' By judgment, dated 24-10-1994 passed in Sessions Case No.122 of 1989, appellant Zameen Gull alias Akhtar alias Sufidad son of Amir Gul was convicted under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, by the learned Additional Sessions Judge, Hudood, Karachi West. The appellant was sentenced to suffer R.I. For ten years, ten stripes and a fine of Rs.20,000 and in default in the payment of fine to undergo further R.I. For six months.
Benefit of section 382-B, Cr.P.C. Was extended to the appellant. Appellant sent this appeal from Jail impugning the judgment of the trial Court. Mr. Usman Ghani Rashid, an Advocate of this Court, was nominated to represent the pauper appellant. Arguments of Mr. Usman Ghani Rashid, learned counsel for the appellant, and Mr. Habibur Rasheed, learned counsel for the. State were heard on 3- 12-1995 and on close of the arguments, by a short order this appeal was allowed. Detailed reasons for the short order are given in the present judgment. With the assistance of the learned counsel, the record was perused including the impugned judgment.
2. F.I.R. No.103/89 was lodged by complainant Khushnud Sadiq at Police Station SITE, Karachi West on 18-3-1989 at 00-05 hours i.e. Just after midnight. According to the complainant, he lives in Gulshan-e-Iqbal, Karachi with his family and is the owner of Petrol Pump on Hub River Road.
According to complaint, five days earlier on 13-3-1989, the complainant was going from his Petrol Pump in his Suzuki with Rs.59,000 in the plastic Theli in the dash board of the vehicle and Rs.22,000 in his pant pocket, but at 8-45 p.m. When he reached the gate of Polytechnic College a white- cultured old car came from behind in which there were four young people appeared to be Pathan in Shalwar and Qamiz. They stopped the car of the complainant and two people alighted from the car and one came on one side of the Suzuki with a dagger in his hand and the other on the right side of the van of the complainant with a revolver in his hand and they demanded Thela with the cash or else threatened to kill him. According to the complainant, thereafter one person sat on the front seat and took out the money from the dash board along with two cheese and the man with the revolver took out Rs.22,000 from his pocket and he was threatened that in case he raised. Hue and cry or informed the police, it would not be in his interest and then they sat in the car and proceeded towards Sher Shah. According to the complainant, on account of fear his condition deteriorated, but later on he felt better and he had come to the police station in the company of his brother Naveed Sadiq for making a report.
3. After completion of investigation, three accused were challenged before the Court, namely, Zameen Gull, Muhammad Zahid and Nawab Khan. One accused Shina was declared an absconder. Accused Nawab Khan absconded during the trial and the trial proceeded against the appellant and Muhammad Zahid, who was acquitted by the impugned judgment. During the trial, five witnesses were examined by the prosecution. P.W.1 is complainant Khushnud Ali, owner of the Petrol Pump; P.W.2 Muhammad Khalil and P.W.3 Sohney Khan are the Mashirs of arrest and recovery of some money from the appellant and acquitted accused Muhammad Zahid; P.W.4 is A.C.M. Abdul Hakeem Rind, who had conducted the identification parade in which the appellant and Muhammad Zahid were picked up by the complainant and P.W.5 is Investigating Officer Amanat Javed Mughal. Statements of the two accused, namely, appellant and Muhammad Zahid were recorded under section 342, Cr.P.C. Both denied the prosecution case as false.
4. In support of the present appeal, Mr. Usman Ghani Rashid, learned counsel for the appellant submitted that there were apparent major contradictions in the evidence of the prosecution witnesses and the identification parade which was held on 1-4-1989 could not be relied upon; Rs.3,000 and Rs.4,000 were alleged to have been recovered in the presence of the two Mashers from the appellant and acquitted accused Muhammad Zahid, but from the evidence of the Investigating Officer and the two Mashers it is apparent that the said money recovered was not part of the robbed money; the car in which the accused were travelling at the time of the incident was not produced; and with more evidence against Muhammad Zahid, the trial Court acquitted Muhammad Zahid, but on evidence which was less weighty, appellant Zameen Guy has been convicted and that the prosecution had miserably failed to establish any case against the appellant. According to learned counsel for the appellant, it is apparent from a perusal of the record that the trial Court had not scrutinized the evidence of the prosecution witnesses.
