QAISER AHMED HAMIDI, J. -- Appellants Sher alias Ilyas and Anwar were tried by Mr. Allah Bux Memon, Judge Special Court, Suppression of Terrorist Activities, Hyderabad, for the offence under section 365-A, P.P.C., who found them guilty and vide judgment, dated 30th April, 1991 sentenced each of them to imprisonment for life and to forfeiture of their property. By this appeal filed under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the appellants have challenged their conviction and sentence.
2. On 14-4-1990 at about 8-20 p.m. Complainant Sujawal was standing at the water-course of Bhan minor, near village Bhamban, District Dadu alongwith his brother Gul Muhammad and cousin Allah Wasayo in connection with the rotation of their water. P.W. Haji Khan, a relative of complainant Sujawal was present at his wheat thresher; while Ghulam Rasool, Manzoor and Shahid were present there with their donkeys, when all of a sudden four dacoits emerged there, out of them one was armed with a kalashnikov, while the rest carried rifles/guns with them. They caught hold of Sujawal, Haji Khan, Ghulam Rasool, Allah Wasayo, Gul Muhammad Manzoor and Shahid and took them towards jungle. When the dacoits reached near village Hassan Shah alongwith their victims they released Gul Muhammad, Shahid and Manzoor. Gul Muhammad was also given a letter for its delivery to the relatives of abductees who were asked to pay ransom for their release.
The abductees were taken to a school in village Nawa Jatoi from where complainant Sujawal managed his escape. On the way he met Imdad Ali S.H.O. Bhan Saeedabad Police Station who recorded his 154, Cr.P.C. Statement on plain paper, which was subsequently incorporated in 154, Cr.P.C. Book maintained at the police station. After 22 days all the three abductees, namely Haji Khan, Ghulam Rasool and Allah Wasayo were released on payment of ransom. Absconding accused Abdul Karim and Jurio who were identified were nominated in F.I.R., while appellant Sher alias Ilyas was picked up by the witnesses in the identification test held on 24-6-1990. Appellant Anwar who was sent up in absentia surrendered before the trial Court and was taken into custody.
Accused Abdul Karim and Jurio could not be arrested and the case proceeded against the appellants only.
3. The appellants pleaded not guilty and claimed a trial. At the trial the prosecution examined Sujawal (P.W.1), Haji Khan (P.W.2), Gul Muhammad (P.W.3), Ghulam Rasool (P.W.4), Azizullah (P.W.5), Rafique Ahmad, Assistant Mukhtairkar (P.W.6), Imdad Ali S.H.O. (P.W.7), Manzoor (P.W.8) and Allah Wasayo (P.W.9).
4. The appellants met the charge by a denial professing ignorance. According to them they are partymen of Pir Mazhar who has got enmity with the police and it was on account of this enmity that they were falsely roped in this case. The appellants did not step into the witness box. They also led no defence.
5. On the assessm ent of evidence available on record the learned Judge found the appellants guilty and convicted them accordingly. It is in these circumstances that the present appeal has been filed.
6. There are three sets of witnesses examined by the prosecution to prove charge against the appellants. They are:
(i) Gul Muhammad (P.W.3), and Manzoor (P.W.8), who were released by the culprits alongwith Shahid (not examined) with a letter for the relatives of abductees demanding ransom for their release;
(ii) Sujawal (P.W.1), the complainant in this case, who managed his escape from village Nawa Jatoi; and
(iii) Haji Khan (P.W.2), Ghulam Rasool (P.W.4), and Allah Wasayo (P.W.9) who remained in the custody of dacoits for about 22 days and were released on payment of ransom.
7. There are certain facts and circumstances in this case which are not in dispute. These are:-- (i)That the night of incident was dark.
(ii)That the source of identification was a torch, or lantern, which were not secured by the police during the course of investigation.
(iii)That the names of appellants were not disclosed in the F.I.R.
(iv)That both the appellants were not known to complainant Sujawal and other witnesses examined by the prosecution.
(v)That no evidence connecting the appellants with the letter (Exh.11)sent by the dacoits through Gul Muhammad was adduced.
(vi)That no evidence about the receipt of ransom money by the appellants from the relatives of abductees is available on record.
(vii) That no identification test in respect of appellant Anwar was held through any of the prosecution witnesses, and
(viii) That the identification test in respect of appellant Sher alias Ilyas was held on 24-6-1990 after 12 days of his arrest in this case (as he was already in custody) with no explanation of this delay.
8. With this admitted position, let us now examine the evidence of first set of witnesses consisting of Gul Muhammad (P.W.3) and Manzoor (P.W.8). Gul Muhammad (P.W.3), who is brother of complainant Sujawal has not supported the case of the prosecution against both the appellants.
According to him he had identified the absconding accused Abdul Karim and Jurio. He has also admitted in clear terms that the faces of the dacoits were muffled upto the place where he alongwith Manzoor (P.W.8), and Shahid were released. Gul Muhammad (P.W.3) has admitted about the identification test, but stated as follows:-- "Police had taken us to the office of Mukhtiarkar Sehwan alongwith Sujawal, Haji and other witnesses. A line of 8 or 10 persons was shown. I was not able to identify any of them."
9. Manzoor (P.W.8) also speaks of four dacoits who had abducted complainant Sujawal and others at the point of deadly weapons. He has further stated that the dacoits had released him and Gul Muhammad and gave a letter for Saleh Muhammad demanding ransom. The evidence of Manzoor (P.W.8) makes it clear that the faces of the dacoits were muffled and that no identification test was held by police through him. He has also admitted that both the appellants were known to him previously. It, therefore, follows that both Gul Muhammad (P.W.3) and Manzoor (P.W.8) have failed to connect the appellants with this crime.
