2005 PLP 1533 (YLR)

MUHAMMAD AFZAL SOOMRO, J.

Appellant, Muhammad Uzair, has challenged the judgment, dated 8-1-2004 passed by the learned 1st Special Judge for Suppression of Terrorist Activities Court, Karachi in Special Case No.10 of 2001 (State v. Muhammad Uziar and others) whereby the trial Court convicted the appellant and sentenced him to suffer imprisonment for life. The appellant was extended benefit of section 382-B, Cr.P.C.

2. The brief facts giving rise to the prosecution case are that on 6-11-2000 Duty Officer namely Hanif Ali Shah registered F.I.R. bearing No.190 of 2000 at Police Station, Soldier Bazar under sections 3/4 of Explosive Substances Act read with sections 324/302/427, P.P.C., on the basis of statement, recorded under section 154, Cr.P.C. by S.H.O./Inspector, Muhammad Ehsan Malik, disclosing that while he was busy in patrolling the area along with his subordinates, at about 1240 hours he reached at 'Numaish Chowrangi'. M.A. Jinnah Road and heard about a powerful blast. He immediately rushed towards there and noticed a smoke/flame coming from the office of Nawa-e-Waqt Building. It was further disclosed that the complainant with the help of his subordinate staff and others evacuated six injured persons including one dead-body (being in different pieces of human body) to the hospital. According to the complainant since the said blast occurred for using explosive material causing damage to human lives and properties, the offence fell under sections 3/4, Explosive Substances Act read with sections 302/324/427, P.P.C. Accordingly, the F.I.R. as above, was registered.

3. After usual investigation, police submitted challan in question in which present appellant Muhammad Uzair Qureshi was shown arrested while co-accused persons namely Kazim Raza, Javed Ahmed Khan, Javed Turk alias T.J. and Mujbeen Abbas alias Mujeeb were shown absconding.

4. The trial Court, after bifurcating the case of absconding accused, framed the charge against the appellant to which he pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined P.W.1. Muhammad Azam Khan (Chowkidar in Daily Nawa-e-Waqt) as Exh.3, who produced the sketch of the lady as Exh.3/A and Medico-legal Certificate as Exh.3/8, P.W.2 Rehmatullah as Exh.4, who produced Mashirnma of pointation of place as Exh.4/B, P.W.3 SIP-Qamar Zaman as Exh.5, who produced Mashirnama of recovery as Exh.5/A, P.W.4 HC-Ashiq Hussain as Exh.6, who produced Mashirnama of arrest and recovery as Exh.6/A, P.W.5 Sabir Khan (taxi driver) as Exh.7, P.W.6 SIP- S. Hassan Haider Zaidi as Exh.8, who produced Medico-legal Officer as Exh.8/A, P.W.7- S. Mansab Ali Shah as Exh.9, who produced F.I.R. as Exh. 9/A, P.W.8-Muhammad Ahsan Malik as Exh.10, who produced statement under section 154, Cr.P.C. Exh. 10/A, Mashirnama of place of occurrence as Exh.10/B and memo. of condition of injured person as Exh.10/C, P.W.9 S.-I.-Shahid Ali as Exh.11, who produced inquest report of the deceased Najam Haider as Exh.11/A and a letter as Exh.11/B. Inspection report of dead-body as Exh.11/C, inquest report of unknown dead-body as Exh.11/D, inquest report of deceased Ziaul Haque as Exh.11/E and inspection report of dead-body as Exh.11/G, P.W.10 Muhammad Yaqoob as Exh.12, P.W.11 Muhammad Farid as Exh.13, P.W.12 Jamil Ahmed Ansari as Exh.

14. P.W.13 Syed Amir Hussain examined as Exh.18 who produced the inquest report of Sajid Mahmood and inspection report of dead-body as Exh.18/A and 18/B. P.W.14 Zulifqar Ali Khan was examined as Exh. 20, P.W.15 Parvez Qadir Memon (Judicial Magistrate) as Exh.21, who produced confessional statement and remand letter as Exhs. 21/A to 21/C, P.W.16 Dr. Nisar Ali Shah as Exh.24, who produced Medico-legal Certificate of Sajid Muhammad, Khuda Bux Balouch and Jamil Ahmed Ansari as Exhs. 24/A to 24/C, P.W.17 Abid Hussain as Exh. 28, P.W.18 Dr. Farida as Exh. 29 who produced post-mortem report as Exh.29/A, P.W.19 S.I. Muhammad Ashraf as Exh.30, who produced Transfer Order, MLC Reports, inquest report, Roznamcha entry, Chemical Examiner report and challan as Exhs.30/A to 30/G. Learned counsel appearing on behalf of the prosecution filed statement giving up witnesses namely S.-I.-Inayat-ullah Marwat, A.S.-I. Ghulam Asghar and Salik Majeed, Muhammad Ishaque, Dr. Muveez Siddiqui which are at Exhs.7, 15 and 16, 19,

