1. ' FAlZ MUHAMMAD QURESHl, J.---The appellants have assailed impugned judgment, dated 30-4- 1995 passed by learned Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, in Cases Nos.49 and 189 of 1992, whereby they have been convicted and sentenced to suffer life imprisonment under section 302, P.P.C. And to pay fine of Rs,1,00,000 each or in default in payment of fine each accused to undergo R.l. For three years more. Lf fine is realized from both the accused, half of the same be paid to the legal heirs of the deceased Muhammad Aslam Memon as compensation. Both the accused have been also convicted and sentenced under section 365-A, P.P.C. Read with section 34, P.P.C. And each of the accused has to suffer life imprisonment and confiscation of all their movable and immovable property to the State. They have been further convicted for having committed an offence punishable under sections 392, 34, P.P.C. And each of the accused has been sentenced to suffer R.l. For four years only. All the sentences to run concurrently. Hence this appeal.
2. ' The facts of the prosecution case are that on 24-2-1991 at about 8-45 a.m. Muhammad Aslam Memon, Additional Sessions Judge, Shandadpur alongwith his driver. Complainant Rahim Bux were going from Hala to Shandadpur on their private Car No,334-139 and on the way one another car in which 4 culprits were sitting forcibly got stopped the cat of the complainant and kidnapped Muhammad Aslam Memon and his driver alongwith the car and took them to River lndus and Katcha area, where the car was stuck up in the Katcha land; culprits then removed both kidnapas on foot on the way some villagers on seeing the culprits with kidnapees challenged them and asked them to release the kidnapees but they refused, on which both villagers and culprits started firing. In the meantime the culprits fired at driver and Muhammad Aslam Memon with KKs. Bullet of which hit Muhammad Aslam Memon, who fell down and died due to firing of villagers. One of the culprits also died. The villagers succeeded in apprehending one of the culprits, while the remaining two culprits managed to escape. After a little while police party headed by D.S.P. Also reached there and they apprehended. Accused was killed. The driver was brought at Police Station Saeedabad, wherefrom he reached at Police Station Hala, where lodged report being Crime No,17 of 1999 under sections 365-A, 392, 34, P.P.C. Police also lodged report on behalf of the State being Crime No,8 of 1991 at Saeedabad Police Station under sections 302, 34, P.P.C. As the.Offence of murder of Muhammad Aslam Memon was committed within- the jurisdiction of Police Station Saeedabad.
3. ' Police during the investigation, referred the dead body of deceased Muhammad Aslam Memon for post-mortem, visited the place of Wardat, arrested both the abovenamed accused persons, produced before the Magistrate for identification, where they were identified by the complainant and after completion of investigation Police challaned both the above accused in the abovesaid two cases before the trial Court. Both the cases were consolidated by the trial Court vide order, dated 16-121992, bakd on the application moved by S.S.P. As Exh.3 and also ordered that single charge be framed against the accused and the cases be tried together. The cases are offshoot of one transaction and sentence of the same offence.
4. ' In the first instance, deceased Muhammad Aslam Memon and his driver/complainant were kidnapped within the jurisdiction of Police Station Hala in their own car, therefore, F.l.R. Was registered under sections 365-A, 392, 34, P.P.C. With Police Station Hala being Crime No,17 of 1991, while after kidnapping Muhammad Aslam Memon was murdered by the culprits within the jurisdiction of Saeedabad Police Station, therefore, another F.1. R. Was registered at Saeedabad Police Station being Crime No,8 of 1991 under sections 302, 34, P.P.C.
5. ' During the trial, the prosecution examined complainant Rahim Bux as P.W.1 at Exh.7, who produced F.l.R. Exh.8 P.W.2 Mashir Banho as Exh.9, who produced Mashirnama of identification of accused Ghulam Nabi Shah alias Ghazi Shah as Exh.10; P.W.3 Mashir Muhammad Hashim as Exh.12 who produced Mashirnama of Wardat Exh.13. P.W.4 SIP: Jan Muhammad Exh.14, who recorded F.l.R. As Exh.8, lodged by complainant Rahim Bux at Hala Police Station and also visited the place of Wardat and prepared Mashirnama of Wardat Exh.13. P.W.5 Sikandar All Samejo, Assistant Mukhtiarkar and T.C.M., Hala as Exh.15, who produced the letter of S.H.O. Hala Police Station for identification test of accused Ammer Bux was Exh.16. Mashirnama of his identification as Exh.17; he also produced another letter of S.H.O., Hala 'Police Station for identification test of accused Ghulam Nabi Shah alias Ghazi Shah as -Exh.18; piw.6 Tapedar Ali Muhammad Kaka as Exh.22, who produced the sketch of Wardat in triplicate as Exhs.22-A, 22-B and 22-C; P.W.7 Dr. Nisar Ali Leghari as Exh.23, who produced post-mortem report of deceased Muhammad Aslam Memon as Exh.24. P.W.8 S.l.P.
