JUDGMENT SHEET.
HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.
CRIMINAL JAIL APPEAL NO.D-131 OF 2004.
Date Order with signature of Judge
PRESENT: 1. Justice Ahmed Ali M. Shaikh.
2. Justice Salman Hamid.
Appellant: Muhammad Umer alias Uris Rahoo through Mr. Dilbar Khan Leghari, Advocate.
Respondent: The State through Syed Meeral Shah, Deputy Prosecutor General, Sindh at Hyderabad.
Date of hearing: 26.08.2010.
Date of judgment: 26.08.2010.
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Ahmed Ali M. Shaikh J: Through this appeal, the appellant has impugned the judgment dated 12.7.2004 passed by Judge Anti Terrorism Court Hyderabad and Mirpurkhas Division at Hyderabad in Special Case No.67 of 2002 by which he convicted the appellant and sentenced him to suffer imprisonment for life with fine of Rs.200,000/-. In case of non-payment of fine, he was further awarded R.I for one year. However, the benefit of Section 382-B Cr.P.C was extended to the appellant.
The facts of the prosecution case in nutshell are that on 10.11.2002 at 1740 hours Wali Muhammad and Muhammad Saleem were abducted, from the Pakka link road near Bagh Haji Mirza Kaka by the culprits while they were going to their village by a motorcycle. PW-Nizamuddin witnessed the above incident and informed the complainant Abdul Wahid who got registered the case under Crime No.10 of 2002 at P.S Batho Forest for offence U/s 365-A PPC.
On the same day i.e. 11.11.2010 another case under Crime No.54 of 2002 was registered at P.S Bhit Shah by SIP Abdul Sattar Solangi, SHO PS Batho Forest. The nutshell of the prosecution story is that on the same day a case was registered with regard to the abduction of Wali Muhammad and Muhammad Saleem who were abducted by un-known accused by a white coloured car. He alongwith his subordinate staff left P.S for investigation of above said offence. Later on they followed the clue of the aforesaid car from Panj Mori towards Saeedabad as such they aired wireless message to T.P.O Hala for Nakabandi as well as to inform the other SHOs. Ultimately, they reached at the Kot Umer Raho where the culprits alongwith abductees were available. Suddenly culprits started firing upon the police, the police personnel also took positions and made firing in their self defence. During firing HC Dodo, gunman of TPO Hala received the injuries at the hands of accused and later on he succumbed to injuries while culprits made their escape good by taking the advantage of darkness. Complainant party entered in the Kot where they found abductees Wali Muhammad and Muhammad Saleem, out of them Wali Muhammad was in injured condition who later on succumbed to his injuries.
After usual investigation a challan was submitted whereby appellant Muhammad Umer Raho and Manzoor Magsi were shown in custody while accused Imdad, Ghulam Qadir, Misri and Ismail were shown as absconders. During pendency of the proceedings accused Ismail alias Chachro and Misri Khaskheli were arrested but subsequently both were released by police U/s 169 Cr.P.C. NBWs were issued against the absconders, however on 2.10.2003 statement of process server namely ASI Ghulam Sarwar was recorded whereby he stated that accused Imdad Kalhoro and Ghulam Qadir were killed during the police encounter therefore, proceedings against them were abated. Ultimately, Crime No.54 of 2002 of P.S Bhit Shah was amalgamated with Crime No.10 of 2002 of P.S Batho Forest.
It is pertinent to mention here that case/crime No.54/2002 of Police Station Bhitshah was amalgamated with Crime No.10/2002 of P.S Batho Forest.