23. SI- Muhammad Ashraf Gujar was examined as Court witness at Exh.17 who produced unserved summons of P.W. Sabir Khan and his report as Exh.17/A to 17/C. Process Server as Exh.22, who produced unserved summons of P.Ws.-Fakhre Abbas, Muhammad Yaqoob, Khuda Bux and Syed Muhammad Zakir Kazmi as Exhs.22/A to 22/D.

6. After close of prosecution side, the statements of appellant under section 342, Cr.P.C., was recorded as Exh.32 who denied the allegation of charge against him and further filed an application and letter as Exhs. 32/A and 32/B wherein he had pleaded that he is innocent and had falsely been implicated by the police. The appellant in his defence examined D.W. Mst. Mehrab as Exh.34, who produced applications as Exhs.34/A and 32/B and D.W.-Abdul Jabbar as Exh.25.

7. P.W.1 Muhammad Azam Khan, deposed in his statement that he was working as watchman in the office of Daily Nawa-e-Waqt, Karachi since last 12 years. On 6-11-2000 he was on his duty as Watchman when at about 12-30 p.m. one lady came in the office for the purpose of booking an 'Add'. At that time Najmul Hassan, Sajid and Ziaul Hassan were present in the Booking Office where a lady was also sitting. However, Najmul Hassan told him to bring tea and as soon as he left the office for having tea, he heard about a blast. Thereafter, he went unconscious he found himself in Civil Hospital where he heard about the death of Najmul Hassan and Ziaul Haque in the said blast. He further stated that on 8-11-2000 police recorded his statement at Hospital and also prepared the sketch of the lady. He was not cross-examined.

8. P.W.2, Rehmatullah, deposed in his statement that on 3rd March, 2001 while at about 9-00 or 8-30 a.m. he was standing near the Signal of Rimpa Plaza while selling pan, a Police Mobile came there and 4-5 Police Personnel also emerged and made some inquiries from 3-4 persons. It is further deposed that thereafter the said Police Personnel asked him to accompany the place where some accused intended to show something. After some resistance, he accompanied them, to Rimpa Plaza situated at M.A. Jinnah Road and as soon as they reached near stairs, one person, already handcuffed, led them to fourth floor where he demanded key from police and opened Room No.5 disclosing that it was the same place where the lady along with others arranged meeting and planned for bomb blast in the office of Nawa-e-Waqt. The police prepared the Mashirnama of pointation of place where the meeting was held by the accused for bomb blast as Exh.4/A. In cross-examination he admitted that though he sells the prepared pan in Tray but there is no sign of pan or katha in his hand. He admitted that though he had got NIC but did not bring the same so that his correct identification could be ascertained. He also admitted that it is a fact that nothing is mentioned in his statement recorded by the police in respect of selling pan. He further admitted that he was called at the CIA Centre after one month of pointation.

9. P.W.3, Qamar Zaman, deposed in his statement that he because of his posting as Assistant Sub-Inspector at Police Station, Soldier Bazar, was performing his duty at Picket near Nawa-e-Waqt Office, M.A. Jinnah Road, Karachi on the eventful day and at about 3-00 p.m. Inspector Malik Ehsan came there for the removal of the material, spread over there, on account of the said bomb blast. During the removal of the garbage two pieces of violet hair of human body, photostat copy of one identity card of Najmul Hassan and driving licence of Ziaul Haq, two wrist watches, broken telephone set and a white circuit were recovered. The Inspector showed him all those items and prepared Mashirnama of recovery in his presence. He was not cross-examined.

