HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 271 of 2016

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Malik Gaddi

Date of Hearing : 01.11.2017.

Date of Judgment : 06.11.2017.

Appellant : Allah Mohammad through Mr. Nadeem Ahmed Azar Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan Additional Prosecutor General Sindh.

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Allah Mohammad appellant was tried by learned Judge, Anti-Terrorism Court-IX, Karachi in Special Case No.43(III)/2013 (FIR No.172/2013 under Sections 386/506-B/34 PPC read with Section 7 Anti-Terrorism Act, 1997 registered at P.S Mehmoodabad). After full-dressed trial, by judgment dated 20.10.2016, appellant Allah Mohammad was convicted under Section 7(h) of Anti-Terrorism Act, 1997 read with Section 386 PPC and sentenced to suffer R.I for 5 years and to pay fine of Rs.50,000/-, in case of default, he was ordered to suffer R.I for 6 months more. Benefit of Section 382-B Cr.P.C was also extended to accused. Co-accused Yaseen Shah was acquitted by the learned Trial Court.

2. Brief facts of the prosecution case as disclosed in the FIR are that complainant Multan Khan was running a shop of electric items at Kashmir Colony. On 31.05.2013 at 12:00 noon, complainant received a call from Cell No.0313-3933432 at his Cell No.0333-3024743. Caller disclosed that he was affiliated with Tehrik-e-Taliban and asked complainant for payment of bhatta of Rs.30,00,000/- and in case of non-payment, threat of dire consequences was issued. Complainant again received call on 06.06.2013, threat of dire consequences was again issued. Thereafter, two persons came at the shop of complainant and delivered there a chit for payment of bhatta to one Nadeem employee of complainant and it was witnessed by Mehrab who was sitting at his shop. After one month, complainant was informed that culprits who were demanding bhatta from him have been arrested by Baloch Colony Police in another case FIR No.160/2013.

3. During investigation, accused Allah Mohammad and Yaseen Shah were put into identification parade through P.W Mehrab before concerned Judicial Magistrate. P.W Mehrab identified accused Allah Mohammad. However, P.W Mehrab could not identify co-accused Yaseen Shah. After usual investigation, challan was submitted against accused Allah Mohammad and Yaseen Shah under above referred sections and co-accused Dur Mohammad was shown as absconder. Accused Dur Mohammad was declared as proclaimed offender by trial Court.

4. Learned Judge, Anti-Terrorism Court-IX, Karachi framed charge against the accused under the above referred sections at Ex.18. Accused pleaded not guilty and claimed trial.

5. At trial, learned Judge, Anti-Terrorism Court-IX, Karachi examined five prosecution witnesses. Thereafter, prosecution side was closed by learned DDPP vide statement at Ex.29.

6. Statement of accused was recorded under Section 342 Cr.P.C at Ex.30. Accused claimed false implication in the case and denied the prosecution allegations. Accused declined to give statement on oath in disproof of the prosecution allegations. No evidence has been led in defence.

7. Learned Trial Court, after hearing the learned counsel for the parties and examination of the evidence available on record, convicted and sentenced the appellant Allah Mohammad as stated above, hence this appeal is filed, whereas, co-accused Yaseen Shah has been acquitted by Trial Court.

8. The facts of these cases as well as evidence produced before the trial Court find an elaborate mention in the Judgment dated 20.10.2016, passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.

9. Mr. Nadeem Ahmed Azar learned Advocate for the appellant argued that admittedly accused were not previously known to complainant Multan Khan then as to how complainant gave names of the accused persons in his FIR. It is further argued that complainant during his cross-examination has deposed that appellants were shown to him by the police at the police station Mehmoodabad. He further argued that mashirnama of arrest and recovery has been produced before the Trial Court in which complainant has acted as mashir of arrest and recovery but in his cross-examination complainant has denied the arrest of accused in his presence. It is further argued that trial Court has disbelieved the evidence of P.W Mehrab as regards to co-accused Mohammad Yaseen. It is further argued that PW Mehrab who was chance witness he had failed to disclose the probable cause of his presence at the time when appellant enquired from him about the shop of complainant. Learned counsel further argued that learned Judicial Magistrate did not hold the identification parade in accordance with law. As such the identification of accused was not reliable. He further argued that no call data was produced before the trial Court. In support of his contentions, learned counsel relied upon the case of Hakeem and others vs. The State (2017 SCMR 1546).

10. Mr. Mohammad Iqbal Awan, learned DPG argued that appellant was identified by P.W Mehrab during the identification parade before the Judicial Magistrate. P.W Mehrab had no enmity with the appellant to involve him in this crime. Learned Additional Prosecutor General however, admitted that no call data was collected by the I.O during investigation.

