' MUHAMMAD ASLAM ARAIN, J.---This appeal under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, is directed against judgment dated 26-5-1992 passed by the Special Court-1 (STA) Karachi in Special Case No,309/91, whereby appellant Hatim Ali Shaikh son of Abdul Sattar Shaikh who was tried for an offence under section 365-A/34, P.P.C. Is convicted and sentenced to R.I. For 25 years and confiscation of his entire movable or immovable properties. Co- accused Abdul Sattar Morio has been acquitted by the same judgment as the case against him was not proved.
2. The prosecution case in brief was that on 20-7-1990 at 08-20 hours, Jamil Dada Bhoy, hereinafter to be referred as abductee, went along with his wife Mst.Rubina to K.M.C. Market situated within P.S. Soldier Bazar Area to purchase household goods. The abductee left his car outside the Market in an adjacent street. When the abductee and his wife returned after some time, and opened the boot of his car to keep the goods, a culprit came behind and held him by the collar of his shirt. At that time three more culprits armed with automatic weapons also appeared. The culprits demanded key of the car from abductee, which he threw in the boot of the car and thereafter the four culprits forced abductee into the car and drove him off. Mst.Rubina was left behind who narrated the incident on telephone to Saleem Dada Bhoy, the brother of the abductee, who went and lodged F.I.R. No,217/90 at 00-15 hours at P.S. Soldier Bazar under section 365-A/34, P.P.C.
3. The complainant Saleem Dada Bhoy received telephone calls from the culprits, who demanded Rs,10 Million for release of abductee Jamil Dada Bhoy and also threatened that if the ransom amount as demanded was not paid, the abductee would be killed. The amount of ransom money, as has come in evidence, was subsequently settled at Rs,4 lacs which was paid to one of the culprits near Agha Khan Hospital, Karachi by Saleem Dada Bhoy and thereafter abductee was released. On reaching home, the abductee narrated the entire incident and stated that he could identify the accused if they were arrested and shown to him.
4. Appellant and acquitted accused Abdul Sattar Morio were arrested by Gizri Police in Crime No,49/91 under section 302-34, P.P.C. For the murder of a senior police officer Muhammad Usman.
The Soldier Bazar Police was informed about the arrest of certain culprits, who interrogated the appellant and acquitted accused, who are said to have admitted abduction of Jamil Dada Bhoy and also disclosed that the other culprits with them were Altaf Hussain, Abdullah Magsi (both absconding) and Agha Jawed, who was killed during an encounter with Police. After usual investigation, challan against appellant and Abdul Sattar Morio was submitted in the Special Court, in which Altaf Hussain and Abdullah Magsi were shown as absconders.
5. Charge (Exh.1) was framed against appellant and acquitted accused on 5-12-1991 under section 365-A/34, P.P.C. To which they pleaded not guilty and claimed trial.
6. Prosecution examined P.W.I. Saleem Dada Bhoy, the complainant (Exh.2), who produced FIR No,217/90 (Exh.3), P.W.2 Jamil Dada Bhoy, (abductee) (Exh.4), P.W.3 Ghulam Haider Abro (SHO P.S. Soldier Bazar, Karachi) (Exh.S), who produced Mashirnama of Wardat (Exh.6) P.W.4 Fateh Muhammad Awan (Sub-Inspector of Police, P.S. Soldier Bazar (Exh.7), who conducted the investigation after transfer of S.I.P. Ghulam Haider and he produced Mashirnama of arrest of two accused (Exh.8) so also Mashirnama of Wardat purporting to have been prepared at the pointing of accused after their arrest (Exh.9) and sketch of Wardat (Exh.10).
7. Statement of appellant under section 342 of Cr.P.C. And that of the acquitted accused Abdul Sattar Morio was recorded on 14-5-1990 and both denied allegations of having abducted Jamil Dada Bhoy. Both accused stated in their statements that they were activists of Jea Sindh Tehrik and have been involved falsely in the case. They also stated that D.I.-G. Police Aftab Nabi, who was the brother of M.Q.M. Minister Islam Nabi and I.-G. Police Sindh G. Moeenuddin had falsely involved them in this and other cases due to their affiliation with Jea Sindh Tehrik. A photostat copy of certificate dated 4-9-1991 issued by Superintendent Central, Prison Sukkur was placed on record ,by acquitted accused Abdul Sattar as Exh.D/1 indicating that he was arrested and confined in said jail on 11-10-1989 and released on bail on 16-12-1990.
8. The R & P of the case shows that the Advocate appearing for appellant had moved an application to summon a defence witness but no order is passed on such application. Record does not even indicate if the witness proposed to be examined in defence was given up. On conclusion of trial the learned trial Court acquitted accused Abdul Sattar Morio and convicted the appellant as stated above.
