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