1. ' ABDUL RAHIM KAZI, J.--- By this common judgment we intend to dispose of these three appeals and the Criminal Revision Application as the same arise out of the same F.I.R. And the conviction was awarded through the same judgment. The present three appeals have been filed by appellants Manzoor Ali son of Hazari Khan and Abdul Hameed son of Faqir Muhammad while the revision application has been filed by Lal Muhammad son of Mir Dad Karim for the release of the vehicle which is involved in the case.
2. ' Briefly the facts are that on 7-9-1991 complainant Muhammad Sharif submitted a statement in writing to the S.H.O. Police Station, Defence, Karachi to the effect that on 6-9-1991 at 12-30 p.m.
3. When his younger brother Saleem the abductee was present in the house that a call was given from outside whereupon the complainant's servant Qanoon Khan opened the door and found one dark blue coloured swift vehicle parked at the gate. Two men are said to have been sitting on the rear seat while one was at the steering and one man was standing outside who asked the servant to call Saleem. The said servant had informed the kidnapee Saleem, who sent him back to enquire about names of visitors. The servant again came back and said that he was told that his name was Aslam. On this Saleem said he will meet the man and came to the gate and again asked about the name from inside and on being told by the visitors that his name is Aslam, Saleem came out, embraced the visitor and also shook hand with him. He also shook hands with the man at the steering wheel and at their instance sat in the rear seat of the vehicle and went away with them telling the servant to inform his father that he was going to Bazar with his friends. This incident is also said to have been witnessed by the driver Bashir Ahmed, who also informed the complainant that the person sitting at driving seat used to come and meet with the abductee. However, the complainant stated that at about 2-30 p.m. a message was received on telephone that his father should remain with the phone as they want to talk with him. Again at 6 O' Clock a telephone call was received to the effect that the father of the complainant, who had received the telephone should get released their man. The telephone again rang for the third time at about 7-30 p.m.
4. Which was received by the father of the complainant who was told by the caller that Saleem was with them and they should make arrangements for money to get him released otherwise his life is in danger. Thereafter, the complainant party made search of Saleem at their own but no clue was found and, therefore, on the next day the said statement in writing was given at the police station which was incorporated as F.I.R. Under section 154, Cr.P.C. By Muhammad Khalid Khan S.I. Posted at Defence Police Station. The police started investigation. However, it is alleged that they learnt from the complainant that the caller had demanded Rs,50 crore by way of ransom which was ultimately settled at three lacs and the complainant party having paid Rs,1,50,000 the abductee was released and the remaining balance was promised to be paid but was not paid as the accused had been arrested by the police by that time. The police after due investigation sent up the challan wherein the two appellants Manzoor Ali and Abdul Hameed alongwith three co-accused namely, Pir Muhammad, Muhammad Murad and Faqir Muhammad were sent up while the seven accused were shown as absconders. The charge was framed on 9-3-1992 under section 365-A/34, P.P.C. To which the accused pleaded not guilty. The Court examined Dhani Bux, the Additional City Magistrate, who had recorded the deposition of witnesses under section 164, Cr.P.C. And also conducted the identification parade. Thereafter, the prosecution examined complainant Muhammad Sharif, S.I.P. Muhammad Khalid Khan who had recorded the F.I.R. The prosecution also examined Muhammad, another brother of abductee. Thereafter, the abductee Muhammad Saleem and his father Abdul Sattar, who is said to have paid the ransom money was also examined. Thereafter, the prosecution examined Muhammad Akram Masood, who was the Investigating Officer till 9-9-1991. The prosecution then' examined Bashir Ahmed, the driver and Muhammad Farooq, S.H.O. And Investigating Officer who took over on 15-9-1991. The statements of all the accused were recorded who had denied the allegations of the prosecution. They-have claimed that they are innocent and poor labourers of villages around Karachi and have been falsely implicated in the present case. The trial Court thereafter having heard the arguments of the counsel was pleased to hold the present appellants Manzoor Ali and Abdul Hameed guilty, convicted them under section 365-A, Cr.P.C. And sentenced them to undergo life imprisonment.
5. The absconding accused were also convicted and sentenced is above while the accused Pir Muhammad, Muhammad Murad and Faqir Muhammad were acquitted. Being aggrieved the appellants has preferred the present appeals.
