Reading of the provisions of Section 80-D reveals that it is the minimum tax imposed on certain persons and starts with non obstante clause notwithstanding in the Ordinance

IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. Justice Muhammad Ather Saeed, and

Mr. Justice Irfan Saadat Khan.

Special Anti-Terrorism Jail Appeal No. 04 OF 2009

Mst. Parveen Akhtar v. The State

For the Applicant: Mr. Kashif Hanif, Advocate.

For the Respondent: Mr. Khadim Hussain, DPG.

Special Anti-Terrorism Jail Appeal No. 05 OF 2009

Noor Bacha v. The State

For the Applicant: Mr. Ashfaq Rafiq Janjua, Advocate.

For the Respondent: Mr. Khadim Hussain, DPG.

Special Anti-Terrorism Jail Appeal No. 06 OF 2009

Sultan Zaib and another v. The State

For the Applicants: Mr. Sohail H.K. Rana, Advocate.

For the Respondent: Mr. Khadim Hussain, DPG.

Date of hearing: 21.3.2011.

JUDGMENT

IRFAN SAADAT KHAN, J: These Special Anti-Terrorism Jail Appeals have been filed against the judgment of the Anti-Terrorism Court No. II Karachi dated 31.12.2008 in Special Case No. 40/2007 relating to FIR No. 571/2007 under section 365-A/34 PPC read with Section 7 ATA 1997 registered with P.S Korangi, Karachi whereby the accused persons namely Sultan Zaib S/o Shah Nazar, Israel S/o Islam-u-din, Noor Bacha S/o Muhammad Sardar and Mst. Parveen Akhtar wife of Israel have been convicted for offences under section 6(2)(e) of ATA Act 1997 alongwith Sections 365-A /34 PPC and were punished to suffer life imprisonment and forfeiture of their property under section 7 of the ATA Act 1997. However benefit of section 382-B Cr.P.C was extended to all of them.

2. Briefly stated the facts are that the complainant lodged a FIR on 30.07.2007 stating that he is residing within the jurisdiction of P.S. Korangi, Landhi Town Ship Karachi alongwith his family and by profession he is a transporter. As per the contents of the FIR on 26.07.2007 at about 7:00 hours his wife told him that his nephew Sher Dil, who was playing outside his house, is missing. The complainant immediately searched the vicinity and announcements were made about the missing child from the nearby mosques but the child could not be found. On the same day at about 22:45 hours, while he was in his workshop, he received a phone call from a mobile phone No. 0345-6121668 that his nephew is with the caller, who disclosed his name as Sultan. The said person Sultan then demanded Rs. 21 Lac as ransom for returning the child and in case of non-fulfillment of his demand he threatened that he would kill the child. The complainant thereafter approached the Police Station and lodged FIR against the accused persons namely Sultan Zaib and Muddassar. Preliminary inquiry was conducted by Inspector Mr. Ashraf Sherwani of AVCC, but subsequently the investigation was transferred to Inspector Muhammad Babar of AVCC, who during the investigation arrested the accused persons and collected the data of the mobile phone etc. The police after completing the formalities produced the accused persons before Administration Judge, High Court of Sindh who transferred the matter to ATC Court which tried the case and after finding the accused persons guilty of the offences convicted them in the manner detailed above. Hence these appeals.

3. We have heard Mr. Kashif Hanif, Advocate who appeared on behalf of accused Mst. Parveen Akhtar, Mr. Ashfaq Rafiq Junjua, Advocate appeared for accused Noor Bacha, Mr. Sohail. H. Rana, Advocate appeared on behalf of Sultan Zaib and Israel and Mr. Khadim Hussain DPG for the State.

