Memorandum of Test Identification Parade (TIP): Omissions by the Magistrates and Ways to Make it Comprehensive

Mudassir Maqsood^1*, and Sana Younas

¹Lahore High Court, Lahore, Pakistan

²Government College University, Faisalabad, Pakistan

*Corresponding Author: [email protected]

Abstract

This study aims to spotlight the imperfections and their causes in the preparation of the memorandum (memo) of Test Identification Parade (TIP) by the magistrates. It also aims to explicate that TIP can only be treated as corroboratory evidence, if such is strictly in accordance with the relevant laws elaborated by the Supreme Court of Pakistan (SC). This study further provides a comprehensive set of guidelines and recommendations to make the process and memo of TIP all-inclusive. Analytical legal research technique was used in this research. The data was secondary and qualitative. Data was collected from the official website of Pakistan Law Site and from the websites of the constitutional courts of Pakistan. Facts and circumstances of each and every case and relevant enactments, rules, and notifications were also investigated. An analysis of 23 reported cases involving TIP from 2017 to 2023 concluded that in more than 65% of cases, the magistrates did not make good as required by the law. The approval of SC was granted in only about 35% of cases based on the availability of undeniable evidence. In Pakistan, no enactment provides the procedure of TIP, although guidance is sought from Punjab Police Rules, 1934 (PPR, 1934), Rules and Orders of Lahore High Court, Lahore 1996 (R&O), Circulars of the Government of Punjab, and a number of case laws set by the SC. The conduct of TIP by executive magistrates with no legal expertise and by judicial magistrates with no prior training or experience are the main reasons behind the faulty memos of TIP. In light of all the relevant rules, circulars, and especially the relevant case laws, a compendium of guidelines, instructions, and precautions for writing a comprehensive memo of TIP is recommended at the end.

Keyword: corroborative evidence, guidelines, investigation, memorandum, Test Identification Parade (TIP)

Introduction

Test Identification Parade (TIP) is about facts relevant to the identity of persons involved in criminal cases. This investigative device is used by investigating agencies with the help of witnesses for the identification of unknown culprits during the course of investigation (Perera, 2021). The aim of TIP is to uncover whether the suspect is or is not the real offender (Zia et al., 2021). For this purpose, suspects are lined-up with hi dummies and identified by a witness and/or victim. It is one way of identifying the suspect from a group of similar-looking persons (Rajamanickam & Kung, 2017). It is a contemplated segment of investigation and applied only when the suspect is in custody (Zohaib & Baig, 2023). TIP, by itself, is not the requirement of the law. Rather, it becomes necessary only when the offender is alien or unknown to the witnesses, who only had a momentary glimpse of the accused (Asfand Yar Khan v. the State, 2019). It is not mandatory to be conducted because it is only a corroborative piece of evidence. However, it becomes essential when witnesses claim their ability to identify the accused, if brought before them (State through Advocate General Sindh Karachi v. Farman Hussain and others, 1995). In Pakistan, there is no enacted law including the Code of Criminal Procedure, 1898 (hereinafter shall be referred to as Cr.PC) and Qanun-e-Shahadat Order (1984) (The Pakistan Code, 1984) (hereinafter shall be referred to as QSO) that provide the procedure of the conduct of TIP. It is only article 22 of QSO which talks about the relevancy of the identity of persons or things and states the concept of TIP, although it does not provide its mechanism of implementation. However, Lahore High Court (LHC) has included certain instructions passed by the Government of Punjab through Circular Letters No.6091-J-36/ 39829 (H-Judl.) dated 19-12-1936 (Circular, 1936) and 6546-J-43/83844 (H-Judl.) dated 17.12.1943 (Circular, 1943) for the conduct of TIP in Part C of Chapter 11 of volume III of R&O. In this regard another circular letter of the Punjab Government bearing No. Judl. I-(13)/61, dated 26-7-1961 (Circular, 1961) is also in the field (R & O of LHC, 1996).

