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Petitioner: GHULAM NABI VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Wahid Bux Brohi, Abdul Ghani Sheikh Title: GHULAM NABI vs THE STATE Case No.: Criminal Jail Appeal No,29 of 1995 Date of Judgment:1999-09-03 Reported As: 2000 P Cr. L J 920 Result: Order accordingly
JUDGMENT
JUDGMENT ' WAHID BUX BROHI, J.--- Appellant ghulam Nabi has been convicted for an offence under section 365-A read with section 149, P.P.C. And sentenced to suffer imprisonment for life on each count for the abduction of Irshad Ali and Mehboob Ali, vide judgment, dated 29-6-1995 passed by the Special Court, Constituted under the S.T.A. (Special Courts Act), 1975 for Larkana. By the same judgment, his movable and immovable property has been forfeited to the Government of Sindh and it is directed that the amount of sale proceeds of property forfeited, if any, shall be paid to the complainant to the extent of Rs,1,50,000 and the rest to the government of Sindh. He was also convicted for an offence under section 395, read with section 149, P.P.C. And sentenced to R.I. For seven years and to pay fine of Rs,10,000 or in default to undergo further R.I. For one year. It was ordered that the fine if recovered shall be paid to complainant Muhammad Saleh and Abdul Aziz. Benefit of section 382-B, Cr.P.C. Was allowed to him and the substantive sentence was ordered to run concurrently. He has preferred this appeal against the aforesaid conviction and sentence. 2. The case of prosecution as disclosed in the F.I.R. Lodged by complainant Muhammad Saleh at Police Station, Veehar is that on 11-7-1990 at about 10-15 p.m. Complainant, his brother Dhani Bux and cousin Muhammad Umar were present in the house when five persons, out of whom three were armed with kalashnikovs and two with rifles, barged into the house of complainant and asked the complainant party to keep quiet. Two persons stood over them and pointed weapons at them while three culprits entered into the rooms of the house and after breaking open the locks of the boxes took out DBBL gun, jewellary cash and clothes etc. Two boys namely Irshad Ali son of complainant aged 13 years and Mehboob Ali nephew of complainant aged about 11 years, who were sleeping in the house were caught hold of and awakened by the culprits. They took the boys
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with them and went away towards Dadu Canal. The faces of the culprits were open and were seen in the light of the electric bulb. The complainant party suspected that they were Nabu Junejo and their gang men. On fires and commotion the villagers collected there, but out of fear nobody chased the culprits. In the morning they tracked the foot-prints which after crossing the lands reached the inspection path of Dadu Canal and then after crossing the Tatri Regulator bridge proceeded towards road leading to Veehar and crossed the protective Bund. Thereafter, the ground being hard and further due to standing water, the foot-prints could not be tracked. The complainant party informed Veehar Police, who joined them in tracking the foot-prints. After consulting his brothers who were not present at the time of incident, the complainant lodged F.I.R. At Police Station Veehar on 13-7-1990 at 12-00 noon. 3. S.I.P., Khursheed Hussain Shah, S.H.O., Police Station Veehar recorded the F.I.R. And took up the investigation. He visited the place of occurrence and recorded the statements of P.Ws. Allah Bux, Dhani Bux and Ayoob. It is alleged that after 18 days of the incident one culprit Aijaz Ali Bhatti met the complainant in his Otaq at 6-00 p.m. And demanded ransom of Rs,1,50,000 for release of abductees and threatened that if the amount is not paid he will get the dead bodies of the abductees. Two days later Aijaz Ali Bhatti showed up at his house at Isha prayer time and the complainant paid Rs,1,50,000 to him. The abductees were released on 28-7-1990 and 2-8-1990, thereafter, the Investigating Officer recorded their statements under section 161, Cr.P.C. On 10-1-1993 statements of abductees Mehboob Ali and Irshad Ali were recorded under section 164, Cr.P.C. By Mukhtiarkar and F.C.M., Dokri in absence of the accused/appellant as he had not been arrested till then. On 11-5-1993 on the basis of spy information S.H.O., Muhammad Banarus arrested the accused and secured an unlicensed kalashnikov loaded with 30 live rounds and an extra magazine containing 10 live rounds from his possession. A separate case under section 13-D, Arms Ordinance, was registered against the accused for the unlicensed arms and ammunition secured from his possession. On 16-5-1993 the statements of Dhani BuX and Ghulam Muhammad were recorded under section 164, Cr.P.C. In presence of the accused/appellant. On 25-5-1993 identification test parade was held in presence of Mukhtiarkar and F.C.M., Dokri wherein complainant Muhammad Saleh and P.W. Ghulam Muhammad correctly picked out appellant/accused Ghulam Nabi to be the culprit. After completing the investigation, the appellant was challaned in the Court of S. T . A . , Larkana. 