JUDGMENT ABDUL RAHIM KAZI, J.- This appeal has been filed challenging the judgment passed by Special Court for Suppression of Terrorist Activities Larkama in special case No. 215/92 whereby the present appellants were convicted u/Ss. 365-A and 149, PPC and sentenced to death. It was also ordered that their properties movable and immovable be forfeited and from the amount of sale proceeds a sum of Rs. 3,50,000/- be paid to Abdul Khaliq abductee while Rs. 65,000/- be paid to another abductee Abdul Wahid and the rest of the amount be appropriated to Government of Sindh. Briefly the prosecution case is that Abdul Salam Arain (complainant) owns Sindh Rice Mill near village Chooharpur where he alongwith his son abductee Abdul Khaliq used to run the business of paddy and rice. It is alleged that abductee Abdul Wahid works as their Munshi/clerk amongst the other staff and labour." It is further alleged that on the day of incident they alongwith other members of staff were present at the mill, when at about 12-45 they sighted one white coloured car, which came within the premises of the Mill and stopped near the office. Four culprits, each armed with a KK, got down from the car while fifth remained in. The car holding steering. Two among those for culprits entered the office and forcibly dragged P.AVs. Abdul Khaliq and Abdul Waheed but of the office while two others remained at the entrance door of the office, It is further alleged that the culprits put these two PWs. In the car on gun-point and drove away towards eastern side. The complainant Abdul Salam Arain then alongwith his labour staff went to police post Mahota of police station Dhamrah where his 154 Cr.P.C, statement was recorded by the incharge vide entry in daily diary at S. No. 4, which was sent to police station Dhamrah for incorporating the same in 154 Cr.P.C, book through some police constable while the other police chased the culprits but to no avail. The AS1 Muhammad Ibrahim incorporated the FIR of complainant in 154 Cr.P.C, book vide Cr.
No. 32 of 1992 and then despatched the copy of the FIR to SHO alongwith original-statement to SHO who was reported to be present on wardat and inspected the same on pointation of complainant in presence of two mashirs, and prepared such memos. It is further alleged that the culprits took the abductees in the car for some distance and then took them towards forest by foot after crossing the river Indus and were- detained for sufficiently long time. The culprits maltreated the PWs. In order to get ransom letters in the names of their parents. After about 40/45 days PW. Abdul Waheed was released by the culprits after accepting ransom of 65,000/- from his parents while PW. Abdul Khaliq was released after about 2 months on receipt of ransom of Rs. 3,50,000/- from complainant. Thereafter the I.O. Learnt about the detention of 'the present appellants at Nodero police lock-up, he arrested them on lst and 2nd October, 1992 and put them to identification test on 3.10.1992 and thereafter completing the investigation sent-up the challan while others were showed as absconders. The ASI Ghulam Mustafa, process server has been examined as Ex. 2 and order u/S. 512, Cr.P.C, was passed against the absconding accused. Charge was framed u/Ss. 365-A and 149, PPC to which the two accused pleaded not guilty and claimed trial. The prosecution examined, in all 10 witnesses including abductees. The prosecution then closed their side. The statement of accused was recorded u/S. 342, Cr.P.C, wherein they denied the allegations made against them and claimed that they have been implicated in the case on account of enmity with the police. The Trial Court after hearing the arguments settled the following points.
Point No. 1. "Whether the culprits abducted P.Ws: Abdul Khalique and Abdul Waheed on the day of incident form the Rice Mill with no other purpose except to obtain ransom from them or their relatives for their release?"
Point No. 2. "Whether the culprits were armed with deadly weapons and were five in number and received ransom of Rs. 3,50,000/- and 65,000/- for release of the abductees respectively?"
Point No. 3. "Whether the accused or any of them is guilty of offence charged against them?"
The Trial Court thereafter passed the above said judgment and convicted and sentenced the appellants as discussed above. Being aggrieved the appellants have preferred this appeal.
