' NISAR MUHAMMAD SHAIKH, J.---Through this acquittal appeal, the appellant has challenged the judgment, dated 20-8-1999, passed by learned Judge, Anti-Terrorism Court-I, Karachi, in Case No:175 of 1999, (Crime No, 255 of 1997 of Police Station Defence, Karachi), whereby he acquitted the respondent/accused Taj Muhammad of all the charges under sections 302, 324, 393, 398/34, P.P.C.
And section 7(i)(a) of Anti-Terrorism Act, 1997.
2. Brief facts of the case are that on 20-10-1997, at 5-30 p.m. The statement under section 154, Cr.P.C. Of the complainant Allah Ditta was recorded by SIP Mazhar Iqbal at Jinnah Hospital, Karachi, and the same was incorporated as F.I.R. No, 255 of 1997, on 20-10-1997, at 6-00 p.m. By SIP Zafar Iqbal at Police Station Defence, Karachi. The contents of such statement under section 154, Cr.P.C..
Are as under:-- "I live on the above mentioned address, and since long time, I have been plying donkey cart for labour work of "Makka" cement traders situated at Plot No, 73/C. Owned by Seth Gul Muhammad (injured) at Defence Phase-II Exh. 12 Commercial Street. Today at about 4,15 O'clock noon time, was sitting in front of the shop, in the meanwhile the vehicle (truck] loaded with cement arrived and the labourers started to carry cement in the Goduwn, while the truck driver Muhammad Sadiq son of Muhammad Zaman went inside the office of Seth Gul Muhammad for getting challan. Nephew of Seth Gul Muhammad namely Chan Zeb son of Sher Afzal was already present in the office. In the meantime, a black and yellow Taxi No,J-6607 arrived and stopped at the road, from which four young dacoits, wearing Shalwar Qameez got down, who appeared to be "Pathans" by their faces and language, out of whom one beard having average beard stood outside and one small beard dacoit and two other dacoits without beard having average moustaches, entered into the office and the door was closed. After 2/3 minutes, I heard extensive firing from inside the office, therefore, I raised commotion and tried to close the grill of door, but the dacoit standing outside, having average beard opened fire at me which hit on the grill, therefore I left the grill and moved back. And then all the three dacoits who had entered inside came out of office, in armed condition and ran away, During this, our driver Sajjad Ahmed also reached there, who ran after the dacoits out of whom three dacoits made their escape good by taxi, while one dacoit was running on foot. Sajjad followed the said dacoit, but when he showed him pistol, Sajjad returned back. In the meanwhile Seth Gul Muhammad also came out of his office in a severely injured condition while calling Sajjad, and the driver Sajjad Ahmed took him in a taxi to Jinnah Hospital. We went inside the office and saw that driver Muhammad Sadiq and nephew of Seth, namely, Chan Zeb were lying there, smeared in blood. In the meanwhile police mobile arrived and the police brought the injured persons by a Suzuki, to the hospital, but they had already expired before reaching the hospital. I report. My complaint is against four young persons, recognized by faces, for appearing in a black and yellow Taxi No,JL-6607, to the office of our Seth, and making indiscriminate firing, as a result of which Muhammad Sadiq and Chan Zeb died and Seth Gul Muhammad sustained injuries. Action may be taken. Seth Gul Muhammad will state further details of the occurrence himself."
3. During investigation, the accused/appellant Taj Muhammad was arrested and the car in question was secured from his possession on 16-12-1997, and then he was identified by the complainant Allah Ditto and P.W. Sajjad on 20-12-1997, in the identification parade held before the Magistrate and thereafter on completion of investigation the SIP Imdad Ali, Incharge Anti Burglary, Dacoity Cell, District South Karachi, submitted challan vide charge Sheet No,16, on 19-1-1998, against arrested accused Taj Muhammad showing one Lal Muhammad alias Laloo and three others as absconders.
4. During trial of the case, accused pleaded not guilty to the charge framed as Exh.
8. The prosecution, out of total nineteen witnesses cited in the challan, examined ten witnesses which include four police officials, two medical officers, one Magistrate and three eyewitnesses including complainant. These prosecution witnesses also produced relevant documents during their evidence. Thereafter, the statement of accused under section 342, Cr.P.C. And his statement on oath were recorded as Exhs.43 and 53 respectively during which the accused also produced some documents in respect of his wrongful confinement by the police. After hearing the parties the, learned trial Court acquitted accused Taj Muhammad as mentioned above.
5. We have heard Ms. Akhtar Rehana, Additional Prosecutor-General for the appellant, Mr. Muhammad Shafiq, learned advocate for respondent and perused the material available on record.
