15/12/2024, 11:18 2019 S C M R 956

2019 S C M R 956
[Supreme Court of Pakistan]
Present: Asif Saeed Khan Khosa, C.J., Sajjad Ali Shah and Syed Mansoor Ali
Shah, JJ
Mian SOHAIL AHMED and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeals Nos. 306-L, 307-L and 308-L of 2012, decided on 24th April,
2019.
(Against the judgment dated 25.01.2012 passed by the Lahore High Court,
Lahore in Criminal Appeal No. 383 of 2007 and Murder Reference No. 44 of 2007)
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 392, 411 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
robbery, dishonestly receiving stolen property, common intention---Reappraisal of
evidence---Benefit of doubt---Belated post-mortem examination---Deceased and
complainant were in their car, when the accused and the co-accused allegedly tried
to rob them---During the incident the deceased was shot and murdered---Accused
persons were sentenced to death, however on appeal the sentence of one of the
accused was reduced to imprisonment for life---Held, that case of the prosecution
rested on the ocular account of two eye-witnesses---Testimony of one of the said
witnesses and his presence at the scene of the crime had been rightly disbelieved by
the High Court---According to the doctor at the hospital the post-mortem
examination took place 15 hours after the body of the deceased was brought to the
hospital---Such delay in the post-mortem examination, when the occurrence was
promptly reported and formal FIR was registered within 15 minutes gave rise to an
inference that the incident was not reported as stated by the prosecution---
Complainant, who claimed to be on the passenger seat, must have single-handedly
moved the deceased, who was on the driving seat, to another seat in the car, and in
the process soiled other seats and his clothes with blood; however, there was no
evidence on the record to support such fact---Convictions and sentences of accused
persons were set aside and they were acquitted of the charge by extending the
benefit of doubt to them---Appeals were allowed accordingly.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 392, 411 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
robbery, dishonestly receiving stolen property, common intention---Reappraisal of
evidence---Benefit of doubt---Medical evidence---Nature of bullet wound---Site-
plan showed one of the accused to be standing next to the driving seat of the car at
a distance of 4 feet---Fire-shot from such short distance was likely to cause
blackening but the medical evidence did not support this, raising suspicion that the
events may have unfolded differently than as reported---Convictions and sentences
of accused persons were set aside and they were acquitted of the charge by
extending the benefit of doubt to them---Appeals were allowed accordingly.

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(c) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 392, 411 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
robbery, dishonestly receiving stolen property, common intention---Reappraisal of
evidence---Benefit of doubt---Presence of deceased at the site of occurrence
doubtful---Deceased and complainant were in a car outside a godown, where the
accused persons allegedly tried to rob them and in the process shot and murdered
the deceased---In the absence of any supporting evidence, the presence of the
deceased at the site of occurrence was highly improbable considering that the
deceased was a doctor, employed with the social security department of the
Government, having no evident interest in the business of the complainant or any
convincing evidence to show that the godown, where the incident took place, fell in
the way to his residence---Convictions and sentences of accused persons were set
aside and they were acquitted of the charge by extending the benefit of doubt---
Appeals were allowed accordingly.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 392, 411 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
robbery, dishonestly receiving stolen property, common intention---Reappraisal of
evidence---Benefit of doubt---Recovery of weapon doubtful---Investigation Officer
deposed that the recovery of pistol was effected from a house whose ownership he
failed to ascertain---According to the investigating officer it was a double storied
house and recovery was effected from the ground floor where other family
members also resided--- Memorandum of recovery showed that the pistol was
recovered from an open room lying under rough clothes, therefore, it would be
unsafe to rely on such recovery for a conviction on a capital charge---Convictions
and sentences of accused persons were set aside and they were acquitted of the
charge by extending the benefit of doubt to them---Appeals were allowed
accordingly.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---
Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention---Reappraisal of evidence---Benefit of doubt---Test
identification parade, infirmities in---Description of suspects given in the FIR by
complainant or witnesses---Test identification parade conducted by the Special
Judicial Magistrate was fraught with several infirmities diminishing its probative
and evidentiary value---Brief description of the two unknown persons (later on
identified as the accused persons) in the First Information Report (FIR) mentioned
their height, bodily size and colour of the skin---Test identification proceedings
were silent regarding the description of the unknown accused given by the
complainant in the report---Test identification could only commence, once suspects
matching the description in the crime report or in the statements of the witnesses
under S. 161, Cr.P.C. had been arrested---Matching the description in the FIR was
the starting point towards identification of the unknown accused, therefore, it was
uncertain as to how the accused persons in the present case were hurled and lined-
up for the identification parade without the Magistrate first matching the
description given by the complainant---Selection of the suspects, without any

