MUHAMMAD MOOSA, K. LAGHARI J.--- The above titled Special Anti-Terrorism Acquittal Appeals filed by the State impugning therein the judgment dated 21-2-2000 passed by the learned Judge Anti-Terrorism Court No,II, Karachi in Special Case No,358 of 1999, are being disposed of by this single judgment.
2. The respondents were tried by the learned Judge Anti-Terrorism Court No,2, Karachi, in Special Case No,358 of 1999 arising out of F.I.R No,214 1999, registered at Police Station S.I.T.E., Karachi West, under sections 302, 394, 34, P.P.0 r/w section 7 Anti-Terrorism Act, 1997.
3. Precisely stated that facts forming the background of the case are that deceased PC Anwar Kamal was posted at Police Lines, Karachi West. He after finishing his duty on 1-10-1999 boarded Al- Misri Coach bearing Registration No,PE-3980, for going to his house. Constables Muhammad Aijaz, Muhammad Nawaz and Abdul Qadir boarded the same coach. Four persons, three of whom were armed with pistols also boarded the said coach from Ghani Chowrangi Bus Stop. At about 8-15 p.m., when the coach reached near Tajuddin Silk Mills, three persons took out their pistols. They unseated driver Muhammad Iqbal and driving' seat was occupied by the fourth accused. Two armed persons stood on both the doors of the coach while third one started robbing the passengers. On his turn the deceased, offered resistance, upon which he was fired upon by the said robber who was duly armed with pistol. The culprits then drove the coach towards Walika Hospital, and disembarked near it while issuing threats to the passengers. Driver Muhammad Iqbal then occupied his seat and drove the vehicle to Abbasi Shaheed Hospital. Deceased Constable who was in serious condition was provided first aid there and was then taken to J.P.M.0 Karachi for further treatment. However, in the meantime, the information about the incident was conveyed by Dr. Abdul Shakoor, M.L.O, Abbasi Shaheed Hospital at Police Station S.I.T.E. On receipt of such information duty officer SIP Hussain Ahmed proceeded to the hospital but before his arrival deceased had already been shifted to J.P.M.C., where he succumbed to the injuries. The police officer and the medical officer completed the required formalities. It seems that subsequently such information was given to Muhammad Latif, brother of the deceased at his house' who arrived at J.P.M.C, Karachi at 1.00 a.m. They First Information Report of Muhammad Latif was then recorded by SIP Muhammad Hussain on a plain paper and was sent to SITE Police Station for incorporation of the same in 154, Cr.P.C, Book. Accordingly ASI Muhammad Raza drew up the formal F.I.R. Bearing No,214 of 1999, under sections 302, 394, 34, P.P.C. The case was then assigned to Inspector Muhammad Yousuf of SITE Police for investigation.
4. After usual investigation the accused/respondents were sent up to stand trial before the Anti- Terrorism Court.
5. Formal charge was framed to which the accused/respondents pleaded not guilty resultantly the trial commenced.
6. At the trial prosecution examined as many as 16 witnesses which included P.C. Abdul Qadir, Driver Muhammad Iqbal, Conductor Abdul Rahim, P.C. Ahmed Nawaz, P.C. Muhammad Yousuf, Dr. Iftikhar Ahmed, Medical Officer, Dr. Shahid Shaikh, P.C., Zafar Iqbal, Police Inspector Noorudding Sanjrani, First Informant Muhammad Latif and Judicial Magistrate Shaikh Javed Mir, and then closed their side.
7. Consequent upon closure of prosecution evidence, the statements of the accused/respondents were recorded under section 342, Cr.P.C, in which they denied the allegations.
Accused/respondents resiled from their judicial confessions. All of them pleaded their innocence.
8. Learned trial Court on the basis of evidence adduced before it came to the conclusion that the prosecution have failed to prove the case beyond reasonable doubt. Accordingly by extending benefit of doubt learned trial Court acquitted the accused/respondents under section 365(H)(i), Cr.P.C. Hence these appeals.
9. We have heard Mr. Habib Ahmed, learned Asstt. A.G. For the appellant/State and Mr. S. Mehmood Alam Razvi, Advocate for respondents.
10. It was contended by learned A.A.-G., that PWs Muhammad Iqbal and Abdul Rahim were the eye- witnesses of the incident who have fully implicated the accused persons. Accused persons were picked up in an identification test. There was no motive for the prosecution to falsely implicate the accused persons, and further that the evidence of the witnesses was consistent and natural. In the first instance learned A.A.-G. Also pressed the point of confession, however subsequently the same was given up. He however argued with considerable vehemence that in view of the availability of overwhelming evidence, the acquittal resulted in miscarriage of justice. Learned A.A.-G., while criticizing the judgment of trial Court urged that the same called for interference and reversal.
11. Conversely learned counsel for respondents supported the impugned judgment contending that there was no ocular evidence; identification test was defective; that the F.I.R. Of the incident was inordinately delayed, and the confession was inadmissible. The recovery of pistol from accused/respondents Asfandyar and Sher Zaman was highly doubtful.
12. We have earnestly considered the arguments advanced at the bar and have minutely examined the evidence available on record with the assistance of learned A.A.-G and the counsel for the respondents.