In the same manner, Punjab Police Rules, 1934 also contain some instructions regarding TIP in chapter 26 of volume III (Punjab Constabulary, n.d.). The apex courts of the country have also passed a number of instructions, matured precautions, and guidelines for the fair conduct of TIP. The TIP has two objects, one of which is the satisfaction of the investigating agency about the real offender. The second is the satisfaction of the court about the premise that the accused is genuinely connected with the alleged crime and is a real offender. It was held in Lal Pasand’s case (Lal Pasand v. the State, 1981) that TIP is the testimony of the senses of the witnesses, which includes the test of their memory, power of perception and observation, and the ability to recognize strangers. Therefore, precautions taken before and during the process of TIP must be effective and designed to eliminate the possibility of unjustified conviction. For the said purpose, Supreme Court (SC) held in Asfand Yar Khan’s case that the life and liberty of the suspect depends upon the extended attention of the magistrate supervising TIP. So, the magistrate must supervise the proceedings of TIP wisely and may not act only as an observer. In Muhammad Yaqoob’s case (Muhammad Yaqoob and another v. the State, 1989), LHC discussed TIP in length and set the precautions and guidelines for conducting TIP for the first time in 1989. The said guidelines are based upon PPR, 1934, Part C of Chapter 11, volume III of R&O, instructions passed by the Government of Punjab and precedents of apex courts. These were finally approved by SC in 2019 during the above mentioned Asfand Yar Khan’s case. The conduct of TIP in accordance with such precautions and guidelines is a paramount requirement to transform the testimony of TIP into a corroborative piece of evidence. It is noteworthy to mention here that different omissions of magistrates conducting TIP have been pointed out by the apex courts of the country, which are scattered in different case laws. This work is an effort to gather all the instructions, guidelines, and precautions needed for the fair conduct of TIP.

Material and Method

This research is about the omissions and skips by the magistrates during the conduct of TIP and the preparation of a comprehensive TIP memo by them. For the said purpose, analytical legal research techniques were used. The findings are based on secondary qualitative data and the application of qualitative methodology. The data from 23 cases was collected, organized, and verified from the official website of the highest constitutional court of Pakistan and Pakistan Law site. The criterion for the selection of these cases was the role of TIP in their decision as well as the verdict of SC regarding the positive or negative role of TIP. These became the bases for the acceptance or rejection of the TIP memo, wherein relevant reasons for such purposes were discussed. The discussion was limited only to the extent of the process of TIP adopted at the time and the place of its conduct, especially when magistrates prepared the TIP memo. Data contained time specific cases reported by the Supreme Court of Pakistan for the period 2017-2023. For analysis and discussion, legislations, enactments, notifications, reported case laws of the higher courts of Pakistan involving TIP, and various published articles covering TIP were also looked into. Discussion method was applied for analysis because it fulfilled the requirement of the current research.

Following are the details of the cases included in this study.

Table 1

Details of Reported Cases Involving TIP

Results

Table 2

Analysis of Reported Case Laws Involving TIP

Discussion

Out of the 23 cases included in this research, TIP memo was found to be corroborative in just 08 cases (34.8% of total cases) which resulted in the conviction of accused person(s). Whereas, in 15 cases (65.2% of total cases), TIP was found not to be corroborative for the reasons mentioned in column 5 of Table 2. These results are reflected in Table 3.

Table 3

Ratio of Success and Failure of TIP

It is noteworthy to mention here that in 01 out of 08 successful cases, namely Muhammad Faisal Abbas case, TIP was considered as a corroborative piece of evidence just because that the case was also otherwise proved. In Muhammad Siddique case, TIP was taken as corroborative of other evidence on the basis that an artificially heavier and beyond human capacity standard of proof cannot be casted on prosecution, whereas, in Tasar Mehmood case, TIP was taken as a valid and reliable proof because the offence was proved against the co-accused of the accused booked through TIP. Considering TIP as corroborative evidence for the above reasons, and that too without going into the merits of TIP and by taking aside the principle of bounden duty of prosecution to prove the case, is not safe for the administration of criminal justice. In Muhammad Hayat case, SC held that the conduct of TIP at police station is legal because the law does not designate any specific place for the conduct of TIP. Ignoring the shortcomings in the TIP proceedings and TIP memos by Superior Courts and disregarding the established criteria for evaluation of TIP proceedings may lead to injustice. The conduct of TIP should also not be encouraged at the police station. This is because the fulfillment of all the requirements and recommendations for fair and transparent conduct of TIP is not possible in police stations. The above mentioned four cases can easily be distinguished from other successful cases which ended in the conviction of the accused persons. This is because the process and memo of TIP was not looked into as per the required criterion set by SC itself. Looking into the success cases with nuances formulates that the success rate of TIP is 50% less than the success rate shown in Table 2, that is, 17.4% of the total researched cases.

The main reason for not believing TIP as corroborative piece of evidence is the non-provision of role to the suspect in the TIP memo. Indeed, 07 out of 15 (46.67%) failing TIP memos were not believed due to the above reason. This ratio shows the miscarriage of due process of TIP by the magistrates.