10. The next witness P.W.4. Constable Ashique Hussain, deposed that, being posted at CIA Centre Saddar, on 2nd March, 2001 while he along with S.-I., Gujar and A.S.-I. Inayatullah Marwat was on patrolling and reached at Water Pump Federal 'B' Area one person met S.-I. Gujar who disclosed that accused, wanted in case of bomb blast at Nawa-e-Waqt Building namely Uzair Qureshi (appellant herein) was present at Gharibabad Chowrangi. Accordingly, they reached there and on the pointation of informer the accused was apprehended. S.I. Gujar, after searching his person, arrested the apprehended accused and prepared Mashirnama of arrest and recovery of Rs.200 being found in the pursue of the accused. In cross-examinatoin he denied a suggestion that the appellant was in custody of S.-I. Gujar and Zafar Nazeer since 21-1-2000 at CIA Centre Saddar. He also denied a suggestion that he had seen the appellant at CIA Centre from 21-1-2001 till 2nd March, 2001 for about 50 times.

11. P.W.5, Sabir Khan, a Taxi Driver, deposed that on 3-11-2000 while he as present at Lalookhait Bus Stop along with his taxi, four parsons emerged there including a lady as she hired his taxi for Rimpa Plaza and then to New Karachi. Four persons occupied the back seat of the taxi while the lady chose to sit on the front seat and thereafter they proceeded towards Rimpa Plaza where he was asked to wait. He further disclosed that at the time of leaving taxi, the passengers mentioned their destination at Rimpa Plaza Room No.5, fourth floor where he went after lapse of 30-45 minutes. He found lady sitting outside the room and other persons inside the room. They relieved him by giving Rs.100. However, during the month of January, 2001, he saw photograph of one of the passengers, involved in the present case, whom he had left in the Rimpa Plaza. He voluntarily went to CIA Centre Saddar on 9th January, 2001 and arranged recording of his statement whereby he narrated the whole story.

12. P.W.6, S.I., Hassan Haider Zaidi, deposed only to the extent that on the eventful day he reached Jinnah Hospital where he handed over letter to MLO in respect of injured Nazir which he himself issued.

13. P.W.7, S.I., Mansab Ali, deposed only to the extent that he registered the F.I.R. bearing No.190 of 2000 on the basis of 154, Cr.P.C. statement of Inspector, Malik Ahsan, S.H.O.

14. P.W.8, Muhammad Ashan Malik, S.H.O. Soldier Bazar Police Station, deposed that on the eventful day while he was patrolling along with his subordinate staff in the area and when reached Old Numaish Chowrangi at about 12-40 p.m, he heard a bomb blast explosion. He immediately reached the place i.e. office of Nawa-e-Waqt where lot of persons had gathered and flame as well as smoke was visible notified. Some persons, whose names later on emerged on surface as Sajid, Khuda Bux, Muhammad Yaqoob, Jamil and Azam Khan, were lying injured. On reaching hospital his statement under section 154, Cr.P.C., was recorded which he sent to Police Station through A.S.-I., Asghar for lodging the F.I.R. against unknown persons. He also prepared Mashirnama of place of incident on the pointation of Abid Hussain, Chowkidar. He, thereafter, collected pieces of human body seemed to be of woman. On 17-11-2000 he sent a letter to DSP Special Branch mentioning therein the details of the recoveries and condition of the injured person. He further deposed that though he could not arrest any person being involved in this crime but he was sure that bomb was blasted by a lady accused. In cross-examination he admitted that though the investigation remained in progress for about six months but neither he was aware of the arrest of the appellant nor the appellant was produced before him at the Police Station.

15. The next witness P.W.9, Shahid Ali, deposed to the extent that on the instructions of S.H.O. he went to the Hospital where he, after seeking permission from doctor, prepared inquest report of deceased Najam Haider and Ziaul Haq. He also requested MLO to analyse the pieces of human body collected from the spot who, after examination, opined that those pieces were of the body of female. He, accordingly, prepared Mashirnama and inquest report. He was not cross-examined.

16. P.W.10, Muhammad Yaqoob, P.W.11, Muhammad Fareed, P.W.12, Jamil Ahmed Ansari, P.W.13, Syed Amin Hussain, and P.W.14, Zulifqar Ali Khan, did not depose any material fact except two of them namely P.Ws. 10 and 12, disclosing their presence at the time of bomb blast while they were passing through on their motorcycles/scooters whereas P.Ws.11, 13 and 14, employees of Nawa-e-Waqt deposed that upon the receipt of information about the bomb blast they immediately proceeded from sub-office of Nawa-e-Waqt at Defence Housing Authority and saw the above-stated injured persons and along with them went to hospitals. All of them were not cross-examined.