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correlation with description of the accused in the FIR, raised doubts and made the
identification proceedings unsafe and doubtful rendering the identification evidence
inconsequential---Convictions and sentences of accused persons were set aside and
they were acquitted of the charge by extending the benefit of doubt to them---
Appeals were allowed accordingly.
State/Government of Sindh v. Sobharo 1993 SCMR 585; Muhammad Afzal alias
Abdullah v. State 2009 SCMR 436; Sabir Ali alias Foji v. State 2011 SCMR 563
and Muhammad Abdul Hafeez v. State of A.P AIR 1983 SC 367 ref.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---
Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention---Reappraisal of evidence---Benefit of doubt---Joint
identification parade---Suspects jointly seated in the line-up---Idea of identification
parade or lineup was to stand or seat the suspect in a group of persons (dummies or
fillers) that closely resembled the characteristics of the suspect, in order to test the
recognition, memory, perception and observation of the witness and thus verify the
testimony of the witness---Placing two or more suspects jointly in an identification
parade (or joint parade), tarnished the homogeneity, sameness and identicalness of
the members of the parade and defeated the very purpose of having a test
identification parade---Joint parade passed for suggestive and indicative
identification, compromising the reliability of the witness and opening doors to
misidentification, rendering test identification unsafe and untrustworthy---Both the
accused persons in the present case were jointly seated in the lineup during test
identification parade---Convictions and sentences of accused persons were set aside
and they were acquitted of the charge by extending the benefit of doubt to them---
Appeals were allowed accordingly.
In the matter of Kanwar Anwaar Ali PLD 2019 SC 488 ref.
(g) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---
Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention---Reappraisal of evidence---Benefit of doubt---Test
identification parade---Absence of role assigned to suspects by the witness or
complainant in an identification parade---In the present case, no role was assigned
to the suspects by the witnesses, especially when the First Information Report (FIR)
clearly described two different roles to the accused persons; one that of an
assailant, while the other of a driver of a motorcycle who drove the assailant away--
-Where a witness failed to give the description of the part played by the suspect in
the crime, the credibility of the witness stood questioned as he failed to complete
the picture of the crime scene, thus inviting caution and circumspection in assessing
the evidentiary value of the identification evidence---Little reliance was placed on
such identification evidence by the (Supreme) Court---Even in the subsequent
identification by the complainant in court, which had little evidentiary value, the
complainant failed to point an accusing finger at the accused persons to say who
did what, therefore the parts played by the accused persons in the crime remained a

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mystery---Convictions and sentences of accused persons were set aside and they
were acquitted of the charge by extending the benefit of doubt to them---Appeals
were allowed accordingly.
In the matter of Kanwar Anwaar Ali PLD 2019 SC 488 ref.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---
Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention---Reappraisal of evidence--- Benefit of doubt--- Test
identification parade---"Impermissible suggestiveness" by the police---Duty of
police to guard identity of suspect till test identification proceedings---According to
the complainant the accused persons were his employees at a godown, where the
murder took place, and the Investigation Officer admitted in his cross-examination
that he took the accused persons to the godown after they were arrested and the
employees at the godown confirmed that both of them worked as employees at the
godown of the complainant---Police was to guard the identity of the suspects from
the witness till test identification parade took place---Visiting the godown of the
complainant with the suspects unravelled the identity of the suspects, tarnishing the
secrecy required, which was referred to as "impermissible suggestiveness" at the
hands of the police---Probability of the witnesses knowing the identity of the
accused persons prior to the identification parade could not be ruled out in such
circumstances---Convictions and sentences of accused persons were set aside and
they were acquitted of the charge by extending the benefit of doubt to them---
Appeals were allowed accordingly.
(i) Qanun-e-Shahadat (10 of 1984)---
----Art. 22---Test identification parade---Capacity and ability of the eye-witness to
identify the accused---"Estimator variables" negatively affecting the memory of a
witness---Capacity and ability of the eye-witness should be assessed independently
as a sequel or step two to the test identification proceedings---Such assessment also
formed part of the identification evidence along with the test identification
proceedings---After the test identification parade, the court must verify the
credibility of the eye-witness by assessing the evidence on the basis of the factors
or "estimator variables"---"Estimator variables" were factors related to the witness,
like distance, lighting, or stress, over which the legal system had no control---
Identification of an accused, therefore, became 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"---Non-exhaustive list of "estimator variables" provided.
Following is the non-exhaustive list of "estimator variables" that negatively
affected the memory process of a witness:
i. Stress: Even under the best viewing conditions, high levels of stress could
diminish an eye-witness' ability to recall and make an accurate
identification. While moderate levels of stress improved cognitive