11. We have carefully heard the learned counsel for the parties and scanned the evidence.

12. We have come to the conclusion that prosecution has failed to prove its’ case against the appellant Allah Mohammad for the reasons that co-accused Mohammad Yaseen has already been acquitted by the trial Court and on the same set of evidence appellant has been convicted without independent corroboration. Admittedly accused were not previously known to complainant Multan Khan, then as to how he gave names of accused in his FIR. As such evidence of the complainant did not inspire confidence and is not reliable. Complainant in his cross-examination has replied that appellant was shown to him by the police at police station Mehmoodabad. Mashirnama of arrest and recovery has been produced before the Trial court in which complainant has acted as mashir of arrest and recovery but in his cross-examination complainant has denied arrest of the accused in his presence. I.O had also failed to conduct the investigation fairly. I.O failed to examine the shopkeepers around the place of incident in order to ascertain the truth. I.O had also failed to collect call data as well as CCTV footage though incident had taken place in main market. It appears that I.O has simply completed the formalities in this case. We are unable to believe the evidence of P.W Mehrab for the reasons that evidence of PW Mehrab has already been disbelieved by the trial Court as regards to accused Mohammad Yaseen. Moreover, PW Mehrab was chance witness and he had not disclosed the probable cause of his presence at the time when appellant enquired from him about the shop of complainant. There is no independent corroboration to evidence of P.W Mehrab. We have also carefully perused the evidence of Mr. Mumtaz Ali Solangi Judicial Magistrate, who has deposed that on 17.07.2013, Inspector Muneer Ahmed produced before him accused Yaseen Shah and Allah Mohammad in Crime No. 172/2013 of PS Mehmoodabad for offences under Sections 386/506-B PPC read with Section 7 Anti-Terrorism Act, 1997 for holding identification parade through P.W Mehrab. Magistrate held the identification parade by directing both the accused to stand in the queue of dummies at their own choice. Accused Allah Mohammad stood at S.No.5 and accused Mohammad Yaseen stood at S.No.7. The prosecution had maintained that only present appellant Allah Mohammad had correctly been identified by P.W Mehrab during a test identification parade conducted and supervised by a Magistrate, but we note that the parade so conducted and held was a joint parade in which both accused had been made to stand along with many other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by the Honourable Supreme Court in the case of Gulfam and another vs. The State (2017 SCMR 1189), as follows:-

“5. The prosecution had maintained that the present appellants had correctly been identified by the above mentioned eye-witnesses during a test identification parade conducted and supervised by a Magistrate but we note that the parade so conducted and held was a joint parade in which both the present appellants had been made to stand along with many other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment and a reference in this respect may be made to the cases of 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) and Shafqat Mehmood and others v. The State (2011 SCMR 537).”

Moreover, both accused were not placed among other persons similarly dressed and of similar religion and social status as provided under Police Rules, 1934. In the case of Hakeem and others vs. The State (2017 SCMR 1546), the Honourable Supreme Court has held as under:

“The Rule 26.32(1)(d) inter alia require "the suspects shall be placed among other persons similarly dressed and of the same religion and social status, in the proportion of 8 or 9 such persons to one suspect. Each witness shall then be brought up separately to attempt his identification. Care shall be taken that the remaining witnesses are " still kept out of sight and hearing and that no opportunity is permitted for communications to pass between witnesses who have been called up and those who have not." PW-5, Imdad Ali, Assistant Mukhtiarkar, Mirpursakro, in whose presence the identification parade was conducted, has stated in his deposition that he arranged 22 dummies. He deposed "the accused persons namely Ghulam Mustafa, Bodo, Noor Mohammad, Khuda Bux, Usman, Hakim and Imdad were mixed up in the row with damies (sic) according to their choice and thereafter the complainant Wali Muhammad and PWs Jan Mohammad and Abdullah picked them up from the row." So in-fact seven accused were lined up with dummies for identification. Furthermore, during the identification parade, no specific role played in the incident was assigned to any particular accused. This Court in the case of Azhar Mehmood v. State (2017 SCMR 135) has held that in an identification parade, if the accused were identified without reference to any role played by them in the incident, the same is of no evidentiary value. A quote from the judgment of Azhar Mehmood's case is as follows:-

"We have gone through the statements made by the supervising Magistrates, i.e. PW5 and PW10 as well as the proceedings of the test identification parades and have straightaway noticed that in the said parades the present appellants had not been identified with reference to any role played by them in the incident in issue. It has consistently been held by this Court that such a test identification parade is legally laconic and is of no evidentiary value and a reference in this respect may be made to the cases of Khadim Hussain v. The State (1985 SCMR 721), Ghulam Rasul and 3 others v. The State (1988 SCMR 557), Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Siraj-ul-Haq and another v. The State (2008 SCMR 302), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Shafqat Mehmood and others v. The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563) and Muhammad Fayyaz v. The State (2012 SCMR 522)"

5. This Court in the case of Bacha Zeb v. The State (2010 SCMR 1189) after relying upon earlier decision of this Court in the case of Lal Pasand v. The State (PLD 1981 SC 142) held that it would be unreasonable to mix five accused persons with several other persons for the purposes of identification as such a larger number of persons would only confuse the identifying witnesses and the proper course is to have separate identification parades for each accused. Keeping in view the manner in which the identification parade was held, such identification parade cannot be relied upon to award the accused punishment of life imprisonment, who on account of old blood feud may also be already known to the complainant.”

For the above stated reasons, we are unable to rely upon the piece of identification and disapprove the manner in which it was conducted by the Judicial Magistrate.

13. There are several circumstances in the case as highlighted above, which create reasonable doubt in the prosecution case. It is settled principle of law for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez vs. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has held as under:-

“The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which crates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of race and concession but as a matter of right.”

14. In the view of above, we have come to the conclusion that the prosecution has failed to prove the aforesaid case against the appellant beyond any shadow of doubt. Therefore, we extend benefit of doubt to the appellant and allow Special Criminal Anti-Terrorism Appeal No. 271 of 2016. Consequently, the conviction and sentence recorded by the Trial Court vide judgment dated 20.10.2016 are set aside. Appellant Allah Mohammad is acquitted of the charges. Appellant Allah Mohammad shall be released from custody forthwith, if he is not wanted in some other custody case.

JUDGE

JUDGE