P L D 1995 Karachi 16 (PLP)

We have heard the learned counsel for appellants in Criminal Appeal and two respondents in the Acquittal Appeal and also Mr. Sarwar Khan, learned Assistant Advocate-General for State. Our findings are as under: The main point which requires consideration in the present case is as to whether all the four accused had abducted Abu-Muhammad Ismail on the given date and time from near Bungalow No.176, Katchi Memon Society, Karachi being duly armed and released the abductee after obtaining ransom amount of Rs.5,50,000 from the complainant who is the son of the abductee? At the very outset the learned counsel for the appellants have pointed out that the police investigation is based on the material obviously supplied by the Law Enforcing Agency. The learned counsel have referred to the case of prosecution which shows that the investigation was undertaken by the Police Authorities after recording the F.I.R. on 2-11-1992 and the arrest of the present appellants is shown to have been made on 5-11-1992 at 18-00 hours. The memo. of arrest is Exh.26 which shows that all the four accused were arrested by Anwar Hussain Shah, the S.H.O. in connection with the case Crime No.323/92 under section 365-A/34, P.P,C. from Plot No.K-7, Rafae Aam Society, Malir Halt, Karachi and recovered the ransom amount alongwith weapons from them as mentioned in the said Mashirnama. As against this the learned counsel have referred to the Daily Jang and Nawa-i-Waqt, Karachi of 6-11-1992 which clearly shows that the four accused whose names also find place were arrested by the Law Enforcing Agency alongwith a fifth co-accused. The learned counsel has argued that every step including the arrest of the accused were taken by the Law Enforcing Agency as is stated in this news item which is based on press release of I.S.P.R. From this the learned counsel has submitted the fact that the arrest was made by the, police on 5-11-1992 as shown in the Mashirnama of arrest is not correct. They have lurther pointed out that both the Mashirs Muhammad Shaft and Muhammad Rafrq have not supported the case of the prosecution. The evidence of Mashir Muhammad Shafi is at Exh. 24 wherein he states that he had gone to Police Station Tipu Sultan to congratulate S.H.O. Anwar Hussain Shah on his such appointment; and that there he was asked to sign one paper. He also states that accused were shown to him in Police Lock-up of Police Station Ferozabad, where he was taken by one of the police officers and that nothing was recovered from the accused in his perusal, Similarly, the other Mashir Muhammad Rafiq in his deposition at Exh.28 stales that he had gone to Police Station Tipu Sultan to see Head Constable Nazar, who is his friend, where he was told by the said Head Constable that the said Muliammad Rafiq was witness in some cases and he was asked to sign Mashirnama Exh.25 at the police station. He further states that he also signed Exh.26 at the police station. He further states that he, had not witnessed any recovery or handing over of the cash; and that he was shown the four accused by the police at Police Station Ferozabad vu 10-9-1992. The learned counsel, from this, have pointed out that in view of the .above evidence the whole case against the present appellants and co-accused stands belied. The learned counsel have also referred to a document which is placed as Exh. "Mark `A'. This is a memo. `headed' Police Station Tipu Sultan, Karachi". This memo. reads as under:--; .s 4_ ' "EXH.NO. `MARK A' Page No.269 . Police Station, Tipu Sultan, Karachi. , Respected Sir, It is submitted that. Case No. 323/92 offence under section 365-A/34, P.P.C. is registered at the above police station, prior to this as per directions of Army Authorities, Case No.323/92 offence under section 14/1, E.H.O. was registered for theft of cycle, as after registering F.I.R. of abduction for ransom it was ordered by the Army officials to seal the F.I.R. due to which the case of the theft of cycle was registered. (PARAGRAPH NOT IN FOCUS) ACCUSED PERSONS. (1) Kamran Raees son of Raees-ul-Hassan involved in case Crime No.323/92, offence under section (words not in focus), P.S. Malir City. (2) (word illegible) involved in case Crime No.325/92, P.S. Tipu Sultan 229/92 offence under section 13/D, Arms Ordinance. (3) Muhammad Junaid Iqbal son of Muhammad Iqbal involved in Case No.323/92, P.S. Tipu Sultan 227/92 offence under section 13/D, Arms Ordinance, P.S. Gizri. (4) Abdul Rasheed son of Bakhsha, involved in Case Crime No.323/92y P.S.Tipu Sultan Case Crime No.226/92 offence under section 13/hy P.S. Malir City. Report is submitted." This memo. clearly shows that first the F.I.R. No.323/92 was recorded under section 14, Enforcement of Hudood Ordinance for the theft of a cycle under the directions of the Army Authorities. The said F.I.R. was sealed and the . present F.I.R. was recorded. We had sent for the original Book under section 154, Cr.P.C. from the police station and examined the same. The book is freshly bounded and first 2/3 pages show that the paper is quite fresh as compared to the remaining sheets and also the ink with which these F.I.Rs. were written is quite fresh as against the ink used in writing the remaining .' F.I.Rs. which is quite old and slightly faded. The learned counsel for the tile recovery of weapons at least, was not established against the accused. Since this very Mashirnama (Exh.26) has not been relied upon by the same trial court in cases under Arms Ordinance with regard to recovery, how could the same be relied on for the purposes of this case. This obviously is a tainted piece of evidence and cannot form the basis for conviction unless supported by any other independent corroborative evidence. It may also be observed that according to the prosecution case as siaied by complainant Muhammad Saeed in-his evidence is that he had gone to pay the ransom amount of Rs.5,50,000 for the release of his father. He states that at about 10-(0 or 10-3U ode had reached the Star Gate where the police had met him and they verified the cash in his possession which was in a black shopping bag and thereafter he went towards Jinnah Terminal, the appointed place where he had to pay the amount. In the cross-examination he states that he was informed by the police to reach near Star Gate; and that the document about the cash was prepared at the Star Gate by the police when this witness showed them the cash amount and the signature of this witness was also obtained on that document. He further states in his cross-examination that at the Star Gate he found only one police person who met him standing there; and that he had not seen any vehicle. He also states that he had shown the cash to S.H.O. Anwar Hussain