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