6. ' We have heard, Mr. Muhammad Ibrahim Abbasi, learned counsel for the appellants, Mr. Muhammad Sarwar Khan, A.A.-G. And Mr. Abdul Waheed Katpar, learned counsel for the applicant in the Criminal Miscellaneous Application.
7. ' At the very outset the learned counsel for the appellants has urged that the judgment of the trial Court though quite lengthy shows that the conviction has been awarded merely for the reasons of identification made in Court by the abductee and P.Ws. According to the learned counsel for the appellants the judgment mostly contained all reproduction of the deposition of the witnesses but very little reasoning. At the very outset the learned trial Court, in the judgment has observed that the point for determination in the case is whether that:-- "Whether the five accused in Court alongwith absconding accused on 6-9-1991 at about 12-30 noon abducted Muhammad Saleem from his Bungalow No,56-B, South Circle Avenue, Defence Housing Society, Karachi in furtherance of their common intention for the purpose of getting ransom, in the way and manner as alleged by the prosecution."
8. ' The learned counsel for the appellants has taken us through the evidence and has submitted that there are material contradictions and inconsistencies in the evidence of the witnesses and, therefore, the very manner in which the alleged kidnapping is said to have taken place has been belied. He has further submitted that the investigation as held in the present case smacks of callousness and dishonesty. He has referred to the deposition of P.W. Muhammad Akram Masood, who was the S.H.O. And Investigating Officer in the case till 9-9-1991 when he was transferred.
9. According to his deposition he was present at the police station on 6-9-1991 where he was holding the charge of the S.H.O. And that he received a phone call from the present complainant who told him that his brother Saleem in the morning had gone in a .Car and while going he told the servant that he is going with friends and he had not returned back. From this the caller expressed his doubt about abduction of his brother and on receiving this information the said witness visited the bungalow in the Defence. Now this clearly shows that not only the S.H.O. Was informed on 6-9-1991 about suspected abduction of Muhammad Saleem but he also visited the scene of offence from where the abduction was made as in his cross-examination he has admitted to have visited the bungalow in the afternoon between 2-00 and 5-00 p.m. The abduction under section 365-A, P.P.C.
10. Is a cognizable offence but the said Police Officer did not record any F.I.R. To this effect on that day.
11. Not only this but the prosecution has failed to produce any entry from the daily diary of the police station showing that the said S.H.O. Had left for the bungalow to inspect the scene of offence. No such entry has even been made regarding the offences which are non-cognizable offence. It is an admitted position that the memo of place of incident was prepared on the next day. However, in the cross-examination the S.H.O. Denies that the date of preparation of memo. Was put subsequently. We have examined the original memo. Produced in the trial Court as Exh.24 which is written in one ink while the date. Put under the signature of S.H.O. Is in a different ink than the one.
12. With which the memo. Is written and signed by the S.H.O. And the Mashirs. The memo. Does not bear any date on top of it. The trial Court has also noted this fact and mentioned the same in the deposition of the S.H.O. Muhammad Akram Masood. One fact which appears to us is that the said date has been put in with the same ink in which the pages "No,151" and "9" have been put on this Mashirnama which is obviously done by the office of the trial Court. However, the S.H.O. In his cross- examination has admitted that this memo. Was prepared on the next day which would be 7-9-1991.
13. It may also be observed that Muhammad Qanoon is the servant of the complainant, who had responded to the call when the said visitors had come and in whose presence the abductee had gone out and met with the accused by embracing one of them and shaking hands with other as disclosed in application (Exh.20) made by the complainant to the S.H.O. The same statement also shows that it was this witness to whom the abductee himself had told that he was going to bazar with friends. This application further points out that the driver Bashir Ahmed had seen the said incident and disclosed to the complainant that the accused who was sitting on the driving seat used to come and visit said Saleem. However, these facts do not find place in the deposition of any of the witnesses although the complainant in his deposition has admitted that this application had been made by him. The only inference from the above facts would be that the persons who came on that fateful day and with whom the abductee had gone were already known to him and obviously were his friends. Now, under what circumstances and how the abductee came to be in the custody of the accused as alleged by the prosecution cannot' cannot be understood. There is nothing on the record to show if any effort was made by the police or the prosecution to get the attendance of this servant Muhammad Qanoon. However, the record shows two statements at Exh.44 to the effect that one Muhammad Ashraf, who used to reside in P.E.C.H.S. Has gone to Dubai.
