Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Asif Saeed Khan Khosa, CJ and Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ. set aside the convictions and sentences of Abdul Rashid and Rashid Aziz Rana and acquitted them of the charge by extending the benefit of doubt to them. Criminal Appeal No. 306-L of 2012 seeking enhancement of the sentence of Abdul Rashid was dismissed.

Dr Tofeeq Ahmed was robbed and shot dead in the driving seat of his car in 2006. An FIR was registered against two unknown persons, at Police Station North Cantonment, Lahore under Sections 392 and 203 of the Pakistan Penal Code, 1860 on 30-08-2006. Upon appeal, the convictions and sentences of the appellants were maintained to the extent that the sentence of death in the case of Abdul Rashid (appellant) was converted into imprisonment for life.

The Court, based on the arguments put forth by the learned counsel for the parties, observed that the case of the prosecution mainly hinged on the ocular account of two eye witnesses, PW 8 and PW 11. The Court noted that there was a delay of 15 hours in the post-mortem examination.  Further on, the Court reasoned that there was no blackening reported in the post-mortem examination reports which shouldn’t be the case as the shot was fired from a distance of 4 feet and hence would have caused blackening. The Court, on account of these discrepancies in the procedure, held that there was a ring of suspicion cast around the probability and credence of the prosecution’s story.

Then the Court discussed the Test Identification Parade (TIP) that was conducted to verify the identity of the appellants. The Court observed that the TIP was silent regarding the description of the unknown accused given by the complainant in the report while a TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161 CrPC have been arrested. The Court cited State/Government of Sindh v. Sobharo, 1993 SCMR 585 to opine that selection of the suspects, without any correlation with a description of the accused in the first information report, raised doubts and made the identification proceedings doubtful rendering the identification evidence inconsequential. The Court also referred to Kanwar Anwaar Ali, PLJ 2019 Sc (Cr.C.) 153 and stated that joint parade passed for suggestive and indicative identification, compromising the reliability of the witness and opening doors to misidentification, rendering TIP untrustworthy. In view of the above, the Court held that the Test Identification Parade conducted in the present case was fraught with several infirmities diminishing its evidentiary value.

The Court then proceeded to discuss the testimony of the eye witness for which the Court relied upon Mohammed Yaqoob (1989 P Cr.L.J. 2227) in which the Lahore High Court observed, “A witness may be honest, independent and truthful but then his memory may be faulty.”  In view of this, the Court underlined the importance of assessing the ability and capacity of the eye witness, separately, to identify the accused in the circumstances of the case. The Court then citing scientific research of Daniel B. Wright & Anne T. McDaid which established that estimator variables like stress, weapon focus, duration, distance and lighting, witness characteristics, characteristics of perpetrator and memory decay negatively affected the memory process, opined that identification of an accused, therefore, was a two-step process. First, the suspects underwent a test identification parade and second, the credibility of the eye witness was assessed by weighing the evidence in the light of the estimator variables.

The Court, analyzing the aforementioned estimator variables, acquitted the appellants of the charge by extending them the benefit of doubt as it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat. The Court also dismissed the appeal seeking enhancement of the sentence of Abdul Rashid.[Mian Sohail Ahmed v. State, 2019 SCC OnLine Pak SC 12, decided on 24-04-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Division Bench of Asif Saeed Khan Khosa, C.J. and Syed Mansoor Ali Shah, J. in the current order consolidated all the relevant precedents and the best practices pertaining to the Test Identification Parade so as to remove confusions regarding their legal position in future.

The case at hand pertained to an alleged abduction for ransom and murder and admittedly the case depended upon some pieces of circumstantial evidence. The appellant herein was convicted and sentenced for offences under Sections 302(b) and 347 read with Section 34 of the Pakistan Penal Code and Section 7(a) of the Anti-Terrorism Act, 1997 (the Act). He was sentenced to death by the trial court. Aggrieved thereby, the appellant challenged his conviction and sentences before the High Court through an appeal which was partly allowed. The convictions and sentences of the appellant for the offences under Section 347 of PPC and Section 7(a) of the Act were set aside but his conviction for the offence under Section 302(b) PPC was upheld. The High Court reduced his sentence of death for the offence of murder to imprisonment for life. Leave to appeal was granted in this case in order to reappraise the evidence and the Supreme Court exercised this in the current case.

