1996 P Cr (PLP)

Appellant Muhammad Rafique son of Fazal Bux was sent up by Police Station Soldier Bazar for trial for offence under section 20, E.H.O. read with section 392/297/34, P.P.C. The VIIIth Additional Sessions Judge (Hudood Court), Karachi (East), vide its judgment, dated 2nd May, 1995, found him guilty and sentenced under section 392, P.P.C. to 5 years' R.I. with a fine of Rs.5,000 or in default R.I. for one year. He was however, given benefit of section 382-B, Cr.P.C., convict has appealed. Prosecution story in brief as disclosed in complaint/F.I.R., dated 24-12-1993 lodged by Mujahid Abbas Butt, complainant as Exh.5/21, was to the effect that he was a taxi driver of yellow cab bearing No.PG-8870. That on 22-12-1993, when he was waiting alongwith his yellow cab taxi at Lee Market, two persons engaged him for proceeding towards Pakistan Quarters. When they reached near the destination one passenger sitting on the front seat pointed out a pistol at him and also asked him to stop the taxi and the second passenger sitting on the rear seat also forced the complainant out of his taxi and then both drove it away. Subsequently, the complainant went and lodged the report at police station. P.W.5 Muhammad Rafique, A.S.I. recorded the F.I.R. as Exh.5/21, dated 24-12-1993 and visited the Wardat and prepared its memo. as Exh.6/22. Thereafter, A.S.I. Muhammad Rafique handed over the investigation to S.I.P. Nazar Muhammad. That P.W.4/28 Nazar Muhammad got information that accused/appellant Muhammad Rafique was arrested by A.S.I. Muhammad Saleem of Police Station Eid Gah alongwith yellow cab taxi on 29-12-1993 and accused was handed over to him for investigation by the Police Station Eid Gah. That on 3-1-1994 accused./appellant Muhammad Rafique was sent for identification parade before A.C.M. X, District East Karachi through complainant. Prosecution in support of its case produced seven witnesses in all. P.W.1, Mujahid Abbas Butt had got the case registered. He was a tax driver. He identified the appellant in identification parade before A.C.M. X, Karachi (East). P.W.2/23 Muhammad Ali is the Mashir of Wardat and he has supported the version of the complainant that he accompanied him to the police station for registering the F.I.R. and police visited the Wardat and made him Mashir of the same. P.W.3/24 P.C. Muhammad Farooque is the Mashir of arrest and recovery of the taxi dated 19-12-1993. He has deposed that on 29-12-1993 he was on patrol duty with A.S.I. Muhammad Saleem at about 2-30/3-00 a.m. while checking the vehicles they arrested the appellant with yellow cab taxi as he could not produce its papers. P.W.4/28 Nazar Muhammad, A.S.I. is the Investigating Officer has deposed that on 24-12-1993 he was S.I.P., Soldier Bazar and he was deputed to conduct the investigation of this case. That on 29-12-1993 as appellant Muhammad Rafique was arrested by A.S.I. Muhammad Saleem of Police Station Eid Gah so the custody of the appellant was handed over to P.W. Nazar Muhammad on that day and he got the appellant identified in the identification payade before a Magistrate on 3-1-1994 and had challaned the appellant in the trial Court. P.W.5/38 Muhammad Rafique, A.S.I. recorded the F.I.R. as Exh.5/21 and prepared the memo. of the Wardat as Exh.6/22. P.W.6/50 Muhammad Afzal, Clerk of A.C.M. X, District East Karachi, who identified the signature of the learned A.C.M. as Magistrate could not be examined in trial Court due to his transfer from there. At the conclusion of the prosecution evidence appellant was examined under section 342, Cr.P.C. as Exh.24/43 where he refuted the prosecution allegations and pleaded innocence. He appeared in his defence on oath under section 340(2), Cr.P.C. as Exh.25/45. He also examined two defence witnesses D.W.2/55 Muhammad Hussain and D.W.3/57 Umed Ali. It was contended by Mr. Shoukat Hussain Zubedi, learned counsel for the appellant, that the case against the appellant was not proved at all. He submitted that no importance can be attached to the identification parade which was held after six (6) days of the arrest of the appellant and about 11 days after the incident. That police showed the appellant to the complainant and same was admitted