' Mr. Habibur Rasheed, learned counsel for the State frankly conceded that the prosecution had failed to establish its case beyond reasonable doubt against the appellant and he did not support the impugned judgment.
5. The appellant in this case was not known previously to the complainant and complainant was the solitary witness of the robbery. The incident is alleged to have taken place on 13-3-1994, but the F.I.R. Was lodged five days later on 18-3-1989; the appellant was arrested on 26-3-1989 and the identification parade was held by P.W.4 A.C.M. Abdul Hakeem Rind on 1-4-1989. The entire case of the prosecution depends on the identification of the appellant by the complainant and the recoveries.
6. As regards the identification parade, there are two fundamental weaknesses. First is that the appellant and acquitted accused Muhammad Zahid had been shown to the complainant prior to the identification parade and this was in C.I.A. Centre. P.W.I Khushund Sadiq has stated in his examination-in chief during the trial as follows:- "After some time police called me at C.I.A. Centre for identifying the accused. Police also held identification parade before Magistrate in which I identified accused persons. The identification parade was held for two accused persons and I identified both of them. Accused Muhammad Zahid and Zameen Gul present in the Court are same, I have also identified them in the identification parade held before Magistrate.'
From the above evidence given by the complainant in his examination in-chief, it is evident that the complainant had been called to the C.I.A. Centre for identification of the two accused including the appellant and later on the identification parade before the Magistrate was held. This admission on the part of the complainant destroys the credibility of the identification parade.
' The other formidable lacuna in the identification parade is that the appellant was only picked up in the parade and nothing was stated by him about the role played by the appellant. It may be added that there were two accused that were being identified, namely, appellant and Muhammad Zahid and the two had played different roles in the incident according to the prosecution; it was all the more necessary that the complainant specified the roles played by each of the accused. In this connection, reliance is placed on a recent judgment of the Supreme Court in the case of Mahmood Ahmad v. The State 1995 SCM R 127. Paras. 8 and 9 of the judgment of the Supreme Court are important for the point in question and the same are reproduced:- "The prosecution also relied upon identification parade in which Qamaruzzaman had identified the appellants. The learned Judges of the High Court have relied upon it as a corroborative piece of evidence. We have examined the record of the identification proceedings and find that it suffers from infirmity and illegality. There were 24 persons mixed with the appellants jointly and it seems that on a query from the Magistrate whether the police had got them identified their answer was in the negative and further that they had come with muffled faces. According to the report Qamaruzzaman was called in, who without any hesitation identified Muhammad Safdar, Mehmood Ahmad and Nasir Ahmad and the identification parade ended. It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness. In such circumstances the settled law is that identification could not be relied upon and was of no evidentiary value. Reference can be made to Khadim Hussain v. The State 1985 SCM R 721, where Shafiur Rahman, J. Observed as follows:-- 'It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown ILR 51 Lah. 396 in following words:-- '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 might merely mean that the witness happens to know that accused person.
The principal evidence of identification is the evidence of a witness given in 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'."
' This view was followed in Ghulam Rasool and 3 others v. The State 1988 SCM R 557: "It is, therefore, clear that the proceedings of the identification parade where the appellants were picked up without describing the roles played by them in the crime suffer from illegality and infirmity rendering it completely unreliable having no evidentiary value. Mr. Batalvi contended that as the witness was not asked any question by the Magistrate, he would not have voluntarily stated the role played by the accused. In fact in identification parade except for ascertaining the objection by the accused and that the police had not got accused identified by the witness prior to identification parade, normally no other questions are asked and it is the duty of the witness that while identifying an accused, he may state the role played by him. This procedure becomes more important when there are more than one accused charged of offence attributing specific role played by them in commission of the crime."