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processing and might improve accuracy, an eyewitness under high stress

was less likely to make a reliable identification of the perpetrator.
ii. Weapon focus: When a visible weapon was used during a crime, it could
distract a witness and draw his or her attention away from the culprit.
Weapon focus could thus impair a witness' ability to make a reliable
identification and describe what the culprit looked like if the crime was of
short duration.
iii. Duration: The amount of time an eyewitness had to observe an event may
affect the reliability of an identification. There was no minimum time
required to make an accurate identification, however, a brief or fleeting
contact was less likely to produce an accurate identification than a more
prolonged exposure.
iv. Distance and lighting: A person was easier to recognize when close by, and
that clarity decreased with distance. Poor lighting made it harder to see well.
Thus, greater distance between a witness and a perpetrator and poor lighting
conditions could diminish the reliability of an identification.
v. Witness characteristics: Characteristics like a witness' age and level of
intoxication could affect the reliability of an identification. Children
between the ages of nine and thirteen who viewed target-absent lineups were
more likely to make incorrect identifications than adults.
vi. Characteristics of perpetrator: Disguises and changes in facial features
altered between the time of the event and the identification procedure
affected the accuracy of an identification.
vii. Memory decay: Memories faded with time and memory decay was
irreversible; memories never improved. As a result, delays between the
commission of a crime and the time an identification was made could affect
reliability.

PLD 1981 SC 142; Kenneth A. Deffenbacher et al., A Meta-Analytic Review of

the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687,
699 (2004). Charles A. Morgan et al., Accuracy of Eyewitness Memory for Persons
Encountered During Exposure to Highly Intense Stress, 27 Int'l J.L. & Psychiatry
265 (2004); Nancy M. Steblay, A Meta-Analytic Review of the Weapon Focus
Effect, 16 Law & Hum. Behav. 413, 415-17 (1992). Anne Maass & Gunther
Koehnken, Eyewitness Identification: Simulating the "Weapon Effect", 13 Law &
Hum. Behav. 397, 401-02 (1989). The Handbook of Eyewitness Psychology:
Memory for People, supra, at 339, 353-54; Colin G. Tredoux et al., Eyewitness
Identification, in 1 Encyclopedia of Applied Psychology 875, 877 (Charles
Spielberger ed., 2004). Elizabeth F. Loftus et al., Time Went by So Slowly:
Overestimation of Event Duration by Males and Females, 1 Applied Cognitive
Psychol. 3, 10 (1987); R.C.L. Lindsay et al., How Variations in Distance Affect
Eyewitness Reports and Identification Accuracy, 32 Law & Hum. Behav. 526
(2008); Jennifer E. Dysart et al., The Intoxicated Witness: Effects of Alcohol on
Identification Accuracy from Showups, 87 J. Applied Psychol. 170, 174 (2002).

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Joanna D. Pozzulo & R.C.L. Lindsay, Identification Accuracy of Children v.