by the complainant in his deposition. Learned counsel has also argued that the ingredients of section 392, P.P.C. are not in the prosecution case to connect the appellant with the crime. Learned counsel has also contended that appellant has given plausible explanation in his statement under section 340(2), Cr.P.C. as well as by his defence witnesses Muhammad Hussain and Umed Ali Learned counsel has further argued that appellant was allegedly arrested by P.W. Muhammad Saleem, A.S.I. alongwith yellow-cab taxi on 29-12-1993 but same witness in the Court has denied at that he has no knowledge of this incident is the case. That learned counsel has also submitted that no role was ascribed to the appellant by the sole eye-witness/complainant Mujahid Abbas Butt, who allegedly identified him in the identification parade. In absence of the same conviction could not be sustained. Learned counsel has relied upon the case of Nadeem-ul-Haq and others v. The State reported in 1985 SCMR 510, secondly learned counsel placed reliance on the case of Khadim Hussain v. The State reported in 1985 SCMR 721 and on the case of Shamshir Ali v. The State reported in 1994 PCr.LJ 1309. Learned counsel has lastly relied on the case of Ghulam Rasool and others v. The State reported in 1988 SCMR

557. Contentions were opposed by Ms. Nasreen Zafar learned counsel for the State. I have heard the learned counsel, and gone through the evidence with their assistance. The case hinges on the testimony of Mujahid Hussain Butt, complainant the sole eye-witness of the incident and P.W. A.S.I. Muhammad Saleem of Police Station Eid Gah who arrested the appellant alongwith the stolen taxi. I have carefully gone through the statements of both the witnesses. Complainant Mujahid Abbas Butt P.W.1 had got case registered. In cross examination, he however, admitted that he could not identify the accused who robbed his taxi. In this regard, complainant has admitted in his cross examination as under:-- "I cannot identify whether accused present in Court is the same or otherwise as the incident took place suddenly and due to depression and tension I could not identify the accused but police had informed me that the taxi had been recovered from the present accused." Complainant has also admitted in his cross-examination as under:-- "It is correct that Eid Gah Police has shown me the accused at Police Station Eid Gah, after about seven days of the incident. I do not remember whether present accused has snatched taxi from me as I could not see the face of other person who was sitting on the- rear seat. " It is pertinent to note that P.W.4 A.S.I. Nazar Muhammad, the Investigating Officer who recovered the taxi and arrested the appellant and got his identification before Magistrate, has very boldly admitted in his cross examination which is as under:-- "It is correct to suggest that due to pressure of high officers and to show efficiency and disposal of the case, I have falsely implicated the accused in this case." Therefore, there is nothing on the record to indicate as to who was the one who robbed the taxi from the complainant. For what has been discussed above, it is clear that no reliance on the statement of complainant Mujahid Abbas Butt can be placed in view of concession made by him. Even otherwise this witness though identified the appellant yet did not ascribe him any overt act. It is not known whether appellant was sitting on the front seat of the taxi or was sitting on the rear seat of the alleged yellow cab taxi. As has been held in the case of Khadim Hussain v. The State 1985 SCMR 721, Ghulam Rasool and 3 others v. The State 1988 SCMR 557 and Shamsher Ali v. The State 1994 PCr.LJ 1309, simple identification of accused in delayed identification parade would not be material unless the witnesses inform positively the role of the person so identified. Respectfully relying upon the judgments quoted above, I hold that the case of the prosecution was not free from doubt. Therefore, I accept the appeal and set aside the conviction and sentence of the appellant. By my short order, dated 17-12-1995 I had allowed this appeal and these are the reasons for the same. Appeal allowed N.H.Q./M-16/K Appeal accepted.