It was noted in 05 out of 15 (33.34%) failing TIPs that the TIP of more than one suspect was conducted jointly, in one go, due to which such TIPs were not taken as worthy to be believed. Such flaw has been pointed out by higher courts since 1961. Despite this, magistrates conducting TIP do not bother to conduct separate TIP of each accused.

Non-mentioning the features of suspect by the magistrates in the TIP memo because of non-disclosure of such by the identifier or due to some other reason was noted by SC in 04 out of 15 failing cases, which comprise 26.67% of total cases under study. This is despite the fact that the magistrate conducting TIP must ask the identifier about the features of the accused and then reduce it into writing in the TIP memo.

In 20% of failing cases (03 out of 15), delayed conduct of TIP was reported as one of the reasons for not considering the TIP as a valid corroboratory piece of evidence. To curb the issue of delay in the conduct of TIP, LHC set a mechanism and issued a directive in Muhammad Ramzan’s case. The court directed the magistrates committing the accused to jail for TIP to send a copy of order to the Sessions Judge. Then, immediate deputation of the magistrate by Sessions Judge to conduct TIP after receiving a copy of such order is imperative. Magistrate would conduct the TIP of the accused within 48 hours of the assignment of such task.

In 20% of failing cases, that is, 03 out of 15, features, physiques, ages, and dresses of the suspect and dummies were not matched with the features, physiques, ages and dresses of the suspect, which suspect was holding at the time of incident, as per FIR. In the same manner, descriptive and matching particulars/features of dummies were not mentioned in the TIP memo in 03 out of 15 (20%) failing cases. In 02 out of 15 (13.3%) failing cases, features, physiques, ages, and dresses of dummies were different from the suspect. These are 07 out of total 15 failing cases. It reflects that the magistrates who conducted TIP failed to match the features of suspect and dummies with the suspect they were holding at the time of occurrence. Furthermore, they also failed to mention the detailed features of dummies in the TIP memo. Magistrates also failed to arrange the dummies with the same features as of suspect, despite the fact that this is fatal for TIP proceedings.

This study also revealed the 13.3% ratio of failing cases due to the failure of police to guard the identity of the suspects from the witness(es) before the conduct of TIP. The results also reflect that the rare practice of the identification of the accused before trial court and the conduct of TIP in police station is also not approved by the SC. Illegal confinement of suspect before the conduct of TIP also makes the TIP unreliable. The acquaintance of witness(es) with the suspect before the conduct of TIP and the non-attendance of the objections of the suspect by the magistrate are also fatal for the prosecution case. It is noteworthy to mention here that the four above mentioned reasons for not considering the TIP were reported once each (6.7%) out of 15 failing cases.

Table 4

Ratio of Major Reasons for the Failure of TIP

Recommendations

A comprehensive TIP memo can only be prepared by implementing the relevant rules of the Punjab Police Rules, 1934 and R&O of LHC, 1996 V.III containing circulars of 1936, 1943, 1961, and instructions, guidelines, and precautions developed through different case laws by the apex court of country in their true letter and spirit. For such purpose, the following comprise the distilled information, data, and relevant facts which must be reflected in a valid TIP memo by the officer supervising TIP.