Adults: A Meta-Analysis, 22 Law & Hum. Behav. 549, 563, 565 (1998). Jennifer E.
Dysart & R.C.L. Lindsay, Show-up Identifications: Suggestive Technique or
Reliable Method? [Link], The Handbook of Eyewitness Psychology: Memory for
People 137, 147 (2007). James C. Bartlett & Amina Memon, Eye-witness Memory
in Young and Older Adults [Link] The Handbook of Eye-witness Psychology:
Memory for People, supra, at 309, 317-19; Brian L. Cutler et al., Improving the
Reliability of Eyewitness Identification: Putting Context into Context, 72 J.
Applied Psychol. 629, 635 (1987). K.E. Patterson & A.D. Baddeley, When Face
Recognition Fails, 3 J. Experimental Psychol.: Hum. Learning & Memory 406, 410,
414 (1977); Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face:
Estimating the Strength of an Eyewitness's Memory Representation, 14 J.
Experimental Psychol: Applied 139, 142 (2008) and State v. Henderson, 208 N.J.
208 (2011), State v. Lawson, 291 P.3d 673, 695 (Or. 2012) ref.
(j) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 392, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---
Qatl-i-amd, attempt to commit qatl-i-amd, robbery, dishonestly receiving stolen
property, common intention---Reappraisal of evidence---Benefit of doubt---Test
identification parade---"Estimator variables" negatively affecting the memory
process of the identifying witness---Site-plan showed that the accused persons were
at a distance of 15 to 30 feet from the complainant in the empty space of the
godowns abutting a road with no light---Source of light in the empty area behind
the godowns (place of occurrence) had not been secured as evidence during the
investigation---Witness was fired at first and then the deceased was shot dead---
Duration of the event had not been specified in the crime report---In such
background, it could not be said with certainty that the visual recognition of the
accused persons by the complainant on the fateful night was unhindered and
unhampered especially when he was fired at first and allegedly saw the occurrence
under stress of a threat---Based on such "estimator variables," possibility of
misidentification could not be ruled out, thereby making it unsafe to place reliance
on the identification evidence---Convictions and sentences of accused persons were
set aside and they were acquitted of the charge by extending the benefit of doubt to
them---Appeals were allowed accordingly.
Raja Tariq Nadeem, Advocate High Court with permission of the Court for
Appellants (in Cr. A. 306-L of 2012).
Malik Abdul Haq, Advocate Supreme Court for Appellants (in Cr. As. 307-L and
308-L of 2012).
Raja Tariq Nadeem, Advocate High Court with permission of the Court for the
Complainant (in Cr. As. 307-L and 308-L of 2012).
Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State (in all
cases).
Date of hearing: 20th February, 2019.
JUDGMENT

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SYED MANSOOR ALI SHAH, J.---Dr. Tofeeq Ahmed was robbed and shot
dead in the driving seat of his car at 8:30 p.m. on the fateful night of 31st August,
2006. According to the story of the prosecution, the complainant (PW-8) along with
his brother (the deceased) came out of their office-cum-godown, carrying cash in a
shopping bag. As the deceased sat in the driving seat of his car while the
complainant was still on his way to the car, they were taken by surprise by two
unknown persons (later on identified as the appellants). One of them threatened the
deceased to hand over the cash to him, as the complainant tried to resist, one of the
appellants fired at him but missed and then ended up killing Dr. Tofeeq Ahmed, in
the driving seat of his car. The assailant was driven away by his partner, who all
this while remained watchfully seated on his motorcycle. In this background case
FIR No. 935 was registered against two unknown persons, at Police Station North
Cantonment, Lahore under sections 392 and 203, P.P.C. on 30.8.2006. In the
investigation that ensued, the appellants were arrested and after verifying their
identity in an identification parade, were sent up for trial. They were convicted and
sentenced by the trial Court for multiple offences under sections 302(b), 392, 324
and 411 read with section 34, P.P.C. including death under section 302(b), P.P.C.
along with compensation and imprisonment for various terms under sections 392,
324 and 411, P.P.C. while extending them the benefit of section 382-B, Cr.P.C.
Upon appeal the convictions and sentences of the appellants were maintained to the
extent that the sentence of death in the case of Abdur Rashid (appellant) was
converted into imprisonment for life. Hence, these appeals with the leave of the
Court granted on 6.12.2012.
2. Examining the record with the assistance of the learned counsel for the parties
we observe that the case of the prosecution rests on the ocular account of two eye-
witnesses namely Mian Suhail Ahmed (Complainant/PW-8) and Sheikh Khalid
Saeed (PW-11). Testimony of PW-11 has been disbelieved and his presence at the
scene of the crime held doubtful by the High Court, which has been found by us, on
our own independent evaluation of the evidence to be convincing and correct. In
this background, we observe that the complainant drove the deceased to the
hospital in the same car in which he was shot and filed the complaint with the
police at Combined Military Hospital ("CMH") at 8:45 p.m., the same night, within
15 minutes of the occurrence. The name of the complainant does not find mention
in the Inquest Report prepared at the hospital. There is no evidence on the record to
support that the deceased was brought to CMH or death certificate was issued by
the hospital as narrated in the ocular account of PWs 8 and 11. According to the
Doctor (PW-10), who did the post-mortem examination, the dead-body of the
deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-
mortem examination took place at 12 noon after a delay of 15 hours. This delay in
the post-mortem examination, when the occurrence was promptly reported at 8:45
p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an
inference that the incident was not reported as stated by the prosecution. The
complainant must have single-handedly moved the injured deceased (see Ex-PA -
memo of blood stained clothes of the deceased) to another seat in the car, having
soiled other seats and his clothes with blood. However, there is no evidence on the
record to support this. The story as narrated by the prosecution casts a ring of
suspicion around its probability and credence.