13. According to the prosecution version incident took place at 8-15 p.m. On 1-10-1999. It is the case of the prosecution that when the coach was taken to Abbasi Shaheed Hospital, two conductors, one driver, three constables were available there but none of them informed the *ice and registered the F.I.R. The driver had deposed that he did not call police at hospital though he remained at hospital for about 1-1/2 hours. According to the evidence of P.W. Abdul Rahim conductor of the coach after 10/15 minutes of their reaching at the Abbasi Shaheed Hospital police had arrived there. Evidently though police arrived within 10/15 minutes of reaching the injured/deceased at hospital, even then the F.I.R was not got registered. Amazingly brother of the deceased namely Muhammad Latif had to be called from his house to the hospital. Even then his statement was recorded in the hospital which was subsequently incorporated in the register.
Admittedly P.W. Muhammad Latif was not B the eye-witness. There is nothing on record to show that as to how facts of the incident came to the knowledge of P.W. Muhammad Latif.
14. It was brought on record that six P.Ws. Namely driver Muhammad Iqbal, Wazir Muhammad, Abdul Rahim, the conductors and three Police Constables namely Abdul Qadir, Ahmed Nawaz, and Muhammad Aijaz were available in the coach when the incident took place. However, none of them came forward to register the F.I.R, though they were all along present according to the prosecution story. There is no explanation for delay in the registration of F.I.R. Such belated lodgment of report despite all along availability of the police personnel and association was sufficient to adversely affect the case of prosecution.
15. The evidence of P.Ws Muhammad Iqbal and Abdul Rahim, who were claimed by the learned A.
A.-G to be the eye-witnesses is based on identification test of the two sets of accused. In the first instance identification test of accused/respondents Sher Zaman and Asfandyar was allegedly held and subsequently accused/respondents Bakhat Munir and Naimat Khan were put to the identification test. Accused/respondents Sher Zaman and Asfandyar were allegedly arrested by Inspector Nooruddin Sanjrani on 24-10-1999 from Zia Colony Road at 7.20 p.m., and unlicensed T.T.
Pistols were also allegedly recovered from them. Not only that no private person was associated to attest the arrest and recovery but no any effort appeared to have been made by the police to approach any person from the public to witness the arrest and recovery. While noticing the place of arrest which was the road of a colony and the time which was 7-0' Clock, we feel that it was incumbent upon the police officers to have at least approached the private person to act as Mashir, in compliance of the provisions of section 103, Cr.P.C. In the given circumstances, the arrest/recovery was rightly disbelieved by the trial Court.
16. The identification test of the above named accused persons was held on 28-10-1999, admittedly after four days of their arrest. The remaining accused/respondents Bakhat Munir and Naimat Khan were allegedly arrested by Pirabad police on 28-10-1999 while their identification test was held on 30-10-1999. Undoubtedly the identification test was delayed. The identification test further suffered from infirmity for the reason that it was conducted jointly. Quite amazingly instead of associating independent persons to act as Mashirs of the identification test the Magistrate concerned picked up the police officials more particularly the Investigating Officers to act as Mashirs. The presence of police officers at the time of conducting the identification and making them Mashirs of the said test further deteriorated the credibility of the identification test. An identification test conducted in such spurious manner could hardly be given credence to warrant conviction.
17. In order to cover the weakness in their case, the prosecution also got confessions of the accused persons recorded by the same Magistrate but those were retracted. The Magistrate recorded the alleged confessions of the accused persons in English language which admittedly was not understood by the accused persons. The confessions did not F contain any note by the Magistrate concerned to the effect that contents thereof were ever explained to the accused persons in language which they understood. Even the Magistrate did not depose about that. Having noticed the inherent defect in the confessions so recorded, learned A.A.-G, was constrained to abandon this piece of evidence. However this overzealous attempts on the part of the- prosecution resulted to be counter-productive and further weekend their case.
18. The above discussion makes it abundantly clear that ocular evidence was lacking, the identification test contained inherent defects, the recovery was doubtful, the confession having been recorded in G violation of the legal provisions marred by the factum of inordinate and unexplained delay in registration of F.I.R., no other view could be possible except, to hold that case of prosecution was extremely doubtful.
19. It hardly needs to be emphasized that an appeal against acquittal could, in no way be equated with an appeal against conviction. Ordinary scope of appeal against acquittal is considerably narrow and limited.
20. Hon'ble Supreme Court in Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 has laid down the role of an appellate Court while deciding appeals against acquittal. In the said case it was ruled that the principle of appreciation of evidence in acquittal cases was that the conclusion arrived at by the trial Court, was unreasonable, the reasons assigned for the same were artificial, ridiculous and shocking. In Ahmed v. Crown, PLD 1951 Federal Court 107, it was held that before an order of acquittal is reversed, it must be shown that the judgment of the Sessions Judge was unreasonable or manifestly wrong. This principle was reiterated in Abdul Majeed v. Superintendent of Legal Affairs, Government of Pakistan, PLD 1964 SC 426. In State v. Bashir, PLD 1997 SC 408, it was laid down by their lordships of the Supreme Court that in an acquittal appeal, Superior Courts generally do not interfere, unless they find that miscarriage of justice has taken place. The case-law on the subject is well settled. However, it appears appropriate to cite very recent important judgments. Reference can be made to (i) State, through A.-G. Sindh v. Muhammad Shafique alias Pappu and another, 2002 SCM R 620, (ii) Munawar Shah v. Liaquat Hussain and others, 2002 SCM R 713, and (iii) Khadim Hussain v. Manzoor Hussain Shah and others 2002 SCM R 261.
21. Having tested on the touchstone of the case-law as referred herein-above and on appreciation of evidence on record, we found that the judgment was absolutely in accordance with the evidence, and valid and sound reasons were assigned for arriving at the logical conclusion. As such no interference was warranted and the appeals were bound to fail. For the above mentioned detailed reasons the acquittal appeals were dismissed by short order dated 15-1-2003.