No reliance, therefore, can be placed on the identification parade held on 1-4-1989.
7. As regards the recovery, according to the prosecution, out of Rs.81,000 robbed from the complainant, Rs.3,000 were recovered at the potation of the appellant and Rs.4,000 were recovered at the potation of acquitted accused Muhammad Zahid from whom copy of N.I.C. Was also recovered. However, the Mashers as well as the Investigating Officers, when they saw the said recovered money in Court during the trial, stated that the moneys recovered from the two accused did not contain any notes of Rs.500, but according to the note of the trial Court six notes of Rs.500 were available in the property. Then, when the recovery was made, numbers of the notes were not noted and similarly the E complainant also did not give the number of the notes. No reliance, therefore, can be placed on such recovery.
8. It has also been noticed that though the evidence against Muhammad Zahid was more than the evidence against the appellant, the trial Court acquitted accused Muhammad Zahid on the ground that there was no evidence against him. The entire reasoning of the trial Court in its judgment dated 24-10-1994 is reproduced here:-- "I have given my considered view to the arguments advanced before me and I have gone through the entire evidence so far adduced. I find that in this case the evidence of Investigating Officer Mr. Amanat Javaid D.S.P., C.I.A. At Exh.27 and evidence of P.Ws. Muhammad Khalil and Sonay Shah at Exhs.18 and 23 are very much trustworthy and confidence inspiring. These P.Ws. In their respective deposition are very much honest by stating that the incriminating article which is pistol was recovered only from accused Zamin Gul with 4 live bullets, while nothing was recovered from accused Muhammad Zahid, Investigating Officer Mr. Amanat Javaid at Exh.27 and P.W. Sonay Shah at Exh.23 and P.W. Khalil at Exh.18 have mentioned same version regarding the recovery of incriminating article and cash share recovered from the possession of accused Zameen Gull. In the instant case though the complainant Khushnud Sadiq has given the identification evidence against both accused persons namely Muhammad Zahid and Zameen Gull, but since no incriminating article has been recovered from the possession of accused Zahid, he therefore, cannot be connected with the commission of alleged offence. The recovery of incriminating article and recovery of the cash of looted amount has been found in possession of accused Zameen Gull, therefore, accused Zameen Gull is proved to be guilty for the alleged prosecution charge.
' Under the aforesaid position of the case it is very much clear that there is strong evidence of recovery of incriminating article which is pistol and the recovery of looted amount from the possession of the accused Zameen Gull. No any enmity has been suggested against the recovery witnesses who are Mr. Amanat Javaid, Investigating Officer and P.Ws. Messrs. Sonay Shah and Khalil. The evidence of these aforesaid P.Ws. Appear to be very much trustworthy and confidence inspiring and therefore, it can be believed as to be true against the accused Zameen Gul alias Akhtar, whereas there is no any strong evidence of recovery of incriminating article against accused Zahid, therefore, he is proved to be innocent and he cannot be connected with the alleged offence.
' In view of the aforesaid circumstances of the case I hold that in this case there is evidence of identification corroborated by the evidence of recovery of incriminating article and looted amount against accused Zameen Gull. He is, therefore, found guilty under section 17(3) of the Offences Against Property E.H.O., 1979 and whereas accused Zahid is found innocent. The evidence so far adduced from the aforesaid P.Ws. On record is reliable and without any contradiction in this case and can be relied upon. In this connection I refer 1994 PCr.LJ 1009. This point is answered accordingly."
9. From the scrutiny of the evidence produced at the trial it appears that the Presiding Officer had either not gone through the evidence or had not scrutinized the same as required.
10. As a result, Jail Criminal Appeal No.11/K of 1995 is allowed, and the appellant is acqtfitted of the charge.