4. Mr. Kashif Hanif Advocate, at the very outset, submitted that he wants to read the deposition of abductee Sher Dil, which is available on page No.199 of the paper book. He submitted that perusal of this statement would reveal that the child was tutored by some persons outside the court before he was to give his deposition in the Court. He submitted that it has clearly been mentioned in the deposition of the child that he was told that the accused sitting in the Court had abducted him. He thereafter read out the deposition of all the PWs and submitted that the deposition of PW1 Mr. Mushtaq, who is an ASI, would reveal that the said ASI has categorically stated that no report of any missing person was reported at the Police Station from 26.07.07 till 30.07.07 in his presence. This according to the learned counsel is a dubious statement, as admittedly the FIR was lodged on 30.07.07, hence the said deposition of ASI Muhammad Mushtaq is against the facts of the case. The learned Counsel then attacked the deposition of PW2 Javed Khan, who had stated in his deposition that the abductee resides with his parents whereas in the FIR he has disclosed that the abductee Sher Dil was residing with him for the last 15/20 days. He submitted that it is quite strange that the kidnappers instead of calling the father of the abductee were calling Javed and demanding the ransom amount from him. He further submitted that there is no eye witness of the abduction and no specific role has been assigned to any of the accused when admittedly the house of the complainant is situated in a populated area. He submitted that from the statement of the abductee and the PWs neither it is proved that the accused persons were involved in the kidnapping nor any case of ransom has been proved against them.

5. Mr. Ashfaque Rafiq Janjua, advocate appeared on behalf of the accused Noor Bacha and adopted the arguments of Mr. Kashif Hanif. He submitted that four cases were registered against the accused out of which he was acquitted in three of them. He submitted that no mobile phone was recovered from his possession so as to directly implicate him in the said crime. No PWs have either named or identified him. As per the learned Counsel no specific role has been assigned to the accused. He also submitted that there are marked contradictions with regard to the relation of the complainant with the abductee as at some places he had named the abductee as his nephew whereas at some places he had stated his relation with the abductee as that of a father and a son. He further submitted that it is also strange on the part of the police that neither any of the hotel staff nor any private person was made mushir to substantiate the prosecution case. In support of his above contentions the learned Counsel relied upon the following judgments:-

i) Irshad Ali alias Ishoo and two others V/s The State (PLD 2006 Karachi 178)

ii) 2002 PCRC 1499

iii) Muhammad Akram V/s The State (2009 SCMR 230)

iv) State V/s Muhammad Akmal [2000 NCR (Shariat Decision) 506]

v) Muhammad Imran Ashraf V/s The State (2001 SCMR 424)

vi) Dr. Khalid Moeen V/s The State (2006 PCr. L.J 639)

vii) Muhammad Juman V/s The State (2001 P.Cr. L.J. 1312)

viii) Gulin Khan V/s The State (2000 P.Cr.LJ 1306).

6. Mr. Sohail H.K. Rana appeared on behalf of accused Sultan Zaib and Israil and adopted the arguments of other counsel. He further submitted that the case made out against the accused persons is totally false as they were initially arrested by the police treating them as Taliban and thereafter were charged with the present offences. He submitted that the identification parade was also doubtful as the Magistrate called 15 persons as Dummies and one accused person was included in the dummies for identification parade. However the Dummies remained the same during the whole process of identification parade whereas only accused were taken out or added in the said identification parade, which process of identification is totally against the norms of the law and this type of identification could not be considered to be the identification parade as prescribed under the law. He submitted that there is also contradiction with regard to the age of child as at some places his age is mentioned as 3 years whereas at some places as 5 years. He further submitted that it is not possible that the child of 3 years or 5 years was playing outside the house at 7:00 am in the morning, as according to the FIR the wife of the complainant informed him at 7:00 am in the morning that the child is missing. He submitted that in view of the contradictions the prosecution has failed to make out any case against the accused persons, hence they may be acquitted.