9. We have heard the learned counsel for the appellant and the AA.-G. The contentions raised by the learned Advocate for the appellant are, that the entire evidence in the case is recorded in a haphazard manner, that the sole eye-witness, besides the abductee was his wife Mst.Rubina, who has not been examined and the inference would be that she was not prepared to support prosecution, that the identification of appellant through the abductee Jamil Dada Bhoy or his wife Rubina is not held, that the identification of appellant by abductee in Cot after one year and six months is of no consequence, that the learned trial Court has not discussed the evidence nor given any reasons for accepting same against appellant, that although list of defence witnesses was filed, whom appellant wanted to examine in defence, neither any orders were passed on such application nor the witnesses summoned, that there are material contradictions in the evidence of abductee Jamil Dada Bhoy and the I.O., and although such contradictions were pointed out during arguments no mention of same is made in the impugned judgment and lastly that the Mashirs of two Mashirnamas (Exhs. 6 and 9) are police officials being the subordinates of the S.H.O. And there is violation of section 103 of Cr.P.C.
' Learned AA.-G, while supporting the conviction and sentence has argued that because the I.0 was examined, there was no need of examining the Mashirs who although police constables are to be treated as good witnesses as any other person and since they have not been examined it would be futile to consider if the I.O. Violated the provision of section 103, Cr.P.C. By not associating respectable inhabitants of the locality. It is also argued that the evidence of the abductee Jamil Dada Bhoy alone, who identified appellant in Court, was sufficient to record conviction and evidence of abductee being free from taint or bias was rightly accepted by the trial Court.
10. We have gone through the entire record of the trial Court and the evidence recorded by it.
Appellant Hatim Ali Shaikh and acquitted accused Abdul Sattar Morio were admittedly arrested in Crime No,49/90 registered at P.S. Clifton under section 302 of P.P.C. Some 6/7 months before the incident of this case. Both the accused are stated to have been in custody of Gizri Police. It is not explained why the accused were detained at police station for 6/7 months if they were arrested in Crime No, 49/90 registered at Clifton P.S. Their detention in police custody in our view was illegal because they could not have been detained in police custody beyond a period of 14 days. What is more surprising in the case is, that P.W. S.I.P. Fateh Muhammad (Exh.7) stated in Court that he formally arrested the accused in this case on 9-3-1991 when he interrogated them at Gizri Police Station, where the accused allegedly admitted having kidnapped Jamil Dada Bhoy and volunteered to point out the place from where they had abducted him. Although arrest was shown on paper but as admitted, both accused were not either taken into custody in this crime nor taken to the place of Wardat from where they had abducted Jamil Dada Bhoy, for another 8 days.
Mashirnama of Wardat prepared at the pointing of accused is dated 17-3-1991. Both Mashirs of Exh.9 are police officials. The very arrest of the accused in this case and preparation of memo. Of Wardat (Exh.9) at appellant's pointing in our view, is not only doubtful but reflects the mala fides of the police, who somehow or the other seem to be determined to implicate accused in this case.
11. Complainant Saleem Dada Bhoy was admittedly not an eye-witness of the incident of abduction. He, however, had paid ransom amount of Rs,4 lacs to appellant on 26-7-1990 near Agha Khan Hospital. It is surprising to note that identification of appellant through complainant was not held. The most material evidence in the case was of Mst.Rubina, in whose presence her husband Jamil Dada Bhoy was kidnapped. She is not even cited witness in the challan, although it is in evidence that the police had recorded her 161, Cr.P.C. Statement. Abductee Jamil Dada Bhoy, who was released on 27-6-1990, was examined by police after more than 8 months on 19-3-1991. In his evidence he has tried to show that appellant was one of the culprits who kidnapped him but we are pained to observe that the identification of the culprits through him even was not held. He has admitted that most of the time the culprits were keeping their faces muffled. Failure on the part of the police to hold identification of accused through the kidnapped has, in our view, rendered the prosecution case against appellant doubtful. Identification of appellant by kidnapped Jamil Dada Bhoy in Court is of no consequence which was after one year and 7 months of the occurrence. In the case of Mureed v. The State (1990 PCr.LJ 470) a D.B. Of this Court observed that where the accused is not known to the witness before the incident and no identification test is held through him before he is examined in Court, the evidence of such witness as to identity of such accused is not of much value. In the said case reference was made to a judgment of this Court reported in PLD 1965 (W.P) Karachi 31. In the case of Sultan and others v. The State (1976 PCr.LJ 1348) it was observed that where the identification parade was not held prior to an enquiry by the committal Magistrate, the identification of accused persons by the eye-witnesses at the enquiry and the trial, as such, was not helpful to the prosecution. Similarly, we find that the description and particulars of the culprits were not given by the kidnappee in his statement before police and his identifying appellant in Court would, therefore, be inconsequential. In the case of Maula Dad alias Maulu and others v. Emperor (AIR 1925 Lahore 426), it was held that where the identification evidence is given, such evidence cannot be relied upon if the witness who identified the accused had not previously given some description of the persons which coincided with the actual facts. In the case of Abdul Satter and another v. The State (1981 SCM R 678) it was observed that where the accused were completely strangers to prosecution witnesses, recongnization of accused by prosecution witnesses is to be taken with considerable amount of caution and is to be scrutinized very carefully.
