Furthermore, a significant delay occurred in the postmortem examination, which was not conducted until 5:00 AM the following morning on 8.7.11. The conviction of the petitioner-convict rests solely upon the ocular account furnished by complainant Nazir Ahmad (aged about 50 years) and Bashir Ahmad PW.2 (aged about 60 years), who claimed themselves to be eye-witnesses of the occurrence and medical evidence of Dr. Asfand Yar. As per statements of the alleged eye-witnesses, the occurrence took place at about 6:00 p.m. in the month of July. In the site plan (Exh.PA), the deceased is shown at point No.1 and the petitioner-convict at point No.2, with an inter se distance of 240 feet (approximately 73 meters). Although a specific role of firing upon the deceased with a .244 bore rifle has been attributed to the petitioner-convict by the witnesses, yet the circumstances attending the occurrence render such attribution highly doubtful.
7. This Court in Mian Sohail Ahmed v. State (2019 SCMR 956) extensively elaborated upon the concept of "Estimator Variables," which are witness-related factors that fundamentally affect the accuracy of memory retention and retrieval. This Court recognized that these variables are beyond the control of the legal system but are critical in determining the weight of an identification by an eye-witness. This court cited a number of these variables in Mian Sohail Ahmed (supra) , of which we are specifically concerned with the variable of distance and light and its impact on the reliability of the identification by the eye-witnesses in regard to the case at hand.
8. Distance and lighting serve as the two primary pillars for assessing the weight of an identification by an eye-witness. As elaborated by the New Jersey Supreme Court in the case of S v. Henderson [27 A.3d 872 (NJ 2011)] , the reliability of an eye-witness is inversely proportional to the distance of the observation; simply put, while proximity ensures clarity, a greater distance physically erodes the witness's ability to identify distinguishing facial features. This degradation is further exacerbated by poor lighting, which reduces the visual 'signal' reaching the eye, making it biologically harder to perceive accurately. Scientific studies on visual perception indicates that beyond a certain range, the ability of a witness to accurately identify a person deteriorates sharply and approaches a level akin to mere guesswork. A pivotal study 1 published in Law and Human Behavior on the reliability of eye-witness identification examines the impact of distance through the lens of diagnosticity. Diagnosticity refers to the probative reliability of eye-witness identification, namely, the extent to which an identification is capable of distinguishing the actual offender from an innocent person. The higher the diagnosticity ratio, the more likely the suspect identification is reliable. The research demonstrates a sharp decline in accuracy as distance increases, finding that at 40 meters, diagnosticity was already 50% lower than it was at 5 meters, and with increased distance, this reliability continued to taper off until it reached a value of 1 ( 0.5) at 100 meters for all age groups. In scientific terms, a diagnosticity of 1 means the identification has no evidentiary value, as the witness is statistically just as likely to pick an innocent person as they are the guilty party. Consequently, at a distance of 240 feet (approximately 73 meters), the witness's ability to provide a reliable identification is severely compromised, moving away from factual recognition and toward a result that is mathematically equivalent to a random guess. Similar view was adopted in Ameeruddin v. State [PLD 2025 SC 383] , where this Court discarded the eye-witness testimony on the grounds of physical impossibility, ruling that a perpetrator cannot be reliably identified from a long distance such as 500 meters.
9. We are of the view that to ensure a fair assessment in criminal cases, the court must evaluate eye-witness testimony by carefully weighing the specific circumstances surrounding the observation such as the distance between the witness and the perpetrator, the exposure duration, the quality of the opportunity to see the perpetrator, the prevailing lighting conditions, the physical condition of both the witness and the accused, and so on. By scrutinizing these estimator variables, the court can determine the reliability and diagnostic value of the identification, ensuring that the testimony is adequately assessed against the required standards of criminal justice.
10. Upon application of the discussed estimator variables to the eye-witnesses in the case at hand, several critical factors converge to undermine the reliability of the identification. The site plan [Ex. CW8/1] indicates a distance of 48 Karams (approximately 240 feet) between the convict-petitioner and the eye-witnesses. This is a substantial distance which, in any circumstance, drastically reduces the diagnostic value of a visual identification. This unreliability is further exacerbated by the factor of lighting, as the occurrence allegedly took place during dusk hours. At dusk, the human eye struggles with "mesopic vision," where the lack of sufficient light lowers the visual acuity. In addition to these factors, the advanced age of the witnesses that is 50 [PW-1] and 60 years [PW-2] comes into play. When these three variables are combined with the high-stress environment involving multiple accused persons allegedly armed with different weapons and firing simultaneously coupled with the fact that the eye-witnesses during firing allegedly took shelter inside the Bhaitak, the resulting identification becomes unsafe and scientifically unsound.
11. Furthermore, in a scenario where as many as eight accused persons were allegedly resorting to indiscriminate firing, it would be humanly difficult to ascertain with any degree of certainty from a distance of 240 feet as to whose shot actually hit the deceased. This aspect of the case strikes at the root of the prosecution s version and creates a serious dent in its credibility. Unfortunately, this vital aspect has not received due consideration at the hands of the courts below. It is a settled principle of criminal jurisprudence that if a single circumstance creates reasonable doubt in the mind of a prudent person regarding the guilt of the accused, the accused becomes entitled to the benefit of such doubt as a matter of right and not of grace. In the case in hand, the doubtful nature of identification owing to the considerable distance, coupled with the improbability of attributing the fatal shot in a situation of indiscriminate firing by multiple accused persons, constitutes a circumstance sufficient to extend the benefit of doubt to the petitioner-convict.
12. For what has been discussed above, this petition is converted into an appeal and allowed. The conviction and sentence of the appellant Shahbaz alias Gillo recorded by the Courts below are set aside and he is acquitted of the charge. He shall be released forthwith, if not confined in any other case.
JK/S-10/SC Appeal allowed.
1 Nyman TJ, Lampinen JM, Antfolk J, Korkman J, Santtila P. The distance threshold of reliable eyewitness identification. Law Hum Behav. 2019 Dec;43(6):527-541.