Shah who had earlier on 2-11-1992 recorded his statement. This evidence of the, witness clearly shows that he had gone to pay the amount and A per the, pre-arranged plan with the police he first reached Star Gate where only one policeman i.e. S.H.O. Anwar Hussain Shah was present and he made the documents and obtained signatures of the said witness Muhammad Saeed. As against this the evidence of S.H.O. Anwar Hussain Shah is that he had met the witness Muhammad Saeed at Star Gate who showed him the cash which he counted in the presence of Muhammad Shafi and Muhammad Rafiq, -the two Mashirs and prepared the memo. Exh.25. Now these two Mashirs Muhammad Shafi and Muhammad Rafiq state that their signatures have been obtained at the police station which fact also corroborates the deposition of P.W. Muhammad Saeed to this extent. However, according to P.W. Muhammad Saeed he had also signed the memo. Exh.25 but the same does not bear his signatures. From the above discussion, it may also be observed that even this memo. Exh.25 is not proved. There is another point which requires consideration and that is why the S.H.O. who had examined the cash and handed over the same to P.W. Muhammad Saeed for onward payment to accused did not note the number of the currency notes or if that was too much for him then he should have at least made some marks of identification or his initial on the said currency notes. In the. absence of any such marks or identification, how it can be said that it were the same currency notes as alleged to have been recovered from the accused as per memo. Exh.25. Now we take up the case of the prosecution with regard to identification of the accused. The identification parade was supervised by Additional City Magistrate Mr. Lekh Raj Rathi who has been examined at Exh.3 as the first witness of the prosecution. He states that on 5-11-1992 he was posted as A.C.M. No.VII, Karachi (East); and that on that date a request was made to him by S.H.O. Police, Station Tipu Sultan for holding identification parade test; and that on the said date the four accused were produced before him and he fixed the time for holding of the identification 'parade to take place at 3-30 p.m. According to this Magistrate, 38 dummies were mixed with the accused and the abductee picked out the four accused correctly and he prepared such memo. which is produced on record as Exh.5. This memo. of identification also shows that abductee Abu-Muhammad Ismail had correctly picked out the four accused. However, the important point to note is that this memo. of identification bears the date and time which is 5-11 1992 at 3-30 p.m. (15-30 hours) as also stated by the Magistrate in his deposition. As against this Ch. Bakhatawar Ali Inspector of Police who on that date was S.H.O. Ferozabad and was amongst the police party which arrested the accused states in his cross-examination that it was about 1-00 p.m. when the abductee was taken out of the factory and at the same time the remaining police party had reached the gate of the factory in Rafae Aam Society. He further states that thereafter the Police party had prepared the Mashirnama etc. which took about 2-1/2 hours to 3 hours in completion of the police proceedings in the factory after raid, and thereafter they went to Police Station Tipu Sultan and reached there at about 5-00 p.m. He also states that his statement was recorded after 5-00 p.m. at Police Station Tipu Sultan; and that accused were kept detained in Police Station Tipu Sultan till that time his statement was recorded on 5-i1-1992; and that he left the police station at 6-00 p.m. or 6-30 p.m. In view of this statement of Ch. Bakhtawar Ali the accused were all along with the police till about 6-00 p.m. The extract from the Ferozabad Police Station daily diary shows that it was 18-45 hours when the S.H.O. Anwar Hussain Shah reached the said police station with five accused (the fifth being Haris Iqbal) and all the accused were detained in lock-up and they were directed to conceal their faces. It is very surprising that though five accused were arrested by the police yet only four were sent for the purposes of identification parade and not the fifth accused, namely, Haris Iqbal. The above discussion will clearly show that on 5-11-1992, the police had at no time taken the accused for identification, the reasons being that in the first instance, as stated above by Ch. Bakhtawar Ali all the accused were all along the Police Station till he left Tipu Sultan Police Station at about 6-00 p.m. or 6-30 p.m. and,, therefore, the alleged identification parade could not have taken place. The second reason being that if on the very day the accused were sent up for identification yet there would have been five accused and not the four as shown in memo. of identification. This on the face of it gives support to the contention of the learned counsel for the appellants that this memo. of identification is prepared subsequently and the signatures of the Magistrate have simply been obtained thereon without actual putting the accused to identification. Except for the Magistrate this memo. of identification does not bear signatures of any other person. As. regards the integrity and reputation of this Magistrate, this Court has passed strictures in the case of Muhammad Siddiq v. Province of Sindh and others PLD 1992 Karachi 358 wherein observation has been made at page 376 as under: "We were at great pains to note that Mr. Lekhraj Rathi, ACM XIII, Karachi (East) in the case of Major' (Retd.) Zahid Hussain made himself available at the police station or even at Police Lock-up and repeatedly granted his remand in more than one alleged offences. None of the applications submitted to him justified grant of such orders. Mr. Lekhraj Rathi, ACM XIII, Karachi (East), as stated above, was examined by us in Court and he stated that he had passed orders of remand at police station. By granting remand of Major (Retd.) Zahid Hussain at police station at odd hours of the day and night, Mr. Lekhraj Rathi ACM XIII, Karachi (East) has indeed acted contrary to the spirit of law embodied in section 167, Cr.P.C. It will be dangerous to entrust such officers with judicial powers and in this case we hope that the Government of Sindh will take appropriate action against him:' It may also be pointed out that the same investigating officer the S.H.O. Tipu Sultan Police Station had submitted a report in writing duly signed by him in Constitutional Petition No.D-2858 of 1992 before this Court wherein he has stated that after registering the case the abductee was recovered alongwith ransom paid amount Rs.6,00,000 whereas the memo. of arrest in the present case (Exh.26) shows the recovery of total amount of Rs.4,86,