17. P.W.15, Pervez Qadir Memon, Judicial Magistrate, has deposed that while on 3-3-2001, he was posted as Incharge Judicial Magistrate Court No.1, East Karachi, S.I. Muhammad Ashraf Gujar of P.S. Soldier Bazar produced the appellant for recording his confessional statement under section 164, Cr.P.C. which was recorded in his Chamber when none of the staff members or police personnel was present after informing the appellant that irrespective of recording confessional statement, he would be remanded to judicial custody but it was not done. It was further deposed that the appellant was asked to explain about any undue pressure, influence, enticement or torture by the police or from any corner. In cross-examination, the learned Judicial Magistrate admitted that ink and pen used for his signature was altogether different from the written material. However, he asserted that writing as well as his signature on the memo. of confessional statement are same. He also admitted that the custody of the appellant was handed over to I.O. after recording the statement at about 3-00 p.m. He also admitted that whole confessional statement was not in his handwriting but it was written on pro forma. He also admitted that though the appellant informed that he is highly educated but his statement was recorded in Urdu language whereas the witness recorded his findings, questions and answers in English. He denied suggestions that the appellant remained in his Chamber for one minute when his signature was obtained on confessional statement, who further deposed that he (the appellant) remained in custody of CIA for last, 40 days and whatever is written on page No.3 of the confessional statement in Urdu, was provided by the I.O. on a piece of paper and thereafter was reduced into writing as the statement of appellant in Urdu.

18. P.Ws. 16 and 18, Dr. Nisar Ali Shah and Dr. Fareeda, conducted post-mortem of Sajid Mehmood and unknown lady, whose body was found in pieces and also examined P.W. Jamil Ahmed Ansari, P.W.18, Abid Hussain, who was working as Printer in the office of daily Nawa-e-Waqt and deposed the same facts as narrated above.

19. The appellant in his statement recorded under section 342, Cr.P.C. denied all the prosecution allegations as being false and fabricated. He further stated that on 21-1-2001 at about 11-15 a.m., while he along with his wife was passing from Water Pump at Federal 'B Area, some unidentified persons in civil uniforms stopped him who without expressing any thing arrested him and took to CIA Centre Saddar. He further stated in his statement that Investigating Officer Ashraf Gujar took his photograph and after shutting his eyes, hanged him by neck. Before that he was tortured on account of which his both shoulders were dislocated and thereafter he went unconscious. He also disclosed that he was shifted to some unknown destination where he was detained for about 40 days and during that period he was badly tortured physically and mentally. According to him, after hectic efforts his wife and nephew searched him and found at C.I.A. Centre Saddar. Thereafter, his both relatives moved applications to the higher Authorities in writing regarding his illegal detention on the part of I.O. Ashraf Gujar. According to him, he was produced before Criminal Record Officer on 3-3-2001 when he had beard of 40 days whereas his photograph which was published in newspaper daily Nawa-e-Waqt and Express, dated 5-3-2001 showed him recently shaved. He further disclosed that after 40 days of illegal detention he was produced before a Magistrate and due to agony, mental torture and undue pressure of police officials I.O. Ashraf Gujar dictated his 164, Cr.P.C. statement to the clerk of the concerned Court namely Hanif and the same was subsequently treated as his confessional statement. He emphatically argued that his 7-8 signatures were obtained on blank papers at the bottom. He narrated whole story of his illegal detention and maltreatment on the part of I.O. at CIA Centre. News of his illegal detention was also published in newspaper daily JANBAZ, dated 23-1-2001 and on the same day he was remanded to judicial custody by the concerned Magistrate. He lastly argued that he is innocent and has, falsely, been involved in this case on account of his political affiliation with Muttehda Qaumi Movement (MQM). He also examined himself under section 340(2), Cr.P.C., in which he deposed the same fact. In his cross-examination, he denied a suggestion that his confessional statement was recorded by Magistrate.