14. There is another statement signed by the S.H.O. Muhammad Farooq showing that the said witness Qanoon Khan has shifted to some unknown place. He has, however, not produced any statement of the witness of the locality in respect of the said Qanoon Khan. Now, we take up the most important and vital point in the case i,e, identification of the accused. As regards the identity of the persons involved in kidnapping of the applicant is concerned, these are the three P.Ws. Namely, servant Qanoon Khan, driver Bashir Ahmed and abductee himself. The fourth witness of identification is P.W. Abdul Sattar the father of the abductee who is said to have paid ransom. First, we will take up the evidence of P.W. Bashir Ahmed the driver. According to the application moved by the complainant at Exh.20, P.W. Bashir Ahmed the driver had seen the incident when the accused had come at the door of the bungalow and given the call. This application shows that this witness has pointed out that the person who had given his name as Aslam used to visit abductee Muhammad Saleem and, therefore, obviously this witness should have been conversant and able to identify him if he was amongst the accused persons in Court. This witness, however, did not identify any of the accused although the Court had allowed him opportunity to go close to accused but yet he was not able to identify any of the accused. The accused were put to identification test and the memo. Of identification test has been produced as Exh.13. In this memo.
15. Exh.13 this witness is shown to have identified co-accused Pir Muhammad only. Thus, it can safely be said that present appellants were not amongst those who had kidnapped the said Muhammad Saleem. The other witness P.W. Abdul Sattar is the father of the complainant and abductee and he is said to have paid ransom amount of Rs,1,50,000 to one of the accused. He was also one of the witnesses at the identification parade of the accused and is shown to have identified only accused Pir Muhammad as disclosed in memo. Of identification Exh.13. In this very test accused Muhammad Murad was also lined-up but he was not identified by this witness. However, in Court this witness has identified accused Muhammad Murad to be the person to whom he has paid the amount of ransom. As regards the identification test this witness denies a suggestion that he did not identify co-accused Muhammad Murad in identification parade. This witness further in his cross- examination has stated that he had seen accused at about 12 O'clock in the noon when they were brought by the police in Court for identification parade and the police informed him that responsible had arrived in Court and the accused were pointed out to him by the police and that identification parade was conducted after about two hours after the arrival of the accused. This piece of evidence would show two things. Firstly, that the accused were shown to the witness Abdul Sattar before the identification parade and secondly that the identification parade had been held at about 2-00 p.m. As against this Dhani Bux the A.C.M. Who recorded statements of witnesses under section 164, Cr.P.C. And supervised the identification parade states that he had held the identification parade before Zohar prayer on the second day and recorded the statements under section 164 after Zohar prayer. The A.C.M. Further states that in those days the time of Zohar prayer was 1-15 p.m. Now, the statement of P.W. Abdul Sattar clearly belies the statement of A.C.M. Thus, it stands established from this piece of evidence that in any case the accused were shown to the witness before the holding of the identification parade. Thus, the identification parade held in the present case on the face of it would not be of any use. Even otherwise identification made by these witnesses cannot be relied on as in the identification parade they identified only co-accused Pir Muhammad and not co-accused Muhammad Murad but in the Court he identifies otherwise.
16. ' Now, we take up the evidence of identification given by the kidnapee. Before taking up identification we would first point out to the evidence of this witness. According to this witness he did not know the persons who had called him on the fateful day and abducted although the driver Bashir Ahmed who admittedly witnessed the incident states that the person who had come out of the car and gave his name as Aslam had been previously visiting the abductee. In the written complaint (Exh.20) it is pointed out that the abductee has embraced with the man and also he shook hands with person sitting on driving seat and that abductee had told the servant to inform his father that he was going to Bazar with friends. All these facts show that the said person was friendly with the abductee and that even before the identification parade was held, the abductee could have given the name of that person or other inmates of the vehicle to the police but the same were not given. This fact raises a doubt and it appears that the facts as alleged by the prosecution are not true and correct facts. Even if it be accepted that the kidnapee was abducted then also it has become doubtful on this evidence and the evidence of kidnapee which we are to discuss that the same had not taken place as alleged. The abductee is obviously playing in the hands of the police and has not come out with true facts. In Court the abductee has stated that he was first taken to one place where he was confined for six days and thereafter he was shifted to another place where he was confined for ten days. Investigating Agency has prepared the memo.
