Law: Privilege- Evidence Act (1 of 1872)

Section: 9

Evidence Act (1 of 1872), S. 9-Identification test-Enquiry Magistrate refusing prayer to conduct identification test of accused on sole ground that possibility of prosecution witnesses having already seen accused could not be excluded Dismissal of application, held, amounts to denial of accused's legitimate right and Court will be perfectly justified in raising presumption adverse to prosecution in circumstance. It is well-settled that an accused person has to be given fullest opportunity to defend himself in, accordance with law. Although from the factual position the possibility of the witnesses having already seen the accused could not be excluded, yet the application by the accused in the instant case could not be thrown out on that ground. It might have been possibly motivated by one of the two considerations. Firstly, the accused-petitioner might still be genuinely optimistic that the witnesses might not be able to identify ,him and, as such, he may be prepared to take a chance. Alter natively, he might have been able to win over the witnesses and the application might have been moved collusively. Be that as it may, however, the right of an accused person to insist on an identification test which in most cases would amount to throwing a challenge to the prosecution can not be denied. In fact, there is also another aspect of the matter and that is that in case the pro secution fails to accept such a challenge, the Court will be perfectly justified in raising a presumption adverse to it. While, therefore, on the one hand the dismissal of the application filed by the accused amounts to denial of his legitimate right, it is also likely to cause prejudice to the case of the prosecution on the other. Anwar Singh v, Emperor A I R 1943 Lab, 303 and Siraj Din v. Kala and another P L, D 1964 S C 26 rel.   ORDER OF REFERENCE The facts of the case are as follows :- On 5th October 1968, Safdar Hussain Constable No. 164 was posted at traffic duty near Bank Square, Rawalpindi. At about 6-30 p. m. Khurshid Ahmad and Khalid Pervez accused came in a tonga which was coming from the side of the Committee Chowk. When the tonga driver turned the tonga towards Habib…