10. Sujawal (P.W.1) who is the complainant in this case was with the dacoits upto village Nawa Jatoi.
He has testified the facts leading to this incident. His evidence shows that the dacoits had taken him and other hostages to a school situated in village Nawa Jatoi and they were taking tea there when he got an opportunity and slipped away. About the identity of the dacoits, Sujawal (P.W.1) has stated as follows:-- "The faces of the dacoits who had abducted were all open. I identified two of them. They were Abdul Karim and Jurio. The others I could identify if shown. After 21/22 days Allah Wasayo Gullu Dayo and Haji came back on payment of Bhung money. I had shown Wardat to police. It is not correct that I had identified the dacoits in the identification test in presence of Magistrate."
It is thus obvious that Sujawal (P.W.1) has also not uttered a word against the appellants.
11. We are now left with the evidence of third set of witnesses consisting of Haji Khan (P.W.2), Ghulam Rasool (P.W.4), and Allah Wassayo (P.W.9). Out of them Haji Khan (P.W.2), and Ghulam Rasool (P.W.4) have not supported the case of the prosecution. Haji Khan (P.W.2) has testified that the dacoits had taken all the three abductees to a dense jungle where they were kept for 22 days and he was released after his relatives paid a sum of Rs.20,00Q to the dacoits. The evidence of Haji Khan makes it clear that the faces of the dacoits were muffled at the time of abduction and that he was not allowed to see their faces during his stay in the jungle. His evidence further shows that during the period of stay in jungle other persons had attended him. In this view of the matter, the statement of Haji Khan (P.W.2) that he had picked up appellant Sher alias Ilyas in the identification test has got no evidentiary value, specially when he was not asked to identify appellant Sher alias Ilyas while he was in the dock.
12. Ghulam Rasool (P.W.4), who is one of the abductees has not supported the case of the prosecution. He has admitted in clear terms that he was not able to identify any of the dacoits. His evidence further shows that no identification test was held through him and that the dacoits had freed him after his father had taken Holy Qur'an to them.
13. We are now left with the evidence of Allah Wasayo (P.W.9) alone. He has implicated the appellants by stating as follows:-- "We were brought by the dacoits to Kundah forest where we were kept for about 22 days, after which they left us telling us that they had recovered the money for our release. We came back at Bhamban. Police had come and my statement was recorded. I knew the dacoits before. They were Sher Panwhar, Anno Khushk, Jurio Panwhar and Abdul Karim Panwar. After about 20 daps I was called at the office of Assistant Mukhtiarkar, Sehwan and in his presence, I had identified accused Sher only from the line of 17 persons."
14. Besides being inconsistent, the evidence of Allah Wasayo (P.W.9) suffers from various infirmities.
The case of the prosecution as unfolded in the F.I.R. (Exh.8) and by other prosecution witnesses is that only two persons, namely, Abdul Karim and Jurio could be identified and the names of both these absconding accused find place in F.I.R. The statement of Allah Wasayo (P.W.9) to the effect that he knew both the appellants prior to this incident is rendered doubtful from the omission of the names of appellants in F.I.R. Quite admittedly Allah Wasayo (P.W.9) was with complainant Sujawal (P.W.1) upto village Nawa Jatoi and if he was able to identify these appellants there was nobody to prevent him from disclosing their names to- complainant Sujawal (P.W.1), who could have disclosed this fact in F.I.R. (Exh.8). Again if the appellants were already known to Allah Wasayo (P.W.9), the holding of identification parade through him was only a waste of time. The identification parade was again held after 12 days of the arrest of the appellant Sher alias Ilyas in this case, who was already in custody in some other case, with no plausible explanation of delay.
The possibility that the witnesses had seem appellant Sher alias Ryas in police lock-up before the actual test was held,' therefore, cannot be ruled out. The evidence as to identification of each accused must be sufficient to exclude with reasonable certainty the possibility of mistake. The identification parades are held not as a rule of law, but as a rule of prudence to eliminate the possibility of any mistake. Such evidence furnishes evidence to corroborate the evidence which the witnesses tender before the Court, and therefore, where the witnesses fail to identify the accused in Court such evidence of identification test alone has got no legal value.
15. Mr. S. Sarfraz Ahmad, learned Additional Advocate-General has contended with force that in cases in which the culprits do very heinous acts like the one under consideration many persons are unwilling to support the case of the prosecution due to the fear of such persons and consequently having regard to the present law and order situation some latitude has to be given to the prosecuting agency. It is difficult to be patient with argument of this kind. A conviction can be recorded on the strength of legal evidence alone and we would be laying down a doctrine extremely detrimental to the administration of justice, if this contention is upheld. It may be added that where the crime is henious the Courts must guard themselves against instinctive reaction and they should make a dispassionate appraisal of evidence without being influenced from the nature of offence and exhibiting sentiments.
16. On the material before us which has been examined by us with all possible care and attention, we have no hesitation in holding that the case against the appellants is highly doubtful in nature.
Accordingly we allow the appeal acquitting the appellants and setting aside their convictions and sentences. The appellants who are in custody be released forthwith, if not required in any other case.
17. By a short order, dated 26th September, 1991, we had allowed this appeal and these are the reasons for the said order.