17. Regarding these two places, which has been brought on record as Exhs.26 and 27, at the pointation of accused Pir Muhammad. The said memos. Are also signed by the abductee. These two memos.
18. State about the houses of accused Manzoor Hussain and Mubarak respectively but do not point out in detail as to the exact situation of the houses, identifying numbers or surroundings of the houses and also do not show as to how many rooms were in the said houses and in which of the rooms the abductee was kept. The prosecution has relied on the identification made by .The abductee in Court. The abductee was also amongst witnesses who were to identify the accused in the identification parade. The memos. Of identification parade shows that he had identified accused Pir Muhammad, Muhammad Murad, Faqir Muhammad and the present two appellants.
19. However, except the present appellants the other three co-accused were acquitted. It is said that the same Magistrate, who supervised the identification also had recorded the statements of the witnesses under section 164, Cr.P.C. The abductee Muhammad Saleem in his evidence in Court states that his signatures were obtained on a blank paper and that his statement was not recorded in presence of A.C.M. As regards the identification this witness states that "there were few persons who were blindfolded present in Court room but no row or line was formed and I had not identified any person from that line". No A.C.M. Was sitting in chair in Court. The only police persons told that responsible culprits in my case had been arrested. I had not identified anyone from these persons in I.P. I had not identified any of the five accused responsible for my abduction for ransom.
20. If there is any such I.P. That has not been conducted in my presence. I was taken by the police from my house on 1;11-1991 by the Inspector M. Farooq, who told that he will show me the places where I was detained by the culprits and he showed me those places". In the last line of examination-in- chief he states that he was examined by police and not before any Magistrate. In cross- examination this witness states that the places where he was detained was a room measuring 6 x 10 in the case of first place and in a small quarter in case of second place. The above statement of the witness clearly demolishes the prosecution case with regard to identification parade held and the statement recorded under section 164, Cr.P.C. On the basis of this statement it can safely be concluded that no identification parade was held in presence of the Magistrate nor any such statements were recorded but these documents are manoeuvred by the police. This also shows that the two places where abductee is alleged to have been detained were shown to the abductee by the police. The memo. Of the two places prepared by the police does not show the dimensions of the said places as given by this witness in his deposition.
21. ' The conclusion that can be derived from the above discussion is that the prosecution has not been able to prove the fact of the identification made by these witnesses. It may also be observed that the prosecution has also not been able to prove the places of detention of the abductee. Now, we refer to the judgment of the trial Court. The judgment shows that the trial Court had totally ignored the alleged identification made by the witnesses in presence of the Magistrate but has relied on the identification made in Court. The abductee has identified the present two appellants as the persons who had been supplying meals to him and on this evidence the appellants have been convicted while the three co-accused persons in Court, namely, Pir Muhammad, Muhammad Murad and Faqir Muhammad have been acquitted. Now if a reference is made to the evidence of P.W. Abdul Sattar, the father of the abductee it will be seen that in Court he had identified co- accused Muhammad Murad to be the person who received ransom from him. Not only once but he has identified the said accused twice. Yet the trial Court had acquitted the said Muhammad Murad. The deposition of this witness shows that after the conclusion of his evidence the trial Court has put him a question "are you 100 per cent. Positive about the identity of Muhammad Murad who received ransom from you and you correctly identified him". The answer is "perhaps accused Muhammad Murad is the same person". The above conduct of the trial Court shows that it was because of this question of the trial Court that the witness waivered.
22. ' Reverting back to the deposition of abductee it may be observed that in cross-examination he has stated that he is a short sighted person since his childhood and uses spectacles which he had lost at the time of his abduction and had been without the same all along till he was released by the accused. He admits that he is unable to see perfectly beyond a distance of ten feet. It may also further be observed that the A.C.M. Dhani Bux in his cross-examination has stated that "it is correct that witness Saleem was hesitant and in state of confusion of mind at the time of identification of each of the accused which were five in number but the sixth accused was not identified by him. All the above discussion clearly establishes that no proper identification parade was held nor any identification as alleged was made by the witnesses. As regards to identification made by the abductee in Court, the same would also A not only be doubtful because of his short sightedness but because of the fact as discussed above that he was previously shown the accused and pointed to him by the Police. We, therefore, are not inclined to rely on the same identification.