1. TIP was held under the supervision of the magistrate (R&O of LHC, 1996; Punjab Constabulary, d.).
2. Date and place (jail concerned) of TIP (Asfand Yar Khan v. the State, 2019; Punjab Constabulary, d.).
3. FIR number, date of occurrence, section of law, and the name of the police station (Ajwad, 2021).
4. Name, parentage, addresses, and occupation of the suspect (Punjab Constabulary, d.).
5. Names, parentage, addresses, and occupations of the witnesses (Punjab Constabulary, d.).
6. Preparation of the list of dummies including the suspect at the parade along with their parentage, occupations, and addresses (Asfand Yar Khan v. the State, 2019; Muhammad Yaqoob and another v. the State, 1989; R & O of LHC, 1996).
7. Suspect was allowed to stand at any number in line with dummies (Ajwad, 2021).
8. The dummies were similarly dressed and of the same religion and social status as of the suspect (The State through P.G. Sindh and others Ahmed Omar Sheikh and others, 2021).
9. Dummies had similar faces, colour, height, structure, and built as that of the suspect (The State through P.G. Sindh and others Ahmed Omar Sheikh and others, 2021).
10. Features of the suspect corresponded with the features of the accused mentioned in the FIR (Mian Sohail Ahmed and others v. the State and others, 2019).
11. Ratio of dummies and the suspect was 9/10 to 1 (Muhammad Yaqoob and another v. the State, 1989) or 8/9 to 1 (Punjab Constabulary, d.).
12. Whether the suspect was handcuffed or in fetters; and if so, whether or not the dummies were handcuffed or in fetters and also whether they were or not jail inmates (R & O of LHC, 1996III, C.11.C.4b).
13. Suspect was not allowed to "make up". Participants of the parade were dressed as the accused was dressed at the time of occurrence (Punjab Constabulary, d.; R & O of LHC, 1996).
14. Total period of custody of the suspect with the police (from the time and date of the arrest to the time and date of their admission in jail for TIP) (The State through P.G. Sindh and others Ahmed Omar Sheikh and others, 2021; Asfand Yar Khan v. the State, 2019; Muhammad Yaqoob and another v. the State, 1989).
15. Intervening period of the arrest of the suspect and conduct of TIP (Asfand Yar Khan v. the State, 2019). It must not be more than 48 hours (Muhammad Ramzan v. the State and others, 2023).
16. Intervening period of the time of occurrence and the conduct of TIP (Asfand Yar Khan v. the State, 2019).
17. Suspect was subjected to TIP immediately after arrest (The State through P.G. Sindh and others Ahmed Omar Sheikh and others, 2021; Muhammad Yaqoob and another v. the State, 1989; Punjab Constabulary, n.d.).
18. Every suspect was subjected to separate TIP proceedings (Asfand Yar Khan v. the State, 2019) (Lal Pasand v. the State, 1981).
19. Attendance of two independent and reputable witnesses of TIP proceedings was ensured and such witnesses had no interest in the case (Ajwad, 2021).
20. Identifying witnesses were not allowed the opportunity to see the accused before the conduct of TIP (Mian Sohail Ahmed and others v. the State and others, 2019; Punjab Constabulary, d.).
21. Identifying witnesses had no acquaintance with the suspect (Abdul Haq and others v. the State, 2020116).
22. Before TIP, witnesses were kept separate from each other, till the call to identify the suspect was made (Punjab Constabulary, d.).
23. The witnesses were kept at such distance and place from where they could not watch the proceedings of TIP (Asfand Yar Khan v. the State, 2019).
24. Jail staff witnessing the proceedings of TIP was not able to communicate with the witnesses (Asfand Yar Khan v. the State, 2019).
25. After participation in TIP, identifying witnesses were stationed at such place from where neither they could watch the proceedings of TIP nor can communicate with the remaining witnesses (Asfand Yar Khan v. the State, 2019; R & O of LHC, 1996).
26. Rest of the witnesses were kept at such place from where they were unable to see and hear the proceedings of TIP. No opportunity was provided to them for communication to pass between witnesses who had been called up and those remained to be called (R & O of LHC, 1996).
27. In case of the correct identification of the accused, the magistrate asked the witness that whether the identified person was their friend, foe, or culprit of an offence. Such fact including the reply of the witness is incorporated in the TIP memo (Asfand Yar Khan v. the State, 2019; Muhammad Yaqoob and another v. the State, 1989; R & O of LHC, 1996).
28. On the correct identification of the accused by the identifier, the magistrate asked the identifier to state the circumstances in which they saw the suspect and the role of the accused. If stated by the identifier, such circumstances and the role of the accused were incorporated in the TIP memo (Syed Anwar Ali Shah and another v. Irfan Ali and others, 2019; Asfand Yar Khan v. the State, 2019; R & O of LHC, 1996).
29. In case of wrong identification of the accused, the magistrate recorded so in the TIP memo which is coupled with the number of persons wrongly picked by the witness (Asfand Yar Khan v. the State, 2019; R & O of LHC, 1996; Muhammad Yaqoob and another v. the State, 1989).
30. All the identified persons, whether right or wrong, are mentioned in the TIP memo (R & O of LHC, 1996).
31. If the witnesses stated that they could not identify the accused, a note was recorded to that effect in the TIP memo (R & O of LHC, 1996).
32. Attachment of a devoted, independent, and reliable person other than the police officials for the prevention of collusion of police with witnesses and among the witnesses (Punjab Constabulary, d.).
33. After arrangements for the conduct of TIP, no investigating officers or their assistants were allowed to access the witnesses and the suspect (Punjab Constabulary, d.).
34. Every witness was provided with a separate opportunity to attempt the identification of the accused (Punjab Constabulary, d.).
35. Fair chance was given to identifying witnesses and no condition was imposed to make it impossible for them to make an honest identification (Punjab Constabulary, d.).
36. If a witness felt insecurity due to the fear of revenge by the suspect or for any other adequate reasons, then the standing of the witness was arranged behind a screen or otherwise, so that the witness could see the accused clearly without being seen by the suspect (Punjab Constabulary, d.).
37. When the witnesses did see the accused last (R & O of LHC, 1996).
38. The magistrate and the witnesses signed the TIP memo and certified that the test was carried out correctly and that no collusion between the police or witnesses or among the witnesses was possible (Punjab Constabulary, d.).
39. Recording of every objection raised by the suspect at any stage, that is, before, during, and after TIP (Asfand Yar Khan v. the State, 2019; Muhammad Yaqoob and another v. the State, 1989; R & O of LHC, 1996).
40. Recording of the statements of identifying witnesses at any stage, that is, before, during, and after TIP (Asfand Yar Khan v. the State, 2019; Muhammad Yaqoob and another v. the State, 1989; R & O of LHC, 1996).
41. Decision of objections by the magistrate, if from his personal knowledge he was able to decide the objection beyond doubt (Asfand Yar Khan v. the State, 2019; R & O of LHC, 1996).
42. All the precautionary measures taken by the magistrate for fair conduct of TIP were recorded (Muhammad Yaqoob and another v. the State, 1989).
43. The results of the TIP were recorded in Form 26.32(1)(e) (Punjab Constabulary, d.) (See Appendix A).
44. A certificate is given at the bottom of the TIP memo in the form prescribed by Chapter II-C of Vol-III of the R&O of LHC (See Appendix B; Asfand Yar Khan v. the State, 2019; Muhammad Yaqoob and another v. the State, 1989; R & O of LHC, 1996).