The Supreme Court while reappraising the evidences observed that prosecution had failed to prove its case beyond a reasonable doubt. But the Court doubted the competence and capability of the Special Judicial Magistrate appearing before the Trial Court such that he disregarded the law declared by the Court in its precedents and made a very important piece of evidence reduced in worth due to which the prosecution had to suffer irretrievably. During the Test Identification Parade, he conducted more than one accused in one go which the Court observed was against law.

The Court relied on the precedents in the cases of Lal Pasand v.  State, PLD 1981 SC 142, Imran Ashraf v. State, 2001 SCMR 424, Ziaullah v. State, 2008 SCMR 1210, Bacha Zeb v. State, 2010 SCMR 1189, Shafqat Mehmood v.  State, 2011 SCMR 537, Gulfam v. State, 2017 SCMR 1189, Hakeem v. State, 2017 SCMR 1546 and Kamal Din v. State, 2018 SCMR 577, and held that identification of many accused persons in one line in one go during a test identification parade was improper. It observed, “it has been clarified by this Court on a number of occasions that every accused person is to be put to a separate test identification parade.”

 The Court also pointed that, “a test identification parade and correct pointing out of an accused person by an eyewitness therein is not a substantive piece of evidence and failure to hold a test identification parade is not always fatal to the prosecution’s case and a reference in this respect may be made to the cases of Muhammad Akram Rahi v. State, 2011 SCMR 87 and Ghazanfar Ali v State, 2012 SCMR 215.”

Thus, all the laws and practices regarding the Test Identification Parade were brought together by the Court in this order so as to remove any confusion regarding the same. The Court also held that henceforth serious steps would be taken in case of non-compliance or disregard of the requirements and safeguards mentioned.[Asfand Yar Khan v. State, 2019 SCC OnLine Pak SC 11, decided on 22-02-2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ. dismissed an appeal filed by the State of U.P. against the judgment of Allahabad High Court whereby it had reversed the decision the decision of trial court and acquitted the accused of charges under Sections 302 and 307 read with 149, Section 148 IPC and Section 7 of Criminal Law (Amendment) Act, 1932.

The accused persons were alleged to have participated in rioting and injuring the deceased (a senior official) with fire shots which resulted in his death. The accused were tried and convicted by the trial court for the offences mentioned above. However, on appeal by the accused persons, the High Court reversed the conviction and acquitted them. Aggrieved thereby, State of U.P. filed the instant appeal.

On perusal of the record, the Supreme Court was of the view that the judgment of the High Court needs no interference. The Court noted several laches in the investigation which went to root of the matter and resulted in acquittal:

  • Unexplained delay of 55 days in conducting Test Identification Parade.
  • Suspicion over post-mortem report and FSL report being incompatible with each other.
  • Doubtful recovery of pistol from accused.
  • Prosecution’s failure to ascertain with precision the place of incidence.
  • Non-examination of crucial witness (the other injured person in the incident) and failure of adducing independent witness.

Observing that suspicion however grave, cannot take place of proof, the Court gave benefit of doubt to the accused and upheld the High Court’s judgment of acquittal. The appeal filed by the State was dismissed. [State of U.P. v. Wasif Haider,2018 SCC OnLine SC 2740, decided on 10-12-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. dismissed an appeal filed against the judgment and order of the Additional District Judge whereby the appellant along with seven others was convicted under Section 395 IPC.

In January 2005, the accused persons committed a dacoity in Samali Primary Block Health Center and took away Rs 6,74,784 by placing a bhojali (large knife) on the throat of one of the official. The accused persons were apprehended and convicted as mentioned above. While challenging the judgment of conviction, it was argued by the appellant that he was not identified by the seizure witness in Court. Also, that he was not identified in TI parade.