7. The learned APG Mr. Khadim Hussain supported the order passed by the ATC Court and submitted that there is no contradiction so far as the deposition of PWs are concerned. He submitted that the abductee has identified the accused persons and therefore the charges leveled against them were duly proved. In support of his contention the learned Counsel has relied upon Article 40 of Qanoon-e-Shahdat Ordinance and submitted that the mobile phone, from where all the calls were made, was recovered from the possession of accused which has not been denied. He further stated that after the arrest of Sultan Zaib and on his pointation a raid was made by the police and the abductee was recovered which proves the case of prosecution. He further submitted that the abductee was of tender age and for refreshing his memory he was asked certain questions which could not be termed as tutoring. He also invited our attention to Article 119 of Qanoon-e-Shahadat Ordinance and in the end submitted that the accused persons were rightly convicted by the ATC Court as they were involved in the heinous crime of kidnapping and do not deserve to be acquitted. He further submitted that it has not been alleged by the accused persons that police had any pervious enmity with them and hence their present appeals are liable to be dismissed.

8. We have heard all the learned Counsel at considerable length and have perused the record and the decisions relied upon by them.

9. We have minutely gone through the evidence of the Prosecution Witnesses with the assistance of the learned Counsel for the appellant who have pointed out a number of contradictions in the evidence of Prosecution Witnesses. The perusal of the evidence of PW1 Muhammad Mushtaq ASI, AVCC would show that he has categorically stated that no report for the missing of any child was reported at Police Station from 26.07.2007 to 30.07.2007 in the Police Station which is contrary to the record as the FIR bearing No. 571/07 was duly registered on 30.07.2007 by the complainant Javed Khan under section 365-A/34PPC wherein kidnapping of the child was duly reported. The deposition of PW2 Javed Khan, who is the complainant in the present case and a transporter by profession, reveals that the father of the abductee namely Taoos Rehman was with him when he received a call from the accused persons and thereafter informed the father accordingly. However it is strange to note that why the accused persons contacted Javed Khan and not father of the abductee for demanding the ransom amount, when admittedly the father of the abductee was having his own mobile phone. His deposition further reveals that neither the father nor the mother of the abductee went to the police station with him nor to the office of the CPLC for lodging of the FIR and providing a tape recorder for recording the calls made by the accused persons. His deposition further reveals that his statement under section 161 Cr.P.C was recorded by the I.O. on 26.07.2007 whereas his statement was recorded on 22.08.2007 and no explanation has been given for the late recording of the said statement. He also stated that he was not with the police party when the police party entered the room of the Hotel when raid was conducted by the police on the pointation of the accused Sultan Zaib who disclosed that the child was kept in the said room of the hotel by the other accused persons as according to Javed Khan, he was standing at stairs. His deposition further reveals that he lives in a populated area whereas there were neither any eye witnesses of the kidnapping nor any Mohalla person was inducted as mushir in the present case by the police. His deposition also reveals that he has stated that the accused Sultan Zaib and Noor Bacha were neither interrogated nor they disclosed the place of captivity of the abductee in his presence.

10. Deposition of PW3 Ali Muhammad S.I.P posted at AVCC reveals that his high ups informed him that accused Sultan Zaib is involved in the crime of abduction for ransom and has a Suzuki high roof bearing registration No. CK-1846. He further stated that the police party headed by DSP Rao Aslam reached Quaidabad at 12:50 am and at about 4:30 am they saw the Suzuki coming from Dawood Chowrangi and when they stopped the Suzuki, they saw two person were sitting in the said Suzuki. They disclosed their names as Jameel Ahmed Khan and Noor Bacha. When these persons were interrogated Jameel Ahmed Khan turned out to be Sultan Zaib. It is also stated that the said two persons disclosed that they have kidnapped Sherdil and the said child is in the custody of Israil and his wife who were present in room No. 210 at Al-Makran Hotel, Lyari. The police then proceeded towards the hotel and conducted a raid and from there the abductee was recovered from the custody of Israil and his wife Parveen Akhtar. As per his deposition the record of the hotel was seized and he acted as a Mushir whereas according to the record he instructed the hotel Manager to produce the record, who after some days produced the same. His cross examination further reveals that apart from checking the said Suzuki high roof no other vehicle was checked.