260. These inconsistencies in the two statements also goes to give rise to a doubt. Learned Assistant Advocate-General has vehemently argued that in the present case the abductee has fully supported the case of the prosecution and has identified the accused also in Court. He has placed reliance on the case of State v. Habibur Rahman PLD 1983 SC

286. He has also referred to the provisions of section 2(iv) of the Qanun-e-Shahadat and finally the learned Assistant Advocate-General has referred to the case of Habib and another v. State 1993 PCr.LJ

444. The facts of the above cases have no bearing in the; l present case as the point involved in the present case is quite different than the cited cases. In the present case the material piece of evidence brought by prosecution against the present accused are that of identification, arrest and recovery of ransom money and the weapons. The abductee is said to have already released by the culprits. Now it is interesting to note here that S.H.O. Ch. Bakhtawar Ali is said to have followed P.W. Muhammad Saeed who had gone to pay the ransom amount to the culprits at Jinnah Terminal and he states that the said Muhammad Saeed had paid the amount to the culprits. This police officer as is required in normal course should have followed the culprits who had taken the ransom money but instead he comes away. However the above discussion would clearly show that memo of arrest has not been substantiated nor proved by the prosecution as the two mashirs who were declared hostile have not supported the same and as far as the S.H.O. Anwar Hussain Shah, who is the investigating officer is concerned it may be observed: that in the High Court in the above-referred to Constitutional petition he had stated that ransom amount of Rs.6,00,000 was recovered whereas a4 per; Mashirnama only Rs.4,86,260 were recovered. This arrest and recovery has also become doubtful as the same has not been relied upon by the same court while dealing with the four separate cases under section 13-D of Arm, Ordinance against all the four accused wherein they were acquitted. As regards identification the above discussion would clearly show that the four accused were never put up in identification before the Magistrate and the memo. Of identification on the face of it is manipulated one. In these circumstances, the prosecution has not been able to fulfil the requirements of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 which reads as under:-- "

8. Burden of proof.--Where airy person accused of having committed a scheduled offence is found to be in possession of or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which lead to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence:" Under the above provision the burden to prove innocence would shift to the accused only when the prosecution first established the prerequisite condition in the first part of the above action which indicated that the prosecution should show that the accused is found to be in possession or to have under his control any article or thing which is capable of being used for or in connection with the commission of such offence or that he is apprehended in the circumstances which lead to raise a reasonable suspicion that he has committed such offence. In the present case the prosecution has not only failed to even prima facie I establish the allegations against the, accused but the manner in which the investigation is shown to have been conducted smacks of dishonesty. The I Courts can convict or maintain the convictions in law only when a case is made out against the accused and not where the investigation is dishonest, faulty and F lacking. We regret to - state that this is yet another case where a good work I done by the Law Enforcing Agencies has been spoiled by the police officers who appeared to be incompetent to deal with such situation. Accordingly, we accept Criminal Appeals Nos.147 and 150 of 1993 and set aside the judgment and convictions awarded by the trial Court and acquit the appellants, who shall be released forthwith if not required in any other case. Consequently Criminal Acquittal Appeal No.168.of 1993 is dismissed., Above are the reasons for the short order passed by us on, 31st August, 199.4. N.H.O./A-1490/K Appeals accepted.