HIGH COURT OF SINDH AT KARACHI

Special Anti-Terrorism Appeal No.08 of 2008

 

Present:          Sajjad Ali Shah, J.

                        Naimatullah Phuploto, J.

 

Appellant:                       Amir Bux @ Ghous Bux @ Ghouso Brohi @ Sudhir Brohi through Mr. A. Q. Halepota, Advocate

 

Respondent:                   The State through Mr. Khadim Hussain Khoonharo, Deputy Prosecutor General Sindh.

 

Date of hearing:              16.01.2013

 

JUDGMENT

 

NAIMATULLAH PHULPOTO,J.- Appellant Ameer Bux @ Ghous Bux @ Ghouso Brohi @ Sudhir Brohi son of Muhammad Ramzan and absconding accused were tried by learned Judge, Anti-Terrorism Court No.II, Karachi, under Sections 365-A/395/34 PPC and Section 6(2)(e) punishable u/s 7(2)(e) Anti-Terrorism Act, 1997. The learned Trial Court vide judgment dated 29.03.2008 convicted accused Ameer Bux @ Ghous Bux @ Ghouso Brohi @ Sudhir Brohi under section 6(2)(e) and 7(e) of Anti-Terrorism Act 1997 to imprisonment for life and forfeiture of property, while co-accused Attaullah was acquitted. Case of proclaimed offenders was kept on dormant file.

 

2.       Brief facts of the prosecution case, as disclosed in the FIR are that, complainant Muhammad Yousuf lodged FIR at Police Station Manghopir on 05.09.2007 at 01-00 hours, alleging therein that his brother Zia-ur-Rehman aged about 30/32 years was running ECI Asphalt Plant situated near crossing Hamdard University, Northern Bypass, Karachi. It is further alleged in FIR that at the time of incident his brother was present at the plant along with his staff and labourers. At about 9:00 PM, 6/7 persons armed with deadly weapons appeared at the plant and by show of force asked the labourers to laydown on which they laid down, thereafter culprits by show of force kidnapped his brother Zia-ur-Rehman. Information of the incident was conveyed to the complainant by one Jamshed Munshi on the telephone, complainant immediately reached at the plant. He collected necessary information and went to the Police Station for lodging the report. FIR was lodged under the above referred sections against unknown persons. During the course of investigation on 08.09.2007, complainant received a call on cellular No.0321-2340022 from mobile No.0307-3951067 of unknown culprit, who demanded ransom of Rs.2 Crores from the complainant for the release of his brother Zia-ur-Rehman from the captivity of the culprits. In the meanwhile, investigation of the case was transferred to AVCU, culprits continued demand for payment of ransom on 03.10.2007, after receipt of Rs.25 lacs from PW Muhammad Waseem, brother of abductee was released. Accused Attaullah s/o Dur Muhamad was arrested on 11.10.2007, appellant Ameer Bux @ Ghous Bux @ Ghouso Brohi @ Sudhir Brohi was arrested in this case on 07.12.2007. Appellant Ameer Bux @ Ghous Bux @ Ghouso Brohi @ Sudhir Brohi was put to identification by Mr. Ghulam Yaseen Kolachi Civil Judge & Judicial Magistrate, Karachi West on 07.12.2007 through witnesses.

 

3.       After usual investigation, challan was submitted against accused under above referred sections. NBWs were issued against the absconding accused. The same returned unexecuted. Absconding accused were declared as proclaimed offenders.

 

4.       Trial Court framed charge against appellant and            co-accused Attaullah. Both the accused met the charge with denial.

 

5.       In order to substantiate the charge, prosecution has examined the following witnesses:-

(1)    P.W/ASI Muhammad Asif as Ex.9, who produced FIR as Ex.9/A.

 

(2)    P.W/ASI Muhammad Tahir Rajput Chohan as Ex.10, who produced memo of arrest of accused Ameer Bux @ Ghous Bux @ Ghouso Brohi @ Sudhir Brohi son of Muhammad Ramzan so also Najam Din Chandio s/o Piyaro Khan as Ex.10/A.

 

(3)    Mr. Ghulam Yaseen Kolachi Civil Judge & Judicial Magistrate IV-Karachi West as Ex.12, who produced application of the I/O for holding identification parade along with order of the Magistrate passed on the same as Ex.12/A so also memo of identification parade as Ex.12/G and photocopy of NICs of P.Ws-Jamshed, Abdul Rasheed and Shafiq Khan as Ex.12/A, Ex.12/C, Ex.12/D, Ex.12/E and Ex.12/F.