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3. Site-plan (Ex-PL) shows one of the appellants to be standing next to the

driving seat of the car at a distance of 4 feet. A fire-shot from this distance is likely
to cause blackening but the medical evidence (Post-mortem examination reports
Ex-PM and Ex-PM/1 and the statement of PW-10) does not support this, once again
raising a suspicion that the events may have unfolded differently than as reported.
In the absence of any supporting evidence, the presence of the deceased at the site
of occurrence is highly improbable considering that the deceased was a doctor,
employed with the social security department of the Government having no evident
interest in the business of the complainant or any convincing evidence to show that
the godown fell in the way to his residence.
4. The Investigation Officer (PW-15) deposed that the recovery of pistol was
effected from a house whose ownership he failed to ascertain. According to him it
was a double storied house and recovery was effected from the ground floor where
other family members also resided. The memorandum of recovery (Ex-PG) shows
that the pistol was recovered from an open room lying under rough clothes. It
would be unsafe to rely on this recovery for a conviction on a capital charge. The
ocular account of the sole eye-witness (PW-8) does not inspire confidence in the
absence of any corroboration from the identification evidence or the recovery.
5. The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the
Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several
infirmities diminishing its probative and evidentiary value. Brief description of the
two unknown persons (later on identified as the appellants) in the first information
report mentions their height, bodily size and colour of the skin. TIP proceedings are
silent regarding the description of the unknown accused given by the complainant
in the report. TIP can only commence, once suspects matching the description in
the crime report or in the statements of the witnesses under section 161, Cr.P.C.
have been arrested. Matching the description in the first information report is the
starting point towards identification of the unknown accused. It is, therefore,
uncertain how the appellants were hurled and lined-up for the identification parade
without the Magistrate first matching the description given by the complainant.
Selection of the suspects, without any correlation with description of the accused in
the first information report, raises doubts and makes the identification proceedings
unsafe and doubtful rendering the identification evidence inconsequential. This is
just a shade apart from cases where there is no description of the accused in the
FIR, the effect being the same, casting doubts on the credibility of the test
identification parade. See State/Government of Sindh v. Sobharo (1993 SCMR
585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias
Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR
1983 SC 367).
6. Both the appellants were jointly seated in the lineup. The idea of identification
parade or lineup is to stand or seat the suspect in a group of persons (dummies or
fillers) that closely resemble the characteristics of the suspect, in order to test the
recognition, memory, perception and observation of the witness and thus verify the
testimony of the witness. Placing two or more suspects jointly in an identification
parade (or joint parade), tarnishes the homogeneity, sameness and identicalness of
the members of the parade and defeats the very purpose of having a test