6. Muhammad Hassan Mallah as Exh,26, who produced Mashirnama of arrest of accused Ameer Bux as Exh.27, and Mashirnama of securing of car of deceased Muhammad Aslam Memon as Exh.28.
7. P.W.9 S.l.P. Ghulam Sarwar Mallah as Exh.29, who only produced accused Ghulam Nabi Shah alias Ghazi Shah before Assistant Mukhtiarkar and T.C.M., Hala for his identification. Thereafter, the learned Special Public Prosecutor vide his statement Exh.30 from the prosecution side.
8. ' Statements under section 342, Cr.P.C. Of both the accused have been recorded as Exhs.31 and 32 in which both of them have denied the prosecution allegations and claimed to be innocent. They, however, neither examined themselves on oath nor led any evidence in their defence, though, opportunity was given to them. The trial Court formulated the following points for determination:--
(1) Whether deceased Muhammad Aslam Memon had died an unnatural death by sustaining fire- arm injuries on his person?
(2) Whether the accused in furtherance of their common intention committed murder of deceased Muhammad Aslam Memon by firing burst at him?
(3) Whether the accused had abducted deceased Muhammad Aslam Memon and his driver complainant Rahim Bux in their car bearing Registration . No,334-139 from Shandadpur/Halalink road?
(4) Whether the accused had also committed the robbery of said car of deceased Muhammad Aslam Memon bearing Registration No,334-139?
(5) What offences, if any, have been committed by the accused?
9. ' Having gone through the evidence adduced by the prosecution and material available on record, the learned trial Judge passed the judgment in terms as stated above.
10. ' We have heard Mr. Syed Madad Ali Shah, learned counsel for appellant Ghulam Nabi Shah, Mr. Muhammad Saleem Hashmi, learned counsel for appellant Ameer Bux and Mr. Muhammad Azeem Panhwar, learned State Counsel. We have given our anxious consideration to the evidence adduced by the prosecution and other material available on record.
11. ' Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah firstly invited our attention on F.l.R. No,17 of 1991 and F.l.R. No,8 of 1991, which are said to have been registered with Police Station Hala and Saeedabad. According to the learned counsel for the appellant Ghulam Nabi Shah both the F.l.Rs, have been written with different crimes with regard to the same incident.
12. First Challan in Crime No,17 of 1991 is said to have been submitted by police on 5-5-1992, whereas the incident is said to have taken place on 24-2-1991 under section 365-A, P.P.C. Read with section 34, P.P.C.; being Case No,49 of 1992; challan has been submitted with regard to Crime No,8 of 1991 on 18-10-1992 under section 302/34, P.P.C. Being Case No,189 of 1992 as the incident is said to have taken place on 24-2-1991. He has further contented that challan has been produced first time on 5- 5-1992 i,e, after one year and one month, which goes unexplained by the prosecution and till that time the accused have remained in wrongful confinement and this very aspect of the case has vitiated the trial and the support of this contention, he has placed reliance on 1996 PCr.LJ 361-503.
13. Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah has further submitted that charge has been amended on 16-12-1992 by the trial Court at page 55 of the paper book and accused Ameer Bux is said to have been arrested on 13-3-1991; he has also drawn our attention to Mashirnama of arrest which is available at page 93 of paper book by contending that there is overwriting with regard to date and time of arrest of accused Ameer Bux. According to him identification of Ameer Bux has been held on 14-3-1991 before Assistant Mukhtiarkar, Hala, which is available at page 76 of paper book. He has bitterly criticized that no Mashirnama of arrest has been produced on record with regard to accused Ghulam Nabi and he has been subjected to identification parade on 22-3-1992 by the same Magistrate, which is available at page 66 of the paper book. Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah has further stated that no challan has been presented after the arrest of Ameer Bux and the same has been presented after the lapse of one year one month according to the contents of the F.l.R. Were villagers at the time of Wardat and they would have been the best witnesses being eyewitnesses but they have not been examined by the prosecution. According to him, they have not been examined by the prosecution with a fear that had they been examined by the prosecution they would have not supported the case of the prosecution; it is not a case of ransom although Rahim Bux kidnapee has supported the case of the prosecution but he has not supported the case of the prosecution on the factum of ransom. No feature description has been described in F.l.R. According to Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah the piece of evidence in the shape of identification test is the ..Eakest type of evidence am cannot be relied upon. Possibility cannot be ruled out that the accused were shown to the witnesses before they were subjected to identification parade and in support of his contention he has placed reliance on 2001 PCr.LJ 964 para.29 at page 971, 2001 PCr.LJ 1146, 1995 SCMR T'LD 1991 SC 447, wherein the Honourable Supreme Court and superior Courts have given benefit of doubt to the accused in that circumstance and when the role of the accused has not been described by the witnesses during the identification parade and such identification parade has lost sanctity. Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah has further cited a case reported in PLD 1996 Kar. 246 wherein a Division Bench of this Court has discussed at length the procedure in holding the identification parade. The Division Bench has held that if the accused has been arrested whose name does not appear in F.l.R. And he is to be identified by witnesses, it is the duty of police to veil his face at the time of arrest, should be taken to police station and when he is lodged in police lock-up the curtain is to be drawn over the lock-up to minimize the chalices of being seen the accused by the witnesses. When such accused is taken for remand he should be taken with veiled face to minimize the chances of seeing them at the hands of witnesses and when accused is taken for identification parade, he is to be taken from the police station to the place of identification parade with veiled face. Ln the present case no such efforts have been done by the police.