20. The appellant also examined two witnesses in his defence namely Mehraj, his wife and Abdul Jabbar as D.Ws.1 and

2. Both of them have supported the version advanced by the appellant in his defence.

21. We have heard the learned counsel appearing for the appellant and learned Asstt. Advocate-General, Sindh.

22. Learned counsel for the appellant, Mr. Azizullah K. Shaikh, has contended as follows:-- (i) That the impugned judgment delivered by the learned trial Judge is incomplete, wrong and liable to be set aside inasmuch as neither he has mentioned the section nor specifically gave finding that under which section of which Act the appellant is convicted; (ii) That the learned trial Judge failed to appreciate defence evidence and he has not given importance to the fact that appellant was arrested much after incident; (iii) That the so-called judicial confession is a result of torture, mental agony, threats and sleepless nights which was not even given by the appellant voluntarily and the same being retracted should have been rejected. (iv) That though the appellant produced copies of so many complaints, dated 21-1-2001 or thereabout, sent on his behalf by his relatives, to show his picking up by police and keeping in illegal detention during which period tortured and maltreated but learned trial Judge failed to appreciate the defence version; (v) That the whole evidence of P.W.5, being important witness of prosecution, should have been rejected for the simple reason that after recording his examination-in-chief he disappeared for recording cross-examination. Moreso, when the said witness is alive, appeared in the trial Court, deposed on Oath and then disappeared for having recorded his cross-examination, his deposition cannot be relied upon being unreliable piece of evidence. Further corroboration being sought from the said piece of evidence have no legal value, the same being incomplete for avoiding cross-examination, regarding so-called judicial confession. (vi) That the evidence regarding pointation of appellant being in custody is inadmissible under the Qanun-e-Shahadat, 1984 as the said place was already known to the police; (vii) That the case against the appellant being false, he has been, implicated due to mala fide on the part of police as well as his affiliation with MQM; (viii) That the F.I.R. though promptly lodged is not by itself sufficient to furnish corroboration from an independent source; (ix) That the prosecution relied upon the confessional statement of the appellant, recorded under section 164, Cr.P.C., that too after 40 days of the arrest of the appellant which fact has been supported by the applications sent by his relatives to the higher Authorities. Such statement was recorded under pressure and after maltreatment inasmuch as the appellant was detained by CIA Police w.e.f. 21-1-2001. This shows that the confessional statement of the appellant was not voluntarily made. (x) That the prosecution case is based on no evidence inasmuch as the same is neither supported nor corroborated from any other prosecution witness or from an independent source.

23. On the other hand, learned counsel appearing on behalf of the State has supported the impugned judgment on the ground that there is no enmity, ill-will, bad blood, or mala fide alleged on the part of prosecution/complainant party.

24. We have considered the submissions of both the learned counsel for respective parties and perused the record.

25. The perusal of record reveals that the F.I.R. though promptly lodged is not by itself sufficient to furnish corroboration from an independent source. Although P.W. 5, Sabir Khan (Taxi Driver) deposed that the appellant being one out of four persons, hired taxi for travelling from Lalookhait to Rimpa Plaza where in Room No.5 at 4th floor, according to him, a meeting took place but his examination-in-chief cannot be relied upon for the simple reason that the said witness disappeared thereafter and did not make himself available for cross-examination though efforts were made to procure the attendance of this witness. We are surprised that how the learned trial Judge has made the following observations with regard to this witness:-- "No doubt this witness did not come for cross but his statement under section 164, Cr.P.C. available on record at Ex.7/A, prima facie shows that this witness has corroborated the version of the prosecution as such his evidence can be safely taken into consideration in favour of the prosecution, prima facie shows involvement of the accused in a case of abetment."

26. Interpretation of Article 133 of Qanun-e-Shahadat, 1984 leads us to hold that the evidence of a witness cannot be relied upon unless he is cross-examined which is not the case here. Moreover, evidence of pointation regarding place of occurrence by appellant in police custody from where nothing is secured which also is inadmissible in law as it was already known to police.

27. In view of the above discussion that since F.I.R. has lost its sanctity in view of inadmissibility of the evidence of main witness P.W.5 who did not appear for his cross-examination, the ocular testimony furnished by the interested witnesses is not corroborated from any independent piece of evidence. The entire prosecution case suffers from infirmities, improbabilities, weaknesses and material contradictions, the whole case being full of doubts is shrouded in mystery and there being no evidence connecting the accused Muhammad Uzair with commission of crime.

28. In the circumstances, we are of the considered view that the prosecution has not been able to prove its case beyond any reasonable doubt and in the circumstances it is a case of clean acquittal. We find no cavil on the above proposition of law.

29. By our short order, dated 27th July, 2004 we have acquitted the appellant of the charge and ordered for his release forthwith if not required in any other case and these are the reasons for the same. Cr. Appeal No. 51 of 2004 stands disposed of. H.B.T./M-211/K Appeal allowed.