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identification parade. Joint parade passes for suggestive and indicative

identification, compromising the reliability of the witness and opening doors to
misidentification, rendering TIP unsafe and untrustworthy. See: In the matter of
Kanwar Anwaar Ali (PLD 2019 SC 488) on joint identification parade.
7. No role was assigned to the suspects by the witnesses, especially when the
first information report clearly describes two different roles to the appellants; one
that of an assailant, while the other of a driver of a motorcycle who drove the
assailant away. If a witness fails to give the description of the part played by the
suspect in the crime, the credibility of the witness stands questioned as he fails to
complete the picture of the crime scene, thus inviting caution and circumspection in
assessing the evidentiary value of the identification evidence. This Court over the
years has placed little reliance on such identification evidence. Even in the
subsequent identification by the complainant in court, which has little evidentiary
value, he failed to point an accusing finger at the appellants to say who did what,
therefore the parts played by the appellants in the crime remain a mystery. See: In
the matter of Kanwar Anwaar Ali (PLD 2019 SC 488) on the absence of a role
assigned by the witness in an identification parade.
8. According to the complainant one of the appellants was his employee at the
godown and the Investigation Officer (PW-15) admits in the cross-examination that
he took the appellants to the godown after they were arrested and the employees at
the godown confirmed that both of them worked as employees at the godown of the
complainant. This is also indicated from the statements of the appellants under
section 342, Cr.P.C. Police is to guard the identity of the suspects from the witness
till TIP takes place. Visiting the godown of the complainant with the suspects
unravels the identity of the suspects, tarnishing the secrecy required. This once
again is suggestive and is also referred to as "impermissible suggestiveness1" at the
hands of the police, therefore the probability of the witnesses knowing the identity
of the appellants prior to the identification parade cannot be ruled out. Additionally,
the identification of the appellants by PW-11, whose testimony and presence at the
scene of the crime has been disbelieved further weakens the credibility of TIP and
supports the view that the witnesses knew the identity of the suspects before TIP
was held.
9. Identification evidence has so far been examined on the basis of the
guidelines of test identification parade based on executive instructions and judicial
pronouncements, which have been eloquently and elaborately discussed in
Muhammed Yaqoob2 and recently echoed In the matter of Kanwar Anwaar Ali.3
These guidelines deal with the test identification parade and have also come to be
known as "system variables," discussed later.
10. Other than the test identification parade, our courts have, now and then,
independently examined the conditions under which the eye-witness saw the
accused at the time of the crime, to assess whether the eye-witness had a good look
at the accused so as to rely on his testimony. This assessment has been based on
general principles of judiciousness and caution and is not necessarily based on
scientific research. See Alim v. State (PLD 1967 SC 307) and Majeed alias Majeedi
v. State (2019 SCMR 301). The evaluation of the witness on the basis of his ability

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to remember or recall the accused has not been mainstreamed in our criminal
jurisprudence as an essential element while appreciating the identification
evidence, i.e. identification proceedings and the rest of the evidence on the record
especially the statement and location of the witness during the occurrence. Thus,
the veracity of the testimony of the eye-witness is largely determined through the
identification parade and not independent of the identification parade by examining
the capacity and ability of the eye-witness to identify the accused.
11. In 1989, Lahore High Court in Muhammed Yaqoob4 observed that "such-like
identification proceedings are not the testimony of a witness but the testimony of
the senses of the witness. It is essentially a test of his power of observation and
perception, a test of his power to recognize strangers and a test of his memory.
These gifts of God may vary from man to man. A witness may be honest,
independent and truthful but then his memory may be faulty. And then the tricks of
memory and its conscious and unconscious activity could wrap the vision of a man.
When mistakes are possible in the recognition of a man known from before, then
the possibility of such mistakes in identifying strangers is definitely greater. And
more so when the witnesses have been the offender for the first time during the
occurrence and that also briefly and not with a calm but in an excited, confused and
terrorized state of mind." Lahore High Court raised an important point regarding
power of observation, perception, recognition and memory of an eye-witness
identifying an accused. However, this approach remained restricted to the role
played by the accused in the crime as per the requirement of the guidelines of the
test identification parade discussed above. The capacity and ability of the eye-
witness was not assessed independently as a sequel or step two to the test
identification proceedings. In 1981 Doral Patel, J. in Lal Pasand's case5 cautioned
the courts to beware of the dangers inherent in the identification of strangers and
quoting from the Criminal Law Revision Committee Report (1972) observed that
mistakes in identifications were " by far the greatest cause of actual or possible
wrong convictions ." This underlines the importance of assessing the ability and
capacity of the eye-witness, separately, to identify the accused in the circumstances
of the case. This assessment also forms part of the identification evidence along
with the test identification proceedings.
12. As time passed, international scientific surveys revealed that eye-witness
testimony has been the most popular topic in psychological research. By 1995 alone
there were over 2000 publications in psychology concerned with eye-witness
reliability.6 The single most important observation from the research on eye-
witness identification is that it is substantially less accurate than generally believed.
Overall, data from real-life cases show that just under 45 percent of witnesses pick
the suspect, about 35 percent decline to make a choice, and about 20 percent pick
innocent fillers.7 The over reliance on visual identification evidence has led to
numerous mistaken identifications of innocent suspects and consequently wrongful
convictions.8 In approximately 75 % of DNA exonerations in the United States,
mistaken identification was the principal cause of wrongful conviction.9
Furthermore, in 80 to 90 per cent of all DNA exonerations at least one eye-witness
made a mistaken identification.10 A wrongful conviction results in two injustices.