A formal charge was framed against the accused to which they pleaded not guilty and claimed their trial. To substantiate its case, prosecution examined the following P.Ws:-
PW-1 Mashir Muhammad Mubeen, he produced mashirnama of serzamin. PW-2 Nizamuddin Lakho. PW-3 Complainant Abdul Wahid Lakho. PW-4 Muhammad Saleem abductee. PW-5 Muhib Ali ASI who produced mashirnama of arrest, mashirnama of recovery of alleged car. PW-7 Dr. Asadullah Shah who produced letter written by ASI Bhit Shah regarding postmortem examination, postmortem report of HC Dodo Khan, postmortem report of Wali Muhammad and letter issued from PS Bhit State for injured Saleem. PW-8 Mashir Pirdino who produced mashirnama of arrest of accused. PW-9 SIP Ashique Ali Rajput who produced mashirnama of recovery of alleged car, letter addressed to Civil Judge and FCM regarding identification of accused and a letter addressed to I.O Bhit Shah alongwith ballistic report. PW-10 Abdul Ghafoor ASI. PW-11 Muhammad Yaqoob. PW-12 Zafar Iqbal TPO/DSP Hala. PW-13 SIP Abdul Sattar Solangi who produced mashirnama of recovery of abductee, FIR/Crime No.54 of 2002 showing him complainant. PW-13 ASI Hadi Bux Shah who produced letter addressed to M.O, inquest report of deceased Wali Muhammad and two receipt for handing over the dead bodies of deceased Dodo Khan and Wali Muhammad. PW-14 Ghulam Nabi HC. PW-15 Ghulam Hussain SIP who produced mashirnama for the place of occurrence and PW-16 Mr. Abdul Fatah, Civil Judge and Judicial Magistrate who produced memo of identification. The statements U/s 342 Cr.P.C of the accused were recorded to which they pleaded their innocence and denied the allegations of the prosecution.
After hearing the learned counsel for the parties, the trial Court passed the impugned judgment whereby appellant was acquitted in Special Case No.68/2002, culminating from Crime No.10/2002 of Police Station Batho Forest, but he was convicted in Special Case No.67/2002 of P.S Bhitshah while co-accused Manzoor Magsi was acquitted.
It is inter alia contended by learned counsel for the appellant that out of 16 P.Ws except PW- Ghulam Nabi, none has deposed against the appellant. It is further contended that two co-accused Ismail alias Chachro and Misri were let of by police U/s 169 Cr.P.C whereas co-accused Manzoor Magsi has been acquitted by the trial Court through impugned judgment. Per learned counsel on the same set of evidence, co-accused Manzoor has been acquitted while appellant has been convicted therefore, the appellant also deserves the same treatment. It is urged with vehemence that so far the charge of abduction for ransom is concerned, the same was not proved therefore, the appellant was acquitted in above case. It is lastly contended that P.W Nizamuddin (eye witnesses of the incident) did not depose against the appellant as well as abductee Muhammad Saleem who was allegedly abducted by the accused also did not recognize the appellant as one of the culprits who abducted him.
Conversely, learned State Counsel supported the impugned judgment on the ground that prosecution has proved its case beyond reasonable doubt therefore, appeal is liable to be dismissed.
PW-1 Muhammad Mubeen is mashir of place of occurrence, his deposition reveals that on 10.11.2002 on the pointation of complainant, the police came at the place of occurrence and in his presence mashirnama was prepared. Co-mashir was Qazi Dost Muhammad. His evidence is of formal nature therefore, needs no discussion.
PW-2 Nizamuddin is eye witness of the incident. His deposition reveals that on 4th Ramzan 2002, Saleem and Wali Muhammad were abducted while they were going on motorcycle. Though he is eye witness of the incident but he stated in clear terms that he has not seen the present accused persons while committing the crime. Not only this, but he stated that police had not examined him. The nutshell of his deposition is that he did not depose against the appellant or recognized him as one of the culprits.
PW-3 Abdul Wahid who is complainant in Crime No.10 of 2002 has deposed that Wali Muhammad and Muhammad Saleem are his cousins whereas PW Nizamuddin is his relative. He stated that on 10.11.2002 PW Nizam informed him about the abduction of Muhammad Saleem and Wali Muhammad following which, he went to Police Station and lodged the report. Upon a perusal of his deposition, it appears that he did not utter a single word against the appellant.