6. It is argued by learned Additional Prosecutor-General that the impugned judgment of the trial Court suffers from material defects as the trial Court failed to appreciate the evidence on record, and impugned judgment is a result of misreading and misappreciation of evidence, therefore, the same is liable to be set aside. She also argued that all the prosecution witnesses examined before trial Court, had fully supported prosecution case and there was nothing to create doubt, therefore, the judgment of acquittal is not sustainable in law. She also contended that the accused failed to produce evidence in support of his defence plea which was afterthough and un-believable, therefore, the trial Court should not have brushed aside overwhelming evidence adduced by the prosecution and accordingly the accused is liable to be convicted.
7. On the other hand, learned counsel for accused/respondent argued that he was falsely implicated by the police in this case, only for the reason that he was the owner of the taxi car in question, which was jointly purchased by the respondent and another and same was also being driven at evening time by another driver. He further argued that respondent had left his taxi car at Karachi, and had gone to Lahore, where he was arrested by S.I.P. Mazhar Iqbal on 24-10-1997, but his arrest was falsely shown from Karachi, on 16-12-1997, falsifying the record and proceedings of Hon'ble High Court of Sindh, at Karachi. He further contended that after arresting respondent on 24- 10-1997 from Lahore he was taken to Karachi and then he was handed over to C.I.A. Police of Malir on 29-10-1997, therefore on 5-12-1997, one Muhammad Afsar the brother of accused Taj Muhammad, filed Criminal Miscellaneous Application No, 423 of 1997, under section 491 Cr.P.C.
Before the Hon'ble High Court of Sindh, at Karachi, and the notice of such application was issued to the D.S.P. C.I.A. ' Center Malir but on 11-12-1997, he appeared before the Hon'ble High Court and submitted that the detainee was not under his custody. It was further contended by learned counsel for accused respondent that the custody of accused was since shifted from C.I.A. Centre, Malir to Anti Burglary, Dacoity Cell South at Police Station Baghdadi, Karachi therefore on 16-12-1997 the applicant Muhammad Afsar sworn an affidavit which he enclosed together with his application under section 561-A, Cr.P.C. Filed before the Hon'ble High Court of Sindh Karachi on 17-12-1997, when as per the order of the Hon'ble High Court the Deputy Nazir conducted surprise visit at Police Station Baghdadi on the same day i,e, 17-12-1997, at 10-15 a.m. And found detainee Taj Muhammad confined there and Incharge of the Cell SIP Imdad Ali could not show any entry in respect of detention of the respondent but immediately thereafter they manipulated the papers and falsely showed the arrest of the appellant on 16-12-1997 at 11-15 p.m. Together with the recovery of taxi car in question though the same was already taken in possession of the police. The learned counsel for respondent, therefore argued that alleged arrest and recovery stood proved false as per the record and proceedings of the Hon'able High Court while the alleged identification of the accused is of no consequence being valueless as neither the name of accused/respondent or his description/features was shown in the very F,I.R or 161, Cr.P.C. Statements nor any specific role was assigned to him during identification parade or even at the time of evidence of prosecution witnesses before trial Court and since no specific role was attributed to the accused/respondent therefore, he could not legally he connected for the alleged crime merely on a belated identification, which even otherwise was highly doubtful and could not he believed in any way. He therefore submitted that the judgment of the trial Court was legal with sound reasons and as such the appeal of the appellant is liable to be dismissed.
8. We have considered the above submissions and also perused the relevant record which shows that the case of prosecution as against present accused/respondent Taj Muhammad hinges upon the evidence relating to his arrest on 16-12-1997 together with recovery of taxi car used in commission of crime and also his identification made by eye-witnesses during identification parade held before the Magistrate, and in the Court during trial of the case.
9. The incident as alleged in the very F.I.R. Had taken place on 20-10-1997, and such offence was committed by the strangers who were not known to the complainant party. The accused/respondent Taj Muhammad during his statement under section 342, Cr.P.C. Had produced some undisputed documents which are relating to his unlawful detention by the police.
He has produced the copy of Criminal Miscellaneous Application No,423 of 1997 (Exh.44), which was filed by one Muhammad Afsar, the brother of accused/respondent Taj Muhammad on 5-12-1997, before this Court under section 491, Cr.P.C. For issuance of Rule Nisi for production of detainee/respondent Taj Muhammad from illegal detention of C.I.A. Centre Malir. According to such petition, the respondent/ accused was arrested by SIP Mazhar Iqbal of Police Station Defence Karachi, on 24-10-1997 at Lahore from where he was shifted to Karachi by SIP Mazhar Iqbal and then he was shifted to C.I.A. Centre Malir on 29-10-1997. Such application dated 5-12-1997 was duly supported by the affidavit of applicant Muhammad Afsar. On 24-12-1997, SIP Mazhar Iqbal filed his affidavit before High Court in the above petition stating therein that the investigation of the case/Crime No, 255 of 1997, was entrusted to him on 28-10-1997, and same was then transferred on 12-12-1997 to Anti-Dacoity and Robbery Cell, South Karachi. He denied the allegations levelled in the above petition, stating further in his affidavit that he had arrested accused/respondent Taj Muhammad on 16-12-1997, and recovered Taxi Car No, JL-6607, in presence of an eyewitness of the incident, namely, Sajjad Ahmed as well as A.S.-I. Muhammad Iqbal of Police Station Defence and thereafter he delivered the custody of accused to the Incharge of Anti Dacoity and Robbery Cell.