The High Court, while rejecting the submission of the appellant, held that in case of the appellant, the TI parade would have been useless. The appellant was absconding in January (when incident occurred) and was apprehended only in September. He was, however, named in the first charge sheet. The Court held that it was useless to conduct any TI parade of the appellant after a period of 9 months of the incident. For such and other reasons, the appeal was dismissed. While concluding, the Court also found that the money involved in the case that was recovered had not been deposited in the treasury which was indeed shocking. As such, the Court recommended departmental enquiry for major penalty and also criminal proceedings against the Investigating Officers concerned. [Madha Rai v. State of W.B.,2018 SCC OnLine Cal 5882, dated 31-08-2018]

Case BriefsSupreme Court

Supreme Court: N.V. Ramana, J., delivered the judgment for himself and S. Abdul Nazeer, J., dismissing the appeal filed against the decision of Patna High Court affirming the conviction and sentence awarded to the appellant by the trial court.

The appellant along with other co-accused was convicted under Section 396 IPC. Allegations against them were that they committed dacoity in the house of Kamdeo Singh and assaulting his family members while committing the act. One Kameshwar Singh, father-in-law of Kamdeo, succumbed to such injuries. The judgment of conviction and order of sentence passed by the trial court was affirmed by the High Court. Aggrieved thus, the appellant preferred the instant appeal.

The Supreme Court heard the parties and perused the record. The appellant had contended, inter alia, that there was no test identification parade which vitiated the prosecution case. Rejecting the contention, the Court, observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court. For such and other reasons, the Court dismissed the appeal filed by the convict-appellant. The impugned order was upheld. [Raju Manjhi v. State of Bihar,2018 SCC OnLine SC 778, decided on 02-08-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Aditya Kumar Trivedi, J. allowed a criminal appeal and set aside the conviction and sentence of the appellant under Section 307, 333 and 34 IPC along with Section 27(1) of Arms Act.

The appellant was accused of firing gunshot at the injured Assistant Sub-Inspector (informant) while he was returning from election duty. It was alleged that the appellant came on a motorcycle from behind along with the co-accused and fired gunshot at the petitioner thereby injuring him. The FIR was registered in the case, the appellant was apprehended, charge sheet filed, and he was tried, convicted and sentenced as mentioned above. The appellant challenged the order of the trial court in the instant appeal.

The High Court, on a careful consideration of the record, inter alia observed that the informant saw the appellant who came from behind, only after the gunshot had been fired. As there was no other person to be seen on the road, the informant inferred that it was the appellant who had injured him. The conviction was based on the fardbeyan of the informant, and such inference as was made by the informant could not be made a basis for conviction of the appellant. Further, identification of the appellant was done by the informant while he was in the police station in another case, and no proper test identification parade was conducted which was another irregularity which demanded consideration while deciding the case. In such circumstances, the High Court allowed the appeal and set aside the order of conviction and sentence passed against the appellant. [Santosh Yadav v. State of Bihar,2018 SCC OnLine Pat 955, dated 29.05.2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: The conviction of the appellant under Section 364-A IPC was altered to Section 365 by a Division Bench comprising of J.P. Gupta and Anjuli Palo, JJ.

The appellant was found guilty by the trial court for the alleged offence of kidnapping the victim. It was alleged that he kidnapped the victim and released him only after receiving a ransom of Rs. 40000. The appellant contended that he was falsely implicated in the case. He challenged the decision of the trial court whereby he was convicted and sentenced under Section 364-A of IPC.

The High Court gave due consideration to the material available on record and held that the fact that the Executive Magistrate  concerned did not prove the Test Identification Parade do not make it inadmissible. Section 291-A CrPC provides that such evidence is permitted even in absence of formal proof by the concerned Executive Magistrate. However, the Court also found that there were material discrepancies in the statements of the witnesses. Further, it was nowhere alleged that the appellant threatened the victim to cause death or hurt. Neither the fact of ransom taken by the appellant was proved beyond reasonable doubt. Therefore, the Court was of the view that the appellant could not be convicted under Section 364-A. However, his conviction was altered to that under Section 365 IPC. Accordingly, the appeal was partly allowed. [Shiv Murat Kol v. State of M.P.,  2018 SCC OnLine MP 336, dated 07-05-2018]