 

(4)    SIP Muhammad Akram as Ex.13, who produced memo of inspection of place of wardat as Ex.13/A and search of the room.

 

(5)    P.W-Constable Muhammad Sajid was examined as Ex.14, who produced memo of arrest of the accused Attaullah as Ex.14/A.

 

(6)    P.W Muhammad Waseem Kaimkhani was examined as Ex.16, who produced memo of securing audio CD as Ex.16/A.

 

(7)    PW Jamshed Kaimkhani examined as Ex.17, who produced photocopy of notice served upon him for identification parade as Ex.17/A.

 

(8)    P.Ws Asif Kaimkhani, Muhammad Yousuf Kaimkhani and P.W Muhammad Shafiq Kaimkhani as Ex.18 and Ex.19 who also separately produced notices u/s 160 Cr.P.C served upon them as Ex.18/A and Ex.19/A.

    

 

6.       The statements of accused were recorded under section 342 Cr.P.C. Accused Attaullah denied the prosecution case. Appellant Ameer Bux @ Ghous Bux @ Ghouso Brohi @ Sudhir Brohi has raised the plea that he was arrested on 23.11.2007 by CID police and he was booked in Crime No.104/2007 registered at P.S CID Civil Lines and was handed over to the investigating officer of this case on 30.11.2007. Appellant has also denied that his voice was recorded and he had demanded ransom. Regarding P.Ws as to why they deposed against him he has stated that P.Ws were setup witnesses and they have deposed against him under the influence of one Farid Jan Sarhandi, SP, CID, as his cousin Muhammad Bux had made complaint against the said police officer in the High Court. In the reply to the question what else he has to say, appellant has raised the plea that he was detained by the police in 2006 in false encounter case and his cousin had filed constitutional petition in the High Court against the police officials. He has further replied that with malafide intention, he has been booked in this case and his real name is Sudhir not Ameer Bux. Appellant Ameer Bux did not lead evidence in defence and declined to give evidence on oath.

 

7.       Trial Court after hearing the counsel for the parties and after assessment of the entire evidence, convicted and sentenced appellant Ameer Bux @ Ghous Bux @ Ghouso Brohi @ Sudhir Brohi, as stated above and acquitted co-accused Attaullah, through the impugned judgment.   

 

8.       Mr. A. Q. Halepota learned Advocate for Appellant argued that ocular testimony furnished by PWs is unreliable as PWs Jamshed Ali, Muhammad Asif and Muhammad Shafiq are the employees of the complainant. It was nighttime incident, features of 7/8 assailants so also their names are not mentioned in the FIR. In the identification parade none of these witnesses mentioned role played by the appellant at the time of abduction. The heads of the prosecution witnesses were down at the time of incident, they had no sufficient opportunity to see the culprits. Mr. Halepota submitted that identification parade was not held as per rules. Civil Judge and Judicial Magistrate selected ASI Abbas Ali and PC Muhammad Naeem to act as mashirs of identification parade. National identity cards of the dummies and number of dummies are not mentioned in the identification memo. It is also submitted that actual name of the appellant is Sudhir and not Amir Bux alias Ghouso. All the incriminating pieces were not put to the accused in his statement under section 342 Cr.PC. Finding of the trial Court on voice recorded in CD is not supported by some scientific method. It is also argued that payment of ransom paid through PW Waseem has not been established by cogent evidence. It is further argued that evidence of abductee is untrustworthy, it cannot be relied upon for the purpose of conviction of appellant as abductee has stated two persons Amir Bux and Ghouso were guarding over him. In support of his contentions he has relied upon the following reported cases:

1.           The State versus Tariq Mehmood (1987 PCrLJ 2173)

2.           Tariq Pervez Vs. The State (1995 SCMR 1345)

3.           Paramjeet Singh @ Pamma V. State of Uttarkhand (AIR 2011 Supreme Court 200)  

 

          In the case of Tariq Mehmood (supra) it has been observed as follows:

“Before the damage resulting from erroneous sentence is irreversible.

 

The principle that it is better to acquit guilty persons than to punish an innocent one had been proclaimed by the Prophet of Islam 14 hundred years ago has no become the guiding principle for the safe administration of justice.