23. ' There is yet another aspect of the case. The accused were arrested by the police through a common memo. Of arrest which also shows the recovery and seizure of weapons from the present appellants and also other co-accused for which all of them were sent to stand trial for possessing unlicensed arms in separate cases. The learned counsel for the appellant has made a statement at the bar that they all have been acquitted in these cases which fact has not been controverted by the State. It may further be observed that the abductee and P.W. Bashir Ahmed are already being prosecuted for perjury at the instance of trial Court which cases were pending at the time the judgment was announced. How can such witnesses then be relied on. The learned State counsel has vehemently argued that in such cases it is not necessary to hold an identification parade but the identification made by the witnesses in the Court can be relied on and would be sufficient for recording conviction. He has placed reliance on the case of Muhammad Yousaf Zai v.
24. The State PLD 1988 Kar.
539. In this case a Division Bench of this Court had held that identification test of an accused is not a legal requirement and if the eyewitnesses can identify the accused before the trial Court that is enough. A careful reading of the above judgment would show that in this case P.Ws. Who identified the accused had enough opportunity of having seen him on not less than six occasions. It is observed in the judgment that the appellant had visited the bank not only at the time of opening of the account but had also visited five times while withdrawing the amount through five cheques during a short span of 12/13 days. As against this the learned counsel for the appellants has placed reliance on the case of Kak alias Abdul Razzak v. The State PLD 1965 (W.P.) Kar.
31. Wherein it is held by Division Bench of this Court that the prosecution witness who was not acquainted with the accused prior to occurrence, his evidence as to identity of accused would not be of much value in case where identification parade was not held. Similarly in the case of Zulfiqar Ali v. The State 1993 PCr.LJ 168 a Division Bench of Lahore High Court has been pleased to hold that a witness must recognise an accused correctly in the identification parade held under the supervision of a Magistrate before his evidence could be relied upon for conviction and mere identification of an accused before the Court per se has no legal value. In the same case it has been held that one tainted piece of evidence cannot corroborate another tainted piece of evidence. Also in the case of Muhammad Binyamin alias Bunoo and 7 others v. The State 1991 PCr.LJ 1217. A Division Bench of Lahore High Court has been pleased to hold that:- "As far the main crime of dacoity in the house of Muhammad Nazir P.W., we feel that no exception can be taken to the acquittal of the appellants of the charge under section 395/397, P.P.C. For the reasons that although the appellants were not previously known to the complainant and the eye- witnesses and their names were not mentioned in the F.I.R., yet no parade for their identification was held in this case. So, it cannot be said with judicial guarantee that the appellants and none else had committed the dacoity in the house of Muhammad Nazir P.W. In order to give benefit of doubt to an accused person, it is not necessary that there should be more than one reasons/circumstances. If there is one circumstance, which creates a reasonable doubt in a reasonable and prudent mind about the identity of the accused, that may be sufficient for his acquittal."
25. It is settled law that the onus to prove the case against the accused lies on the prosecution and all that the defence is to do is to make a dent in the case of the prosecution. In the present case the above discussion would amply show that the defence has succeeded in making such a dent. Of course, section 8 of the Suppression of Terrorist Activities (Special Courts) Act provides for shifting of the burden to accused but that will be only in case where the prosecution has been able to prima fade establish that the accused are linked with the commission of the offence. In the present case neither the abductee has been recovered from the accused nor the ransom money has been recovered from them. No other incriminating evidence except the weapons have been recovered and as regards the weapons the accused stand acquitted by the competent Court of law. Thus, we are of the view that the prosecution has failed in proving the case against the accused and we would, therefore, acquit the appellants. The judgment of the trial Court and the conviction awarded are set aside. The appellants shall be released forth with if not required in any other case. We also allow Criminal Miscellaneous Application No,628 of 1993 and direct that the surety be discharged and papers be returned to the applicant.
26. ' The above are the reasons for the short orders announced in Court on 11-8-1994.