11. Deposition of PW4 Tanveer Khan, who is a transport employee, reveals that he could not identify the accused Israil Khan and deposition of PW5 who is booking clerk reveals that on 24.07.07 at about Mugrib time 3 persons came to the workshop and inquired from him regarding booking for Mansehra, he also disclosed in his deposition that every day a number of people come to his workshop for booking purpose etc but how he recognized the accused persons Sultan Zaib, Noor Bacha and Israil instantly among the dummies during the identification parade caste doubt about his identification.

12. The deposition of Mr. Maqbool Ahmed, Judicial Magistrate posted at Central Karachi reveals that he admitted that the dummies remained the same and only the accused persons were changed. He also admitted that he had not arranged separate dummies for each accused. He also admitted that certain legal formalities required for the identification parade had not been complied with by him.

13. The deposition of PW-7, who is the father of the child, shows that when the complainant received the call from the accused person regarding kidnapping of the child he was in the workshop alongwith the complainant but why he did not talk to those persons and as to why Javed did not let him speak to the said kidnappers, is also not understandable. Moreover the complainant Javed has no where mentioned in his deposition that Taoos Rehman was with him when he was in the workshop. The deposition of Taoos Rehman is also strange wherein he has stated that he knew nothing about the FIR and it was Javed who lodged the FIR and it was the Javed who informed him about the recovery of his son. The deposition of PW8 Muhammad Babar I.O also reveals that the recording made by CPLC was not at all considered by him on the ground that the same was in the Pushtoo Language. He has also stated that except intercepting the alleged Suzuki high Roof bearing No. CK-1846, in which the accused Sultan Zaib and Noor Bacha were traveling, he did not intercept any other vehicle. The I.O has further stated that on the pointation of Sultan Zaib he made a raid at Al-Makran Hotel, from where the abductee was recovered but neither any hotel staff nor any private person was made Mushir. He also admitted that he has no idea that whether the person calling Javed was the same person arrested by him. Moreover, the record of the CPLC produced by him neither bears the signature, of any mobile company officer nor the official seal of CPLC. He has also admitted that at the time of raid register of the Hotel was not taken into custody but the manager was asked to produce the same, and he after some days produced the same. The record also reveals that no accused person had accepted his/her guilt before the Magistrate, rather they had denied the allegation that they had kidnapped the abductee. The report of I.O further reveals that there is no mark of either beating or signs of intoxication when the abductee was recovered whereas the deposition of the abductee shows that he had disclosed that he was beaten by the accused persons. The deposition made by the abductee is also not confidence inspiring which is reproduced as under:-

“I was tutored my statement outside the court which I was to give in this case before this court. I have come in this court with my father today. It is correct that I was informed by the uncle sitting in the office (Prosecution Branch) to say that accused sitting in the court had abducted him, pointing out them”.

14. The deposition of PW10 Muneer Ahmed, who was the General Manager of the hotel, also reveals that hand writing is different on the register and it does not contain the counter signature of the manager. He further stated that as per the entry made in the register the customer Jameel Ahmed Khan occupied the room on 21.08.2007 and left the same on 22.08.2007 at 8: pm after payment of rent at Rs. 500/-.

15. It is also seen from the record that the identification parade was not made in accordance with the law. The method and procedure of identification parade has been given under Article 22 of the Qanoon-e-Shahadat Ordinance 1984 and clause 26.32 of Police Rules 1934 which states as under:-

“22. Facts necessary to explain or introduce relevant facts. Facts necessary to explain or introduce a fact in issue of relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

Clause 26.32: Identification of suspects:-

The following rules shall be strictly observed in confronting arrested suspects with witnesses, who claim to be able to identify them.

d) 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 the witnesses who have been called up, and those who have not. If it is desired, through fear of revenge or for other adequate reasons, that witnesses shall not be seen by the suspects, arrangements shall be made for the former, when called up to stand behind a screen or be otherwise placed so that they can see clearly without being seen”.