 

          For the above reasons we do not uphold the conviction of the appellant and allow the appeal of Ghulam Ali Shah, appellant, set aside his conviction and sentences and acquit him of the charge. The suo motu notice issued to Tariq Mehmood is also realled.”

 

          In the case of Tariq Pervez (supra) it has been held as follows”

“The concept of benefit of doubt to an accused person 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 creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

 

In the case Paramjeet Singh (supra) it has been observed as follows:-

“Thus, it is evident from the above that the provisions of Section 313 Cr.PC make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court.”

 

9.       Mr.   Khadim Hussain Khoonharo, Deputy Prosecutor General Sindh, defended the impugned judgment and argued that the prosecution case is based upon ocular account furnished by eye witnesses who had no enmity or motive for false implication of the appellant in this case. It is further argued that alleged enmity of the appellant with the police officials has no concern whatsoever with this case as in this case complainant and abductee are private persons, they have fully implicated the appellant in the case. Regarding identification parade it is submitted that it was held by the Civil Judge and Judicial Magistrate while adopting the legal procedure. In cases of kidnapping for ransom it is immaterial to assign role to each and every accused in the commission of offence. Learned state counsel has submitted that the appellant was rightly identified by witnesses in identification parade, ransom was paid for the release of the abductee, there was huge evidence against the appellant and trial Court has rightly convicted the appellant. In support of his contentions, he relied upon the case of Ghazanfar Ali alias Pappu and other Vs. the State 2012 SCMR 215.

 

10.     We have carefully heard the learned counsel for the parties and scanned the entire evidence brought on the record.

 

11.     In this case FIR was lodged by the complainant against unknown persons. During investigation material was collected against appellant. The prosecution case is based on (i) ocular account, (ii) identification parade (iii) payment of ransom. Ocular account was furnished by PWs Jamshed, Muhammad Asif, Muhammad Shafiq and Zia-ur-Rehman.

 

12.     Abductee Zia-ur-Rehman has clearly deposed that on 04.09.2007 he was sitting with his cousin Shafiq on a cot at plant where armed persons appeared and asked complainant party to raise the hands up, in the meanwhile, employees of the plant also arrived. One culprit was armed with T.T. pistol and the others were armed with Kalashnikovs and took Zia-ur-Rehman to the bushes. Abductee was detained at various placed. Two persons armed guarding over the abductee were being called Amir Bux and Ghousoo. Abductee was informed by Ghousoo that they have demanded rupees one crore from his brother. He has further deposed that his brother paid Rs.2,500,000/- as ransom for his release. PW Zia-ur-Rehman has clearly stated that accused Ghousoo present in the Court is same. He has clearly stated that he had identified the Appellant in the identification parade. PW Jamshed has stated that on 04.09.2007 at about 08:45 pm or 09:00 p.m., he was sitting at the container/office where he heard voice outside. He saw that culprits armed with weapons, abducted Zia-ur-Rehman and snatched cash of Rs.1,000,000/- from his packet and mobile phone. He has stated that he had narrated the incident on phone to complainant Muhammad Yousuf, brother of the abductee. Regarding identification parade he replied that he had identified appellant Amir Bux present in Court.

 

13.     PW Muhammad Arif has deposed that at the relevant time he was present at the plant, all of sudden some persons armed with deadly weapons appeared there, snatched mobile phone from him and warned not to raise the heads upwards else would be done to death and kidnapped Zia-ur-Rehman. He has stated that he identified appellant in the identification parade.

 

14.     After arrest of appellant Amir Bux he was put to the identification parade. It was held by Mr. Ghulam Yaseen Kolachi, Civil Judge and IV Judicial Magistrate Karachi West, he deposed that he conducted the identification parade of accused Amir Bux alias Ghousoo alias Sodhir Brohi through witnesses Muhammad Arim, Shafiq, Abdul Rasheed, Abdul Rehman and abductee Zia-ur-Rehman on 07.12.2007 at 11:00 a.m. by observing all the formalities. Civil Judge and Judicial Magistrate has stated that Amir Bux alias Ghous Bux alias Sodhir Brohi was identified by above named witnesses in the identification parade. So for evidence of ransom is concerned, PW Waseem has deposed that he paid ransom and his brother was released.