12. In the case of The State v. Sobharo (1993 SCM R 585)r it was observed in paragraph 11 of the judgment as under`:-- "11. It is now very clear that the case of Muhammad Yousaf Zai (supra) is distinguishable and observation of the High Court is confined to the peculiar facts of that case of bank fraud only and there was no intention to lay down general proposition as is being convassed before us by learned AA.-G. That identification test need not be held if eye-witnesses are able to identify the accused before the trial Court even in murder cases. If this view is accepted, then whole legal infrastructure of identification test made under the law and supported by case-law would collapse and become redundant. Legal position stated in the other two rulings is correct but would not apply to the facts of the present case in which the eye-witnesses did not give name of the accused to the complainant nor description of his features for the reason that he was not known to them from before and was seen by them for the first time. We, therefore, agree with the trial 'Court that identification test has no value for want of description of respondent in FIR."
' The identification of appellant by the kidnappee Jamil Dada Bhoy in Court is, in our view, not worthy of reliance and because it is to be scrutinised with great caution, reliance can hardly be placed on such piece of evidence.
13. On the point of paynient of ransom amount to appellant, there is solitary word of complainant Saleem Dada Bhoy who stated that he along with his driver Char-Shambe went in their car near Agha Khan Hospital, where the amount was paid to appellant. He further stated that at that time two culprits who were in the car had come to receive the ransom amount by their faces were muffled and further that the accused before the Court were not the same. The driver Char-Shambe was the other material witness on the point of payment of ransom amount but he was not examined. The complainant did not even care to inform the police that ransom amount was to be paid to the culprits at a particular place and time and we (have), therefore, a reason to doubt even the payment of ransom amount by Saleem Dada Bhoy to anyone of the culprits.
14. During investigation of a crime and particularly when a place is to be searched or memo. Of Wardat is to be prepared, the association of respectable inhabitants of locality is always insisted upon as required under section 103 of Cr.P.C. If any case-law on the point is needed, reference may be made to the cases of Yameen Kumhar v. The State (PLD 1990 Kar. 275 (DB)), Jan Muhammad v.
The State (1989 MLD 4138) and Zaheeruddin v. The State (1989 PCr.LJ 92). Because the two Mashirnamas of Wardat (Exhs.6 and 9), the first prepared at the pointing of complainant Saleem Dada Bhoy and the second at the pointing of appellant Hatim Ali Shaikh, were attested by police constables working under the I.O. And because said two Mashirs have not been examined we would not like to advert to the evidentiary value of such memos. We can, however, not restrain ourselves from observing that the Mashirnama (Exh.9) which is said to be prepared at the pointing of appellant should have been attested by respectable inhabitants of the locality and that having not been done, the act of the police is clearly violative of the provision of section 103, Cr.P.C.
15. We are constrained to observe that the two Investigating Officers namely, Ghulam Haider, S.I.P.
And Fateh Muhammad, S.I.P. Have grossly misconducted themselves during investigation. The most important witness Mst.Rubina is not even cited as a witness in the challan although her statement under section 161 of Cr.P.C. Was recorded by the police, as has come in evidence of S.I.P. Ghulam Haider. No part at any stage during investigation was played by a Magistrate, as neither 164, Cr.P.C.
Statements of the P.Ws. Were recorded nor any identification test was held. Yet in the challan Muneeruddin Qureshi, A.C.M. VII South is named as witness No,2. In the challan as many as 16 witnesses are named most of whom are either unconcerned or irrelevant and only four witnesses were examined at the trial. What was most necessary for the police was omitted and what was unnecessary was done. The testimony of the two senior police officers which is not above board and which has gone uncorroborated cannot be relied upon as held in the case of Allah Rakha v.
The State (1985 SCM R 453).
16. The appellant was involved in a heinous offence and the investigation of such a case in particular should have been carried most diligently and honestly. Both the Investigating Officers have not followed the set standards of investigating the case. Even the presiding officer did not conduct the trial in a responsible manner but he proceeded in slip shod manner and seemed very anxious to announce the judgment. The conviction and sentence in such circumstances cannot be sustained.
17. As a result of the above discussion, we set aside the conviction and sentence but remand the case to the learned trial Court with directions (a) to examine Mst.Rubina wife of Jamil Dada Bhoy, the only eye-witness of the incident; (b) to give full opportunity to the accused to examine the defence witnesses and in case the accused desires the witnesses to be summoned through the Court, appropriate steps shall be taken for procuring the attendance of such witnesses; and (c) the prosecution may examine any other witness out of the list of witnesses named in the challan. It is expected that the trial Court shall expeditiously conclude the proceedings and pass fresh judgment.