16. Reading of the above two provisions would reveal that the primary object of holding investigation parade is to enable witnesses to identify the persons connected in the offence, who were not previously known to them. Though the identification parade is not a requirement of law but in order to apprehend culprits some time it becomes necessary in the cases where the witnesses have had the chance of having a glimpse of the accused. It is seen that the prosecution witnesses PWs 4 and 5 only had a fleeting glimpse of accused Sultan Zaib, Noor Bacha and Israil that too after Magrib time hence the possibility of erroneous identification could not be ruled out when admittedly the accused persons had never met with them previously. As per the deposition of PW5 who stated that everyday he meet so many people and is infallible remembering and identifying faces of strangers his identification of accused also raises a big question mark. In the cases where accused persons are total strangers to prosecution witnesses, recognition of accused persons has to be taken with considerable amount of caution and has to be scrutinized carefully. In the present case it is an admitted fact that PW4 could not identify the accused Israel. Hence we are of the considered view that in the instant case identification parade has not been made in accordance with the law. The court always draw a distinction between identification parade made in the cases where the witnesses had only fleeting glimpse of the accused who happened to be strangers and witnesses who had known the accused previously or had met them several occasions. In the cases falling in former condition proper identification parade fulfilling all the requirements are mandatory whereas in the later class of cases identification parade could be dispensed with. Reference in this regard may be made to the decision reported as The State V/s Farman Hussain reported in PLD 1995 SC 01. It is also a trite proposition of law that if any act has to be done in a particular manner then it should be done in that manner or should not be done at all.

17. It is also an admitted fact that the time of meeting of the accused with the PWs was very short as according to the PW5 the accused persons requested for visiting card on the pretext that they want to send their passengers to Mansehra and went away.

18. The deposition of the child is also not confidence inspiring as he has categorically stated in his deposition that “he was informed by the uncle sitting in the office of the Prosecution Branch to say that accused sitting in the court had abducted him”. In the present case also the deposition of the child clearly stipulates that he admitted that he was not only tutored but was also asked to say that the persons sitting in the court had abducted him. Hence in view of this statement of the child his deposition has become highly doubtful. It is also a well settled proposition of law that while examining a child witness great care and caution is to be taken. In the decision reported as the State V/s Farman Hussain (PLD 1995 SC 1) the Hon’ble Apex Court while dilating upon the evidence of child witness has observed as under:-

“Evidence of child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated as rule of prudence. Great care is to be taken that in the evidence of child element of coaching is not involved. Evidence of child came up for examination before Division Bench of the High Court in the case of Amir Khan and others v. The State PLD 1985 Lah. 18 in which after consideration of the relevant case-law on the subject, Abdul Shakurul Salam, J. (as he then was) as author of the judgment observed that “children are a most untrustworthy class of witnesses, for, when the tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influences by fear of punishment, by hope of reward and the desire of notoriety. In any case the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborate by some evidence on the record”.

19. It is also a well settled proposition of law that if a legal infirmity creating reasonable doubt in fulfilling the requirements of law is created the whole case becomes doubtful and benefit of the same is to be given to the accused. Attention in this regard may be made to the decision of the Hon’ble Supreme Court in the case of Fahim Ahmed Farooqi V/s The State 2008 SCMR 1572 wherein the Hon’ble Apex Court observed as under:-

“ It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt”.

20. We, therefore, in the light of the above facts and circumstances of the case have come to the conclusion that the cases made out by the prosecution against the accused persons are full of doubt and the benefit in this regard should go to them. We are therefore of the considered opinion that the order of the Trial Court convicting the appellants can not be sustained. We therefore, allow the appeals set aside the impugned order. The appellants are directed to be released forthwith, if not wanted and required in any other case.

21. These appeals are disposed off in the above manner.

JUDGE

Karachi.

Dated: April, 2011.