 

15.     From perusal of the evidence of the eye witnesses and Civil Judge/Judicial Magistrate, who conducted identification parade it is proved by cogent evidence that Appellant Amir Bux alias Ghouso alias Sudhir Brohi had kidnapped Zia-ur-Rehman for ransom. There is nothing in evidence that these witnesses have deposed falsely against the appellant and he was rightly picked up in identification parade. It is the settled law if the accused is identified in the Court and evidence inspires confidence it is sufficient to record the conviction. Reliance can be placed upon the case reported as Ghazanfar Ali alias Pappu and other Vs. the State (2012 SCMR 215). Relevant portion is reproduced as under:-

“Even otherwise the holding of identification parade is not mandatory and it is merely a corroborative piece of evidence. If the statement of a witness qua the identity of an accused even in Court inspires confidence, if he is consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, the absence of holding of identification parade would not be fatal to the prosecution.”

 

16.     Moreover, the recording and appreciation of evidence is primary function of the trial court, the trial Court which had the benefit of observing the demeanours of the witnesses, after assessing and examining the corroborative evidence found witnesses worthy of reliance by observing in judgment as follows:-

 

“From perusal of the prosecution witnesses it is crystal clear that accused Amir Bux @ Ghousoo @ Sodhir Brohi is very much implicated and involved in this case, who very much is identified by the eye witnesses including the abductee in this court by his name during the evidence. So far as accused Attaullah is concerned the eye witnesses excepting the abductee have neither described any role nor he is identified by them during their evidence in this court. Although abductee Zia-ur-Rehman in his evidence has deposed that he had incidentally happened to see Attaullah and Imam Ali for a while when Pati was removed from his eyes. When his feathers and description and Hulyas are not admittedly disclosed in the FIR so also in the 161 Cr.PC statements of the PWs. In these circumstances his identification parade was a must, but identification parade of this accused is not conducted. The result is that prosecution has failed to prove guilt of the accused beyond slightest reasonable doubts against the accused on this capital charge.

 

Although identification parade of accused Amir Bux @ Ghousoo Brohi @ Sodhir Brohi is held in this case but admittedly features, descriptions and hulya of these witnesses are neither given in the FIR nor in the 161 Cr.PC statements of the PWs particularly the eye witnesses and his specific role is also not described. Therefore, identification parade of this accused has become value less. But still as per abductee PW Zia-ur-Rehman he used to remain over him to guard and was seen for considerable time and that one day he had told him that  his brother was not making payment of Rs.One Crore ransom, he has identified him in this court during his evidence to be the same, therefore, in view of 2000 PCrLJ P-299, 2000 PCrLJ P-677 and 1995 SCMR P-1793 relied upon by the learned SPP.  In these circumstances, holding of identification parade was not mandatory and evidence of the victim and other PWs who have deposed before this court to be present at the time of incident is sufficient to bring guilt home of accused Amir Bux @ Ghous Muhammad @ Ghousoo Brohi @ Sodhir Brohi.

 

So far payment of ransom is concerned from evidence of PW Wasim it stands proved and his evidence is not shattered by the defence. It is only through the cross-examination this factum is tried to be shown as doubtful on the ground of making arrangements for the money and the proof thereof whether through the bank or otherwise. But in 2004 YLR P-300 relied upon by learned SPP, source for making arrangements of the ransom amount and nonpayment of ransom is not necessary to be proved, therefore, immaterial.”

 

17.     From the close scrutiny of the prosecution evidence available on record this Court is satisfied that the trial Court had appreciated the evidence in accordance with law. There was huge evidence against the Appellant Amir Bux alias Ghousoo alias Sodhir Brohi to connect him in the commission of offence. He was identified by the eye witnesses particularly the abductee in the identification parade held before the Civil Judge and Judicial Magistrate, so also in trial Court. Contention of          Mr. Halepota that appellant Amir Bux is not same person is without merit for the reason that it is common knowledge that in the village one man can be called by different nicknames and by different pronunciations. Appellant was identified in Court therefore his presence at the place of occurrence and kidnapping the abductee for ransom cannot be disputed. The evidence of payment of ransom through the evidence of PW Waseem stands proved beyond any shadow of doubt. Despite lengthy cross-examination the same has not been shattered by the defence. Case law relied upon by learned defence counsel is not applicable to the circumstances of the case.

 

18.     For the afore-stated reasons, we have come to the conclusion that the trial Court had rightly believed the prosecution evidence, which was found confidence inspiring. There is no reason for us to disagree with the appreciation of the evidence by the trial Court. We do not find any merit in the appeal, which is dismissed.       

   

                                                                            JUDGE

 

                         JUDGE