2. We have heard Mr. A.Q. Halepota, learned counsel for the appellants and Mr. Sarwar Khan, AAG for the State. Learned counsel for the appellants has taken us'' throughout the paper book. At the very outset the learned counsel has argued that this is a case where no direct evidence in available nor any recovery is said to have been made from the said appellants. He has pointed out that the only piece of evidence available against the appellants is the identification test and oral testimony of the two abductees. Learned counsel has argued that in this case the. Very identification test has not been held in accordance with law and is a dubious one which cannot be relied on. The learned counsel has referred to the FIR wherein the names of the accused do not appear. He has pointed out that according to FIR the complainant was sitting at his Rice Mill with his son Abdul Khalique and others including Abdul Waheed when at about 1245 hours the culprits came in a white car. According fo the evidence of the complainant two of the culprits entered the mill and dragged away his son Abdul Khalique and Munshi Waheed Ali from the office and abducted them. However, in his cross-examination he has admitted that 2/3 days after the incident he came to know that the names of two culprits were Raja Mugheri and Pasha Khorkhani, the present appellants. He has also admitted in his cross-examination that there was a general rumour in public that these were the persons who had abducted the son and Munshi of the complainant. It may also be observed that the abductee Abdul Khalique in his evidence has stated that he was sitting with his father in the mill when the two culprits came there to abduct him and that at that time they disclosed their names as Abdul Karim alias Raja and Abbas Ali alias Badshah while 2 others who were standing outside were Imdad Chandio and Majeed Chandio. According to this statement the names of the culprits were disclosed at the very time in presence of complainant but yet the complainant did Hot mention the names of the culprits in the FIR. Again it may be observed that according to prosecution case Abdul Waheed one of the abductes was released by the dacoits and his statement u/S. 161, Cr.P.C, was recorded on 19.5.1992. According to this abductee he had given the names of the dacoits in his statement / recorded by police. The other abductee Abdul Khalique in his evidence states that he was released by decoits 10/12 days after the release of Waheed Ali. This means he was also released in the month of May, 1992 and his statement was also recorded by police and he knew and disclosed the names of the culprits but yet no action has been taken by the police to arrest the said accused. According to this evidence it can safely be assumed that at the time of abduction or within 2/3 days thereafter the names of the culprits were known to the complainant and obviously the prosecution has not come forward with explanation as to why for 6 months no action was taken to arrest the said culprits. Evidence of ASI Ghulam Mustafa Ex. 2 would show that another co-accused Latif Mughairi was arrested and has been in police custody but yet he was not challaned in the present case for the reasons best known to the investigating agency. In these circumstances, it is obvious that the prosecution has either deliberately avoided to act promptly in the case or the evidence has been manipulated against the present appellants. One fails to understand as to why for a period of 6 months. The investigating agency was just lying low without taking any action in the matter although the identity of the culprits was known. According to I.O., as he disclosed in his evidence, he was informed by the law enforcing agencies that the two appellants were in police lock-up at Nodero police station and he went there to arrest them. However, appellant Abbas Ali alias Pasha was arrested on lst October while the other appellant was arrested on 2nd October, 1992. One also fails to understand as to why both of them were not arrested on the same day. The learned AAG has placed reliance on the evidence of P.W. Imdad Ali who according to him had identified the accused in Court. It may be observed that this P.W. Imdad Ali is not the witness of the identification parade.
All this goes to show that it was only after the arrest of the present appellants that the investigating agency came into motion and then manipulated rather managed the evidence to suit the present case. In these circumstances, we are of the opinion that a serious doubt is raised in the present case as to whether the, present appellants were factually involved in the case.
As regards the identification reliance may be placed on the case of Khadim Hussan v. The State (1985 SCM R 721) wherein it has been held:- "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in a Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."
Also in the case of Mahmood Ahmed and 3 others v. The State (1995 SCM R 127) their lordships have been pleased to hold that picking up of the accused in the identification parade without describing the roles played by them in the crime was illegal rendering the proceedings unreliable and having no evidentiary value. In the same case the accused were acquitted. It may be further observed that preparing the police report of an offence keeping the names of accused open even though their names were available would give rise to the inference that the same was done with the intention to rope any such person whom ultimately the prosecution might wish to implicate. This is the case here.
3. Even identification test itself is a dubious one. The Magistrate Sikandar Ali who has supervised the identification admitted that he has not mentioned the time of holding of the test nor he has given the description of dummies and that his Report contains certain over-writings. According to abductee P.W. Abdul Waheed the accused were in hand-cuffs at the time of identification test while the Magistrate says that he had got the hand-cuffs removed.
4. It may also be observed that FIR was registered in the present case and incident had taken place on 26.3.1992 while the accused were arrested 6 months thereafter on lst and 2nd October, 1992 and the challan was put up on 18.11.1992 i. e. About 48 days after the arrest of the present appellants. The learned counsel for the appellants has argued that this amounts to violation of the provision of section 173 which reads as under:- "(1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the .Officer-in-charge of the police station shall [through the -public Prosecutor]:
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report, in the form prescribed by the [Provincial Government], setting forth the names of the parties, the nature of the information and the names of the persons who appear .To be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the [Provincial Government], the action taken by him to the person if any, by whom the information relating to the commission of the offence was first given:] [Provided that,, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence].
(2) Where a superior officer of police has been appointed u/S. 158, the report shall, in any cases in which the [Provincial Government] by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-incharge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial; Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.'
(5) Where the officer-in-charge of a police station forwards a report under sub-section (1), he shall alongwith the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witness for appearance before him or some other Court on the date fixed for trial.]"
5. The learned State counsel has argued that in view of the provision of section 537, Cr.P.C, the trial would not be affected for non-compliance of the provision of section 173, Cr.P:C. The above said section 537, Cr.P.C, reads as under: -
537. Subject to the provisions hereinbefore, contained, no finding, passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-
(a) of any error, omission or irregularity in the complaint, report by police-officer under Section 173, summons, warrant, charge, proclamations, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission of irregularity has in fact occasioned a failure of justice.
Explanation-. In determining whether any omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
6. The above provision would be applicable to the cases where there is an error, omission or irregularity in the complaint of report by a police officer u/S. 173, Cr.P.C, etc. In the present case, as pointed out above, it is neither an error, omission nor irregularity in such report but it is a matter of non-submission of the report itself which amounts to violation of a statutory provision and, therefore, the trial can be said to have been vitiated.
7. From1 the above discussion we are of the view that the prosecution has failed to prove their case against the appellants beyond any reasonable doubt. Accordingly we allow this appeal and order to set aside the judgment of the Trial Court passed in Special Case No. 215/1992 and also the conviction and sentence , awarded to the appellants. The appellants shall stand acquitted and shall be released forthwith, if not required in any other case. Above are the reasons for the short order announced in Court on 12.9.1995.