14. Moreover, the identification parade has been supervised by Assistant Mukhtiarkar and T.C.M., Hala, who is not competent to supervise such identification parade as held in the aforementioned decision of this Court. Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah has also placed reliance on Lal Pasand's, case reported in PLD 1981 SC 142 and PLD 2001 SC
456. He has al placed reliance on a case reported in 1990 SCM R 308 on the point that the material witnesses were not examined and the benefit of doubt has been given to the accused. He has placed reliance on 1997 PCr.LJ 1628, 1997 SCMR 144.
15. ' Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah argued that as far as Rahim Bux/kidnapee is concerned, he is highly interested witness being servant of deceased Muhammad Aslam Memo, and in order to support his evidence, there is no independent witness and, therefore, independent evidence is lacking. There is no evidence as to when accused Ghulam Nabi was arrested; no role has been assigned to accused. Learned counsel for the appellant has also invited our attention on case diaries dated 5-1-1993 at page 10 of R&P which shows that accused Ameer Bux was represented by Mr. Mukhtar Khanzada, Advocate, who was not present and the case proceeded in the absence of defence counsel of Ameer Bux in a murder case and ransom case. Ln both the offences capital punishment is in store. He has also pointed out from the case diary, dated 22-4-1993 when the case has proceeded in the absence ;1 Mr. Mukhtar Khanzada, who was not present. He also read before us the Lase diary, dated 2-8-1993 at page 19, when Mr. Moinuddin Baloch, Advocate for another accused is reported to be busy before the High Court at Hyderabad and in his absence Mukhtiarkar has been examined, who has supervised the identification parade. At page 20 of the paper book dated 26-8-1993 once again Mr. Moira Baloch, Advocate is absent, yet the case proceeded. Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah has drawn our attention on the judgment at page 122 of paper book wherein the learned Judge has observed that Mr. Moira Baloch, Advocate argued the case but the fact of the matter is that from pages 21 to 45 of case diary, it appears that Mr. Moinuddin Baloch had proceeded for Umra and thereafter, he died there, which is well-known fact to all the Advocates and yet at the time of delivery of the judgment, dated 30-4-1995, the learned Judge has shown the presence of Mr. Moira Baloch, Advocate when he was not alive and this shows that the learned Judge has not applied his judicial mind on the entire case and finally Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah prayed for the acquittal of the accused.
16. ' Mr. Muhammad Saleem Hashmi, learned counsel for the appellant Ameer Bux has adopted the arguments advanced by Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah.
17. ' On the other hand Mr. Muhammad Azeem Panhwar, learned Advocate for A.A.-G. For State has very frankly accepted the illegalities committed by the trial Court. He has further contended that no ransom is proved. F.l.R. Is silent in this regard. There is a defective charge. According to him; there is flagrant violation of section 364, Part 2, Cr.P.C. While recording the statement of accused under section 342, Cr.P.C., there is defect in sentence awarded by the learned Judge and finally do not support the impugned judgment and recordecl his no objection for the acquittal of the accused.
18. ' In the light of the arguments, advanced by Mr. Syed Madad Ali Shah, learned counsels for the appellant Ghulam Nabi Shah and Mr. Muhammad Azeem Panhwar, learned Advocate for A.A.-G.