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The first tragedy is to the innocent person. The second is to the victim of the
offence and to society, because the real offender is not brought to justice.11
Wrongful convictions undermine the credibility of the legal system. Whenever
witnesses are mistaken, it is rarely because they lie or misrepresent facts, but
mostly because they misidentify people.
13. In the late 1960s, the courts around the world12, began to set the standard for
reviewing eyewitness identification evidence.13 Reliability and credibility of the
witness was termed as the linchpin in determining the admissibility of identification
testimony.14 US Supreme Court in the case of Manson v Brathwaite15, UK Court of
Appeal (Criminal Division) in Regina v. Turnbull and Another,16 New Jersey
Supreme Court in State v Madison17 and Oregon Supreme Court in State v.
Classen18 settled the following factors for assessing the reliability of the witness:
(1) the opportunity of the witness to view the suspect at the time of the crime;
(2) the witness's degree of attention;
(3) the accuracy of the witness's prior description of the suspect;
(4) the level of certainty demonstrated at the confrontation (seeing the accused
in court); and
(5) the time between the crime and the confrontation (seeing the accused in
court).
It is interesting to note that these factors were drawn from earlier judicial rulings
and not from scientific research.19 The scientific research refutes the notion that
memory is like a video recording, and that a witness needs only to replay the tape
to remember what happened. Human memory is far more complex. The memory is
a constructive, dynamic, and selective process. The process of remembering
consists of three stages: acquisition-"the perception of the original event";
retention-"the period of time that passes between the event and the eventual
recollection of a particular piece of information"; and retrieval-the "stage during
which a person recalls stored information".20 The process of memory retention and
retrieval may be affected by a number of factors. The scientific literature divides
those variables into two categories: system and estimator variables.21 System
variables are factors like lineup procedures which are within the control of the
criminal justice system and in our jurisprudence are referred to as the Test
Identification Parade. Whereas Estimator variables are factors related to the witness
- like distance, lighting, or stress - over which the legal system has no control.22
Our courts have marginally attended to this aspect of witness reliability before
placing reliance on the identification evidence (see above). The scientific
research23 establishes that the following non-exhaustive list of "estimator
variables" negatively affect the memory process:-
i. Stress: Even under the best viewing conditions, high levels of stress can
diminish an eye-witness' ability to recall and make an accurate

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identification. It may be noted "while moderate levels of stress improve

