' GHULAM NABI SOOMRO, J.---The appellants Muhammad Aamir and Ghazanfar Abbas have through their separate appeals assailed the conviction and sentences mentioned below:--
(i) Both accused are sentenced to undergo R.I. For 10 (ten) years for offence under section 7 of the Anti-Terrorism Act, 1997 read with pections 392/492/34, P.P.C. And pay fine of Rs,5,000 (Rupees five thousand) each. Fine, if recovered shall be deposited in the Government Treasury. In default thereof they shall undergo S.I. For six months more.
(ii) Accused Muhammad Amir is further sentenced to undergo R.I. For (10) years for offence under section 412, P.P.C.
' The sentences would run concurrently passed against them by the learned Anti-Terrorism Court No,IV, Karachi, vide its judgment, dated 28-11-2000. Since both these appeals arise out of one and the same judgment, we would like to dispose of the same by this one and common judgment.
2. The prosecution charge against the appellants, for which they were tried and convicted is as follows:-- ' That on 15th day of March, 2000 at about 20-30 hours, you both along with absconding accused Rizwan Rasheed in furtherance of your common intention snatched a taxi No,PG-5220 by showing toy pistol to driver Muhammad Shamshad and also snatched Rs,70/80 from his pocket and fled away from scene when he turned from New Town Chowrangi towards PIB Colony and reached opposite to Karachi Centre and thereby you have committed an offence punishable under section 7 of the Anti-Terrorism Act, 1997 read with section 392/34, P.P.C. Within the cognizance of this Court.
' I further charge you accused Muhammad Aamir that on 16th day of March, 2000 at about 18-30 hours police arrested you and recovered taxi No,PG-5220 from your possession and thereby you have committed an offence punishable under section 412, P.P.C., within the cognizance of this Court.
' And I hereby charge you that you be tried by this Court on the aforesaid charge.
(Sd.) Khan Parvez Chang, Anti-Terrorism Court No,IV, Karachi.
3. It was contended by the learned counsel that the complainant who is the star prosecution witness and victim having been deprived of his vehicle has not supported the prosecution case at all he has categorically stated that the person whom he had identified during identification test parade was not masent in Court. It was further argued that the learned Magistrate had not noted the mark of identification of the person claimed to have been picked up in the identification parade test, nor any special features marks of identification or N.I.C. Numbers of that person were noted taken in custody. Further that person was also not assigned any role by the identifying witness. It was further contended that the remaining P:Ws. Were formal and were policemen including the Mashirs. It was then urged that even if the evidence of the Magistrate is believed, the same would not be sufficient for conviction, as his evidence is only corroborative in nature. It was vehemently urged that in absence of reliable substantive evidence on record the conviction would not be based upon any corroborative piece of evidence. Reliance was placed upon 1975 PCr.LJ 1054 (Karachi).
4. On the other hand the learned A.A.G. While opposing the appeal contended that the evidence of the Magistrate is sufficient for recording conviction of the appellants. He was not alleged to be hostile to appellant Ghazanfar Abbas.
5. There is no denial of the fact that complainant Muhammad Shamshad was the only star-witness who has not supported the prosecution case. He does not implicate any of the appellants at all.
The Magistrate who supervised the identification test parade has deposed that identification marks of the accused were not mentioned in the memo. Of identification parade and has further stated that he did not remember the features of all the three accused persons who were put to identification parade before him and that he did not even remember the colour and the type of clothes being worn by the two appellants. He even concedes that the dummies were arranged by his Court staff. The rule emphasizes that identification test parade should be exclusively under the supervision of the Magistrate which would include the arrangements of dummies etc. So as to avoid possibilities of false implication of the accused.
6. Under the above circumstances, we find that the learned Magistrate had not conducted the identification test parade with due care and caution as required by rules. The alleged recovery of toy pistol, which was allegedly used in the commission of offence, cannot be helpful to the prosecution case. Besides P.W. A.S.-I. Muhammad Nasir has stated that appellant Aamir was in police custody on 15-3-2000 which is another fatal blow to the prosecution case against appellant Amir as the taxi is shown to have been recovered by the police on 18-3-2000.
7. In view of the above, we have arrived at the conclusion that the case of prosecution is doubtful one and the same has not been proved beyond any shadow of doubt against the appellants.
Accordingly, we allow the two appeals, set aside the conviction and sentence of the appellants and giving benefit of doubt, we acquit the two appellants. They are in custody and are ordered to be released forthwith if not required to be detained in any other case.