19. For State, we would like to examine, firstly, the judgment written by the learned Judge without applying his judicial mind and the sentence is defective. The judgment has been written in haste, slipshod manner and the entire evidence has not been taken into consideration by the learned Judge. What we find the another interested aspect of the case that according to case diary at page 10 of the paper book dated 5-1-1993, the case has proceeded when the defence counsel, namely, Mr. Mukhtar Khanzada, for Ameer Bux was absent on 22-4-1993 once again the same counsel was absent and cases proceeded on 2-8-1993. Mr. Moira Baloch, Advocate is said to be busy before the High Court at Hyderabad and in his absence very important witness Mukhtiarkar has been examined who supervised the identification parade of the appellants, on 26-8-1993 there is intimation that Mr. Moira Baloch has proceeded to perform Umra and he died there, yet his presence has been shown by the learned Judge at the time of delivering the judgment dated 30- 4-1995, which leads to inference that the judgment is perfunctory and on the other hand, the case has proceeded in the absence of defence counsel, when their presence is very essntial in view of the fact that accused were booked under sections 302, 365-A, P.P.C. In both the offences, the capital punishment is in store yet the trial has commenced and thus, the illegality has been committed by the learned Judge. Admittedly, at the time of incident, there were villagers and they had witnessed the incident but no efforts have been made by police to examine them in order to strengthen the case of prosecution but no one has been examined except Rahim Bux, who is highly interested witness. Presumption can be drawn that had they been examined by the prosecution, they would have not supported the case of the prosecution. We have also examined the evidence of Rahim Bux/kidnapee although he has supported the case of the prosecution but he has not supported the case of prosecution on the factum of ransom and his alone evidence needs independent corroboration, which is lacking in the present case. Rahim Bux/kidnapee is highly interested witness on two-fold reasons-, firstly, he is the servant of deceased' Muhammad Aslam Memon and Secondly, he has long association with deceased Muhammad Aslam Memon and hailing from his native village; since the prosecution has chosen to try the accused on the charge of capital punishment, it is the binding duty of the prosecution to examine the independent witnesses in order to strengthen its version and to prove its case beyond reasonable doubt but in the present case the prosecution throughout the proceedings is silent/gagged as to why the other villagers/witnesses, who were available at the place of Wardat were not examined by the police. No application has been moved by S.S.P. At the time of trial to summon such material witnesses in order to bring their evidence on record so that the guilt of the accused be proved; names do not appear in the F.I.R. Feature and description do not appear in the F.I.R. Now we are left with another piece of evidence in the shape of identification parade, which has been held after an inordinate delay and there is every possibility that the accused have been shown to the witnesses before they were subjected to identification parade.
20. We have further observed that identification parade has not been held in accordance with the parameters laid down by the superior Courts. We are being fortified by law cited by Mr. Syed Madad Ali Shah, learned counsel for the appellant Ghulam Nabi Shah. There is nothing to explain from the side of the prosecution with regard to the arrest of accused Ghulam Nabi as to when and from where he was arrested; there are two F.I.Rs, of the same incident with different sections: admittedly there is inordinate delay of one year one month in submitting challan against the accused which also goes unexplained by the prosecution; ransom is not proved, F.I.R. Is also silent in this regard; defective charge is also admitted by the learned State Counsel so also it has also been admitted by Mr. Muhammad Azeem Panhwar that there is defect in awarding sentence to the accused.
21. Before parting with the judgment we express our regrets on the conduct of the police officials, who have spoiled the entire case; dishonest investigation has been conducted; no relentless efforts have been made by police officials to examine the independent witnesses of locality, as it is borne out from the contents of the F.I.R. And other material available on record and number of witnesses were present at the time of incident and yet no such witnesses have been brought in the picture to support the prosecution case; Investigating Officer appears to be delinquent, one has to lament that the culprits are acquitted on the silly conduct of police officials. The situation is not likely to improve any Police Department until and unless a new system is ushered in. The case on the face of it appears to riddle the material contradiction; independent evidence is lacking as discussed supra. Benefit of doubt is fore the appellants. Honourable Supreme Court has held in 1995 SCM R 1345 that if single circumstance creates doubt in prudent mind, the benefit of doubt is to be given to accused not as a matter of grace but as a matter of right. The Honourable Supreme Court has further held that in order to award capital punishable to the accused, the independent witnesses must come forward from the side of any impeachable character, reported in 1998 SCM R 25.
22. ' The upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellants. We give benefit of doubts to appellants, conviction and sentence awarded to appellants are set aside. In result, the appeal is allowed, appellants Ghulam Nabi Bux and Ameer Bux shall be released forthwith if not required in any other crime; ' The above are the reasons of my short order, dated 10-7-2001.