Thereafter on 17-1-1998, the accused/respondent Taj Muhammad filed his own affidavit before High Court stating therein that said taxi was jointly purchased by him and his brother and the same was being driven as taxi by him as well as his another driver. He further stated that on 24-10-1997, he was arrested at Lahore by S.I.P. Mazhar Iqbal, who shifted him to Karachi on 25-10-1997 by air. He further stated in his affidavit that his taxi was already taken away by the police who shifted his custody to Centre Malir on 29-10-1997, and on 15-12-1997, he was shifted to Anti Dacoity and Robbery Cell situated at Police Station Baghdadi and thereafter on 17-12-1997, an official of High Court came there and enquired about the detention/confinement of accused respondent. The said SIP Mazhar Iqbal then filed his second affidavit (Exh.47), on 28-4-1998, before this Court, admitting therein that on 23-10-1997, he had gone to Lahore in connection with investigation of Crime No, 255 of 1997 Police Station Defence and he returned back on 26-10-1997. The SIP Imdad Ali Incharge of Anti Burglary and Dacoity Cell, in his affidavit (Exh. 48), filed by him on 24-12-1997, before this Court, also stated that the investigation of Crime No,255 of 1997 of Police Station Defence was transferred to them on 12-12-1997, but the accused/respondent Taj Muhammad was arrested on 16-12-1997, and then his custody was handed over to their Cell. On 17-12-1997 the said applicant Muhammad Afsar filed another application (Exh.49), under section 561-A Cr.P.C. Together with his affidavit (Ex.50). He prayed therein that SIP Mazhar Iqbal had told him on 13-12-1997 that they are going to shift the detainee Taj Muhammad to Anti-Dacoity and Robbery Cell at Police Station Baghdadi, Karachi. He therefore requested for appointment of Nazir to search the detainee and recover him from the illegal detention and wrongful confinement of Anti Dacoity and Robbery Cell where he was confined since 14-12-1997. The report of Deputy Nazir dated 17-12-1997 (Exh.51) reveals that as per directions of this Court he along with applicant Muhammad Afsar as well as his advocate reached at Anti Burglary Dacoity Cell on 17-12-1997, at 10-15 a.m., and found detainee Taj Muhammad confined in the said cell. The Deputy Nazir further submitted in his report that SIP lmdad Ali was present at the Cell and he stated that detainee has been in this Cell from 12-30 hours (night), of 17- 12-1997, but he could not show any such entry to the Deputy Nazir.
10. The statement of the accused Tai Muhammad as well as the aforesaid documents, produced by him during his statement also gets corroboration from his statement on oath (Exh.53). Not only this, the SIP Mahar Iqbal during his evidence (Exh.34) also admitted that one Afsar the brother of the accused had filed above petition before the Hon'ble Court and that he had sworn his affidavit before High Court. He also admitted that the Deputy Nazir of High Court had conducted raid at Anti Dacoity Cell in connection with illegal detention of the accused, but he did not know if Imdad Ali Incharge of the Cell could not show any entry. Whereas SIP Imdad Ali of Anti-Dacoity and Robbery Cell also admitted in his evidence (Exh.39), that Deputy Nazir of the High Court had visited their Cell on 17-12-1997 and found the accused sitting there and he had not shown entry to the Deputy Nazir about arrest of the accused. All this goes to support the contention of learned counsel for the accused/respondent that the accused was found in wrongful confinement at Anti Dacoity and Robbery Cell on 17-12-1997, at 10-15 a.m. By Deputy Nazir of High Court and there was no entry or any other document regarding the arrest of the accused/respondent, and therefore, such documents of arrest etc. Were then prepared showing arrest of accused and recovery of car in question on 16-12-1997, at 11-15 p.m. The contention of learned counsel for accused/ respondent that this very material fact supported by relevant documents, itself falsifies the alleged story of mashirnama of arrest and recovery (Exh.19), no doubt carries force in circumstances of this case.
Thus, the recovery of car allegedly effected by SIP Mazhar Iqbal on 16-12-1997, in presence of P.W.