It is noteworthy to mention here that the above mentioned requirements and precautions are mandatory and are demanded by the courts to show some respect to the evidence adduced in the shape of TIP memo. Furthermore, the above listed measures are not exhaustive; however, they are required to be adopted in the process of TIP. For proper respect of the TIP memo, administrations of all constitutional courts have to take steps regarding the training of magistrates supervising TIP through federal and provincial judicial academies. In the same manner, the training of investigative officers is also sin qua non for just and fair conduct of TIP.

Conclusion

The need to conduct TIP starts from the time of reporting of crime to police, when such report reflects that the offender was unknown to informer and witnesses. It is necessary that such crime report must mention the features, physique, age, colour, and dress of the accused. At the time of committing the accused to jail for TIP, the magistrate must ensure that the features of suspect match with the features of the accused mentioned in crime report. Thereafter, guidelines passed by the SC in light of enabling rules, circulars, and instructions must be applied by the officers supervising TIP. However, lack of training coupled with little knowledge of guidelines/instructions, conduct of TIP by executive magistrates having no legal knowledge of the procedures of TIP, and non-professionalism of investigating officers causes imperfections in the process of TIP, as well as the preparation of the TIP memo. It has been established that there are many problems, issues, and hurdles to conduct fair and transparent TIP, which can only be curbed by adhering to the settled principles of TIP. Most TIPs fail due to non-adhering to relevant guidelines, rules, and instructions. TIP should not be taken as corroboratory evidence until conducted strictly in accordance with the recommendations compiled in this study. The implementation of recommendations in true letter and spirit by the magistrates conducting TIP would not only enhance the success ratio of TIP but would also make the process of TIP more fair and transparent.

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Appendix A

FORM No. 26.32(1)(e)

POLICE DEPARTMENT __________ DISTRICT­­­­­­______________

Identification of suspects

Note:- Whenever it is necessary to submit any person suspected of having been concerned in any offence for identification, particular care should be taken, pending the arrival of the identifying witnesses to keep the suspect in some place where they cannot have access to him. On their arrival the suspect should be placed with 8 to 9 men similarly dressed, and of the same religion and status, and the identification carried out whenever possible in the presence of a Magistrate or independent witnesses who should be asked to satisfy themselves that the identification has been conducted under conditions precluding the possibility of collusion. Care must be taken that the identification by each witness is done out of sight and hearing of the other identifying witnesses.

Appendix B

Form of Certificate

Identification Parade

The State Versus ______(F.I.R. No. of 19__ Police Station -----------) Parade held on the---------------------19___ in the-----------------jail by--------------- Magistrate---------------Class----------------district for the identification of-----------------on the application of-------------------.

Names of the witness who are expected to identify the prisoner, with their particulars:-

1. _______________________________________________________________________
2. _______________________________________________________________________
3. _______________________________________________________________________

Proceedings of the Magistrate

Certified that the above is a true and correct record of my proceedings

(Seal) Sd/- (Magistrate) Class.