Law Points

Accused had been shown to the eye-witnesses before holding of the test identification parade | Acquitted

2018 S C M R 577
[Supreme Court of Pakistan]
Present: Asif Saeed Khan Khosa, Mushir Alam and Dost Muhammad Khan, JJ
KAMAL DIN alias KAMALA—Appellant
Versus
The STATE—Respondent

(a) Penal Code (XLV of 1860)—

—-Ss. 302(b), 324 & 34—Qanun-e-Shahadat (10 of 1984), Art. 22—Qatl-i-amd, attempt to commit
qatl-i-amd, common intention—Re-appraisal of evidence—Benefit of doubt—In the FIR the culprits
had not been nominated and they were mentioned as unknown—No description of the culprits had
been recorded in the FIR—Accused had been arrested in connection with the present case at a time
when he was already under arrest in connection with some other criminal case—According to the FIR
itself the firing resorted to at the spot had been made from behind some trees, and, thus, at best the
injured eye-witnesses under assault could only have a fleeting glance at the assailants while the
witnesses were taking shelter and were running for their lives—Investigating officer had clearly stated
that he could not deny that the accused had been shown to the eye-witnesses before holding of the test
identification parade—One of the injured eye-witnesses, had acknowledged before the Trial Court
that the accused persons had been shown to him at the police station before holding of the test
identification parade—Proceedings of the test identification parade clearly showed that the accused
had not been picked up by the eye-witnesses with reference to any role played by him during the
occurrence—Apart from that the test identification parade was a joint parade wherein two accused
persons had been made to stand with dummies in two lines and their identification had taken place
simultaneously in one go, which was the improper procedure for holding such a parade—Safe custody
of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been
proved by the prosecution before the Trial Court through production of any witness concerned with
such custody and transmission—Two of the eyewitnesses had been declared hostile as they had
refused to support the case of the prosecution—One of the co-accused had been acquitted of the
charge and his acquittal had not been challenged by the State or the complainant party before the High
Court—Prosecution had failed to prove its case against the accused beyond reasonable doubt—
Convictions and sentences of the accused recorded and upheld by the courts below were set aside and
he was acquitted of the charge by extending the benefit of doubt to him.

(b) Qanun-e-Shahadat (10 of 1984)——-

Art. 22—Test identification parade—Identification of an accused person without reference to the
role allegedly played by him during the occurrence was shorn of any evidentiary value.
1 of 4
Azhar Mehmood and others v. The State 2017 SCMR 135; Muhammad Fayyaz v. The State
2012 SCMR 522; Shafqat Mehmood and others v. The State 2011 SCMR 537 and Sabir Ali alias
Fauji v. The State 2011 SCMR 563 ref.

(c) Qanun-e-Shahadat (10 of 1984)—

—-Art. 22—Test identification parade—Identification of many accused persons in one go was not
proper besides being unsafe.
Lal Pasand v. The State PLD 1981 SC 142; Ziaullah alias Jaji v. The State 2008 SCMR 1210;
Bacha Zeb v. The State 2010 SCMR 1189; Shafqat Mehmood and others v. The State 2011 SCMR
537 and Gulfam and another v. The State 2017 SCMR 1189 ref.

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