cognitive processing and might improve accuracy, an eye-witness under
high stress is less likely to make a reliable identification of the
perpetrator."24
ii. Weapon Focus: When a visible weapon is used during a crime, it can distract
a witness and draw his or her attention away from the culprit. "Weapon
focus" can thus impair a witness' ability to make a reliable identification and
describe what the culprit looks like if the crime is of short duration.25
iii. Duration: The amount of time an eye-witness has to observe an event may
affect the reliability of an identification. There is no minimum time required
to make an accurate identification, however, a brief or fleeting contact is
less likely to produce an accurate identification than a more prolonged
exposure."26
iv. Distance and Lighting: A person is easier to recognize when close by, and that
clarity decreases with distance. We also know that poor lighting makes it
harder to see well. Thus, greater distance between a witness and a
perpetrator and poor lighting conditions can diminish the reliability of an
identification.27
v. Witness Characteristics: Characteristics like a witness' age and level of
intoxication can affect the reliability of an identification. Children between
the ages of nine and thirteen who view target-absent lineups are more likely
to make incorrect identifications than adults.28
vi. Characteristics of Perpetrator: Disguises and changes in facial features
altered between the time of the event and the identification procedure affects
the accuracy of an identification.29
vii. Memory Decay: Memories fade with time and memory decay "is
irreversible"; memories never improve. As a result, delays between the
commission of a crime and the time an identification is made can affect
reliability.30
The scientific research referred to above has not only appeared in the peer reviewed
journals but also has been considered "credible" by various courts in different
jurisdictions.31 New Jersey Supreme Court in State v. Henderson32 observed that
"virtually all of the scientific evidence" that had emerged in recent decades "reveals
that an array of variables can affect and dilute memory and lead to
misidentifications." Also see State v. Lawson33.
14. The laws of evidence maintain that in order for the court to take judicial
notice of scientific facts they must be part of the general knowledge of men or must
be agreed upon by reputable men in a particular field of science beyond reasonable
dispute.34 For judges to determine the degree of consensus on a particular scientific
fact they may refer to any reputable and recognized reference sources.35 The House

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of Lords in Regina (Quintavalle) v. Secretary of State for Health36 held that the
laws have to be construed in the light of contemporary scientific knowledge and in
order to give effect to a plain parliamentary purpose, the statute may be held to
cover a scientific development not known when the statute was passed. This Court
can take judicial notice of the credible scientific development under Article 112,
Qanun-e-Shahadat, 1984. The question is can we shut our eyes to credible scientific
research and development, which has already been recognized and acknowledged
by the courts in various other jurisdictions. If scientific research can help and assist
the court in understanding and appreciating evidence more fully and more
meaningfully, the risk of miscarriage of justice stands minimized. Therefore, the
courts don't shy away from scientific developments but instead reach out and
embrace them. Reliance on scientific research and the factors evolved by science to
assess the reliability and credibility of the eye-witness can improve the quality of
identification evidence and as a consequence the quality of justice. Our
jurisprudence had already travelled in this direction and now credible scientific
research by providing us additional factors or "estimator variables" (which are not
exhaustive) has provided additional factors to certify the credibility and reliability
of the eye-witness and as a result the veracity and probative value of the
identification evidence.
15. After the test identification parade, the court must verify the credibility of
the eye-witness by assessing the evidence on the basis of the factors or estimator
variables discussed above. Identification of an accused, therefore, becomes a two-
step process. First, the suspects undergo a test identification parade and second, the
credibility of the eye-witness is assessed by weighing the evidence in the light of
the estimator variables.
16. Applying the "estimator variables" to the instant case we see that the site-
plan shows that the appellants were at a distance of 15 to 30 feet from the
complainant in the empty space of the godowns abutting a road with no light. The
source of light in the empty area behind the godowns has not been secured as
evidence during the investigation. The witness was fired at first and then the
deceased was shot dead, we notice that factors like weapon focus and distance and
lighting are visible in this case. The duration of the event has not been specified in
the crime report. In this background, it cannot be said with certainty that the visual
recognition of the appellants by the complainant on the fateful night was
unhindered and unhampered especially when he was fired at first and allegedly saw
the occurrence under stress of a threat. Based on the above "estimator variables,"
possibility of misidentification cannot be ruled out, thereby making it unsafe to
place reliance on the identification evidence.
17. For the above reasons, appellants stand acquitted of the charge by extending
them benefit of the doubt. These are the reasons for our short order dated 20.2.2019
which is reproduced hereunder for convenience and completion of record:
"For reasons to be recorded later Criminal Appeals Nos. 307-L of 2012 and 308-
L of 2012 are allowed, the convictions and sentences of Abdul Rashid and
Rashid Aziz Rana appellants are set aside and they are acquitted of the
charge by extending the benefit of doubt to them. They shall be released

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from the jail forthwith if not required to be detained in connection with any
other case. Criminal Appeal No. 306-L of 2012 seeking enhancement of the
sentence of Abdul Rashid respondent is dismissed."
MWA/S-15/SC Appeals allowed.

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