Sajjad, is also doubtful, specially when the SIP Mazhar Iqbal admittedly: was not the Investigating Officer of the case on that day, as according to his own version, the investigation of such case was transferred to Anti Burglary and Dacoity Cell on 12-12-1997. The accused therefore appears to have had been implicated on the basis of his taxi car, the number of which allegedly noted at the spot, was then traced out and found to have been owned by the accused/respondent. In the circumstances, the possibility of his false implication, because of his ownership of the taxi car in question, could not be ruled out. Even otherwise, it does not appear to a prudent mind that the culprit while committing a pre-planned robbery, would use his own taxi car with its actual registration number etc. So that every one may note the same to facilitate police to trace it out very easily. It was also not probable that a culprit would run his same taxi car on the road of the same city after using such car in a commission of crime. All this goes to indicate that present accused/respondent Taj Muhammad was involved in this case as suspect, being owner of the taxi car in question, in absence of proof that he was driving the same car at the time of committing the alleged crime. Moreover, the very F.I.R. Does not show about description of such taxi car except that it was of black yellow colour having number JL-6607, but such colour was common one and its number could easily be arranged and used, which could not be taken as a conclusive proof in any way. Therefore, mere for the reason that accused Taj Muhammad is owner of taxi car in question he cannot be burdened with the liability of his participation, in committing offence in question.
11. So far as the identification of accused Taj Muhammad is concerned, it is an admitted position that features/description of the culprits were not mentioned in the very F.I.R. The identification parade) are resorted to for testing power or capacity of the eyewitnesses to identify the person they claim to identify. Thus the trial Court appears to have rightly assessed the capacity/capability of the prosecution witnesses including the complainant with strong reasons furnished in the impugned judgment, ,Had the faces of culprits been in the mind of the complainant he would have given the descriptions in the very F.I.R. Which was recorded soon after the incident and in absence of it, the evidence of the complainant could not be relied upon. Even otherwise, the identification parade held offer two months of the alleged occurrence, before the Magistrate for identification of accused through complainant, was of no effect when he failed to describe the specific role of the accused in commission of the alleged offence. This complainant has also admitted in his evidence that he had reached in the Court of Magistrate for identification purpose together with P.W. Sajjad who has admitted to have had already seen the accused at the time of his arrest before holding of identification parade in question therefore, it cannot be presumed that this complainant had not seen the accused or was not informed about him prior to holding of identification parade. The P.W.
Sajjad is shown to have picked up the accused Taj Muhammad in the identification parade held before the Magistrate on 20-12-1997, is also of no significance as he has claimed to have had already seen the accused on 16-12-1997 at the time of his arrest. Even otherwise, this witness could have seen only the partial glimpse of the faces of three culprits and that too, at a time when they were in the state of terror, therefore, the identification test held after two months of such occurrence, would not be of much value, as the simple identification of an accused in delayed identification parade would not be material, especially when no specific role of the accused in commission of the alleged crime was described during that identification parade. Likewise, the identification of accused/respondent Taj Muhammad by P.W. Gul Muhammad is of no consequence as he identified the accused during evidence recorded in Court after two years of the occurrence as he had not participated in identification parade to identify the accused at that time, therefore, his evidence in respect of alleged identification cannot be relied upon, especially when his 161, Cr.P.C. Statement, as deposed by him, was also recorded after about 10/12 days of the alleged incident. Since the role of the accused in commission of alleged crime is not described in the very F.I.R., hemp the evidence of eye-witnesses has lost its efficacy in absence of such material and therefore, the same cannot be relied upon. No doubt, this P.W. Gul Muhammad was a star witness being injured/victim of the incident but since the accused was stranger and not known to him by face or by name, therefore, the identification of the accused through this P.W. Gul Muhammad in identification parade, was must and in absence of it, the evidence of this P.W. Gul Muhammad recorded after two years of occurrence, has become valueless. On account of such weak and doubtful evidence on a very material point of identification, the very presence of the accused at the spot at relevant time and his participation in commission of crime, could not be presumed to have been proved in any way, by the prosecution.
12. It is evident from the impugned judgment that the trial Court had appraised the relevant evidence available on record by making threadbare examination of each relevant piece of evidence, supported by reasons based on record and no prosecution evidence, incriminating in nature, appears to have been misread or omitted from consideration or not appraised in its true perspective and as such, the impugned judgment of acquittal is unexceptionable and does not suffer from any factual or legal infirmity and, on the contrary, the same has been based on fair, and legal appreciation of evidence on record with sound reasons, therefore, the same calls for no interference by this Court, especially when the double presumption of innocence having been attached to the judgment of acquittal passed by the trial Court of competent jurisdiction and the appellant has not been able to show that the findings of the trial Court were perverse, illogical, artificial, ridiculous or based upon misreading of the evidence leading to miscarriage of justice.
13. In view of the above facts and circumstances, we had dismissed this criminal acquittal appeal vide a short order, dated 11-3-2010, and these are the reasons for the same.