PW-4 Muhammad Saleem who is one of the abductees, he in his deposition stated that on 10.11.2002 he and Wali Muhammad were going on motorcycle to their village when they reached near their village suddenly a white coloured car hit their motorcycle, resultantly, they fell down and four persons came out from the car and they immediately abducted and bundled them in that car. However, he categorically stated that he did not identify any culprit as they had blind folded his eyes. However he did not identify the appellant and stated that no identification test was held in his presence.
PW-5 Abdul Sattar in his deposition stated that on the day of incident he was posted as SHO PS Batho Forest. On 10.11.2002 complainant came at Police Station and lodged the report. He registered FIR as per verbatim of the complainant. Later on he handed over the FIR to ASI Muhib Ali for investigation.
PW-6 ASI Muhib Ali in his deposition stated that on 10.11.2002 he was posted as ASI in Investigation Team at P.S Saeedabad. He received the FIR bearing Crime No.10 of 2002 for investigation. On the pointation of complainant he went to the place of incident and prepared mashirnama in presence of Muhammad Mubeen and Qazi Dost Muhammad. In his deposition he further stated that on same day he received message from TPO about the suspicious car at Saleem Rahoo road and he was directed to pursue that car, following which he alongwith his subordinate staff proceeded there where an encounter was going on between armed persons and the police at Umer Raho Kot. During that encounter Dodo Khan, gunman of TPO Hala sustained fire arm injuries and expired while dacoits ran away due to darkness of the night. His evidence further reveals that police entered into Kot of Umer Rahoo where they found abductees, they were in injured condition and were blind folded. He removed the band from the eyes of abductees. The abductees were secured by SHO who prepared the mashirnama. Police also secured the weapons which were left by culprits which included 7 MM rifle, 22 rounds and one pistol. His deposition further reveals that on 25.11.2002 he came to know that accused Muhammad Umer and Manzoor Magsi have been arrested in Crime No.54 of 2002 and they are detained at Police Station Hatri. He went there and arrested them in presence of ASI Shahmir khan and WHC Muhammad Waris. Later on he contacted SIP Ashique Rajput and got prepared mashirnama of recovery of car which was used in the commission of offence. However, the jist of his evidence is that on 25.11.2002 he arrested the appellant and co-accused Manzoor Magsi (since acquitted).
PW-7 Dr. Asadullah Shah who conducted the postmortem of deceased Wali Muhammad and Dodo. He stated that on 10.11.2002 he was posted as Medicolegal Officer at Bhit Shah when he received the dead bodies of Wali Muhammad and Dodo. He conducted the postmortems. Since the death of Wali Muhammad and Dodo Khan is not disputed therefore, it is not necessary to discuss the same.
PW-8 Pir Dino is mashir of arrest. His deposition reveals that on 24.11.2002 appellant and co-accused were arrested by ASI Abdul Ghafoor Korai in his presence. However, he did not depose against the appellant but merely stated that he is the same who was arrested by ASI.
PW-9 SIP Ashique Hussain in his deposition has stated that on 25.11.2002 he was posted at PS Matiari and received the case papers of Crime No.54 of 2002 of PS Bhit Shah. On 26.11.2002 he recorded the statement of PWs HC Ghulam Nabi, PC Ali Sher Jakhrani, PC Rabbani as well as abductee Muhammad Saleem. On 29.11.2002 during the interrogation accused Manzoor Magsi disclosed that he had left the car which was used in the commission of offence at workshop of Mitho Manghwar. Ultimately, accused Manzoor led them to the workshop and on his pointation they secured a car from the workshop. He prepared such mashirnama in presence of PC Yaqoob and PC Patasho. His deposition further reveals that on 13.11.2002 accused Muhammad Umer and Manzoor Magsi were produced before the Judicial Magistrate for identification parade through PC Ghulam Nabi and PC Ghulam Rabbani. He further stated that he sent the weapons to Ballistic Expert and received the report of Ballistic Expert and ultimately submitted challan. However, in cross examination while confronted with the FIR in Crime No.54 of 2002, he admitted that it is not mentioned that co-accused Manzoor and Muhammad Umer had abducted Wali Muhammad and Muhammad Saleem. He further admitted that in FIR, it is not mentioned that any body had identified or seen the face of accused during the encounter. While confronted with 161 Cr.P.C statements of PWs PC Ghulam Rabbani and Ghulam Nabi, he admitted that in their 161 Cr.P.C statements, they did not state that they had seen the accused persons clearly and they will be able to identify them. However, while replying to a suggestion, he stated that Magistrate had recorded the statements of PWs and they were made to sit in a separate room of the Court. Both rows of the dummies were arranged together. These rows of dummies were arranged in his presence by the Magistrate. The dummies were already present in Court and from the Court premises they were clearly seen by every one. From his deposition it appears that at the time of identification parade SIP Ashique Hussain was present. Not only this but he has categorically stated that rows of dummies were arranged in his presence therefore, presence of Investigation Officer at the time of identification parade creates doubt about the sanctity of identification proceedings. He also admitted that heights of dummies were different from that of accused persons. In view of above possibility cannot be ruled out that before identification parade accused were shown to P.Ws Ghulam Rabbani and Ghulam Nabi. Therefore, entire proceedings of identification parade come under cloud and could not be relied upon. He also admitted that dummies were of different heights from the heights of accused persons. It reveals that during entire proceedings of identification parade, SIP Ashique Hussain was present therefore, even on this single score alone the identification parade has lost its value and cannot be relied upon.
PW-10 ASI Abdul Ghaffar in his deposition stated that on 21.11.2009 while he was posted as ASI at P.S Hala, he received the case papers of Crime from Ghulam Hussain Mashori on 24.11.2002. On spy information he arrested accused Muhammad Umer and Manzoor Magsi from Bhitshah Airport. He prepared mashirnama of arrest in presence of PWs Pir Dino and PC Arbab Ali. He obtained the remand of accused but subsequently investigation was transferred to SIP Ashique Ali. However, in cross examination, while replying to a suggestion he admitted that he was transferred from Hala to Bhitshah Police Station on 21.11.2002.
In view of above admission, a doubt appears with regard to the date of arrest of the accused. On the one hand, he claims that on 24.11.2002 he arrested the accused from Bhitshah Airport, on the other hand he admitted that on 21.11.2002 he was transferred from Hala to Bhitshah. Under these circumstances, it appears that accused were already in police custody and memo of their arrest is nothing but mere formality.
PW-11 PC Muhammad Yaqoob is mashir of recovery of car. His deposition reveals that while in police custody accused Manzoor Magsi led the police party to a garage and on his pointation police recovered the car, allegedly used in crime.
PW-12 DSP Zafar Iqbal in his deposition reiterated the same facts as mentioned in the FIR bearing Crime No.54/2002 of P.S Bhitshah. However, in his deposition he did not state that any member of police party identified the accused. As far as identity of accused who were present in Court is concerned, he stated as under:-
“I have not seen the present accused persons as to be culprits.” In other words, he did not depose against the appellant/accused.
PW-13 SIP Abdul Sattar also repeated the same facts as stated in the FIR No.44/2002 of P.S Bhitshah. However, he stated in clear terms that he did not see the accused at the place of occurrence and accused persons present in this Court are not same.
PW-14 PC Ghulam Nabi in his deposition stated that on 10.11.2002 he was posted as HC at Hala. A message was aired with regard to the abduction of abductees. DSP Ali Sher received a message that car used in the commission of Crime was seen at link road Mirza. DSP alongwith other police officials followed the wheel prints of the car and led the Kot Umer Rahoo. Other police officials also arrived there. All of a sudden accused started firing upon the police party, police also fired in their defence. He and PC Rabbani were also there. Exchange of firing continued for about 40 minutes. Meanwhile, HC Dodo sustained fire arm injuries and died. Dacoits took away the KK of HC Dodo and by taking advantage of darkness they made their escape good. He saw the dacoits on the light of mobile. They were two dacoits, police followed their foot prints but same disappeared. When they returned and went inside the Court, found two abductees. One of them was in injured condition and was removed to the hospital, however, in the way he succumbed to his wounds. Second abductee was also injured. His 161 Cr.P.C statement was recorded. Identification test was held in the Court but he did not remember the date of identification parade. He and PC Rabbani were called for identification parade. Identification proceedings started from 10-00 a.m in the Veranda of Court where he was called through a peon of the Court. He saw two rows were arranged and there were 10 dummies in each row. He picked up the culprit Umer Rahoo who was standing at Serial No.5 of the second row. He did not pick out accused Manzoor Magsi. However, he stated that he did not see the culprits when they tried to run away.
In cross examination, he stated that he had fired 40 rounds. While replying to a suggestion, he stated that after firing was over, the culprits immediately run away from that side. In reply to another suggestion, he stated that there was a turn where he was standing and there was a gate and culprits ran away from that place. In reply to another suggestion, he denied that second abductee Saleem had not sustained fire arm injuries. However, in cross examination, he admitted that he did not remember after how much period of the incident, the identification test was held before the Magistrate. He further admitted that some persons told him about the arrest of accused and identification test which was to be held. He denied a suggestion that accused were seen by him before the identification parade. While replying to an important suggestion, he gave admission in following words:-
“The dummies were of different descriptions of their faces and heights.” However, he denied the other suggestions.
Upon bare perusal of his deposition, it appears that he did not see the accused when they tried to run away as admitted in his examination in chief. If he did not see them then the question arises how he identified them in an identification parade. There is admission with regard to the date and difference in heights of dummies. He also did not remember the date on which identification parade was held.
PW-15 SIP Ghulam Hussain in his deposition stated that on 11.10.2002 he was incharge Investigation Team P.S Bhitshah and received this case from SIP Abdul Sattar Solangi for investigation. He proceeded to the place of occurrence which was situated in Deh Sakhiani. He went to the place of occurrence and prepared mashirnama of wardat. From Kot Umer Rahoo he recovered a piece of shirt of injured Wali Muhammad (abductee) which was blood stained. He also found 10 empties alongwith 13 empties of G-3 Rifle. He secured such articles and sealed them, prepared mashirnama in presence of mashirs HC Muhammad Ramzan and PC Muhammad Akram. However, in cross examination, while replying to a suggestion he stated as under:-
“I do not know to whom the piece of shirt of shoulder side belongs.”
PW-16 Abdul Fatah, Civil Judge & Judicial Magistate who conducted the identification proceedings, stated that on 30.11.2002 he was posted as Civil Judge & Judicial Magistrate, Matiari when the SHO PS Bhitshah submitted a letter for holding the identification test of accused. PWs HC Ghulam Nabi and PC Ghulam Rabbani were produced before him. Both the PWs were ordered to sit in the office of Clerk of his Court. Accused were produced before him. He arranged two rows of dummies consisting of 11 dummies in each row. Identification test was arranged infront of Court premises. Before the identification parade, he got removed the handcuffs of accused persons and then they were ordered to stand with dummies according to their choice. Accused Muhammad Umer stood at Serial No.5 of the area while accused Manzoor stood at Serial No.3. PW Ghulam Qadir was called who identified the accused Umer and Manzoor. He again re-arranged the rows of the dummies. Accused Manzoor stood at Serial No.2 of the row while accused Muhammad Umer stood at Serial No.5 from the right side in the second row. Then PW Ghulam Rabbani was called and he rightly picked out both the accused persons from each row. However, he stated that during course of investigation, the accused persons complained that they are kept in police custody since long and were shown to the PWs in police custody. So far identity of the accused persons was concerned, he deposed as under:-
“I cannot identify the accused persons as sufficient time has passed.”
In cross examination, while replying to a suggestion he admitted that names of PWs are written in different hands.
Upon perusal of deposition of the PWs and material available on record, it appears that out of 16 prosecution witnesses, 15 PWs did not depose against the present appellant though PW-Muhammad Saleem remained with dacoits but he did not identify the appellant as one of his abductors though he was star witness of the prosecution. Besides him PW-Nizamuddin is said to be eye witness of the occurrence as in his presence, the abductees were kidnapped by the culprits but he also did not depose against the appellant. PW-SIP Abdul Sattar is also one of the members of police party who participated in the alleged encounter with the dacoits but he categorically stated that he did not see the accused at the place of occurrence and also did not recognize the accused who were present in Court. PW-DSP Zafar Iqbal also led the police party which participated in the alleged encounter but he also did not recognize the appellant as one of the culprits or deposed against him. The manner in which the identification parade was held also creates doubt about the credibility and authenticity with regard to the identification parade as PW Ashique Hussain has admitted that at the time of proceedings of identification parade, he was present. Not only this but he admitted that rows of dummies were arranged in his presence. Besides this, he also admitted that heights of dummies were different from that of accused persons. The deposition of Civil Judge & Judicial Magistrate reveals that accused namely Umer Rahoo and Manzoor Magsi were identified by PW Ghulam Nabi and Ghulam Rabbani but in his examination in chief, PW Ghulam Nabi stated that he identified the accused Umer Rahoo and could not identify accused Manzoor Magsi but again in his examination in chief he stated that he did not see these culprits when they tried to run away. Admittedly the car in which the abductees were bundled recovered on the pointation of co-accused Manzoor Magsi but on same set of evidence, the trial Court convicted the present appellant and acquitted co-accused Manzoor Magsi.
After going through the entire prosecution evidence, it appears that case of prosecution is based on the identification parade of accused but neither his features or descriptions were mentioned in the FIR nor PW Ghulam Nabi stated that he had seen the accused and would be able to identify them. Not only this but he even did not disclose the date of identification parade. Apart from this, the memo of identification parade and deposition of the Civil Judge & Judicial Magistrate reveal that two accused were identified by him in identification parade whereas in his deposition PW Ghulam Nabi stated that he identified accused Umer Rahoo but did not identify accused Manzoor Magsi and on same time he stated that he did not see the accused while they were running. The deposition of PW Ghulam Nabi did not get corroboration from the depositions of other PWs. In cross examination, SIP Ashique Hussain who is Investigating Officer while confronted with 161 Cr.P.C statements of PWs Ghulam Rabbani and Ghulam Nabi admitted that in their 161 Cr.P.C statements, they did not state that they had seen the accused persons clearly and would be able to identify them. Since the prosecution case rests upon the identification parade of accused and during identification though appellant/accused was picked up but PW did not describe his role in the commission of crime. The Magistrate who supervised the identification parade also did not state that PWs described any role of the accused in the commission of crime. Entire evidence relating to identification parade indicates only picking up without describing any role in the crime. It is settled law that where accused is picked up in identification parade without describing his role played in the commission of crime, the same suffers from illegality and render it completely unreliable, having no evidentiary value in the eyes of law.
For the foregoing reasons, we are of the considered view that prosecution has miserably failed to produce trustworthy and reliable evidence connecting the appellant with the commission of offence. The prosecution did not prove its case beyond any shadow of doubt against the appellant as no trustworthy and inspiring confidence evidence was produced during the trial. Consequently, appeal was allowed and the appellant was acquitted of the charge vide short order dated 26.08.2010.
JUDGE
JUDGE
Tufail