4. At the trial, the accused pleaded not guilty to the charge and claimed to be tried. 5. The prosecution examined the witnesses namely P.W.1 Muhammad Saleh complainant, P.W.2 Mehboob Ali the abductee, P.W.3 Irshad Ali the other abductee, P.W.4 Ghulam Sarwar, Mashir of inspection of the place of incident, P.W.5 Dhani Bux, an eye-witness, P.W.6 Ghulam Muhammad brother of complainant, P.W.7 Muhammad Suleman, Investigating Officer P.W.8, Gul Hassan Mashir of arrest of accused, P.W.9 S.H:O. Muhammad Banarus, Investigating Officer, P.W.10 Ali Sher Mukhtiarkar and F.C.M. And. P.W.11 Khursheed Shah the first Investigating Officer. 6. The statement of the accused/appellant was recorded under section 342, Cr.P.C. Wherein he denied all the allegations. He took the plea that he is falsely implicated by the complainant party due to enmity and malice in collaboration with police. On the basis of this evidence, the learned trial Court passed judgment on 29-6-1995 convicting the appellant as stated above. 7. We have heard learned counsel for the appellant and the learned Assistant Advocate-General. 8. The prosecution case mainly depends upon the following pieces of evidence:-- (1) Direct evidence of the abductees implicating the appellant, at the trial. (2) Identification test parade, wherein the accused was picked out by complainant Muhammad Saleh and P.W. Ghulam Muhammad. (3) Payment of ransom money. (4) Recovery of crime weapon.
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9. Learned counsel for the appellant contended that admittedly the name of present appellant was not mentioned in the F.I.R. And suspicion was shown in Nabu Junejo and his gang men and since the complainant has admitted in his evidence during cross-examination that their lands are situated adjacent to the lands of present appellant and that he knew the accused before the incident, it stands established that the complainant had not seen the accused at the time of incident, otherwise there was no reason to withhold the name of accused while lodging of the F.I.R. Which was recorded after two days of the incident and, admittedly, after the complainant consulted his brothers. He argued that the evidence in the form of identification test parade is meaningless in the circumstances and would not render any support to the case of prosecution to establish the identity of the accused. He contended that the role of appellant could not, therefore, be one of the culprits who committed dacoity and abducted the boys. He further contended that the remaining evidence would be that of two abductees namely Irshad Ali and Mehboob Ali whose evidence is not sufficient to implicate the appellant as their statements under section 164, Cr.P.C. Were recorded after two and a half years of the occurrence that, too, in the absence of the appellant, and it has not been reasonably explained by the prosecution why their statements could not be recorded earlier when they have categorically stated in their evidence that accused Ghulam Nabi and Piral used to visit forest during the period of their captivity. Regarding the payment of ransom amount he contended that no evidence has come on record that the amount was paid to the present appellant. Referring to application Exh.14-A made by one Abdul Aziz to D.I.- G.P. Alleging that the police had not taken interest in their case and that new F.I.R. Be recorded against the real culprits Ghulam Nabi and Piral, the leamed counsel contended that in fact after this application, which was forwarded to S.S.P., Larkana and the latter endorsed a copy thereof to S.H.O. Dokri (Exh.14-B), the case was managed and the appellant was implicated falsely. 10. In support of his contention, he relied upon the following cases:--(1) Gul Sher and others v. State 1968 SCMR 756, (2) Hazaratullah and another v. State 1968 SCMR 1361, (3) Muhammad Iqbal v. State 1984 SCMR 930, (4) Muhammad Hussain alias Hussaini v. State PLD 1995 Lah. 229, (5) Abdul Khaliq v. State 1996 SCMR 1553, (6) Abdul Karim alias Raja and another v. State 1996 PCr.LJ 503, (7) Imdad Jakhro v. State 1994 PCr.LJ 1648, and (8) Hatim Ali Sheikh v. State PLD 1994 Kar. 414. 11. Learned A.A.-G. Rebutted these arguments and submitted that evidence has come on record to show that the appellant used to visit the abductees during their capavity and in this regard the abductees have fully implicated the appellant in their evidence recorded by the trial Court, and the identification made by them at the trial is sufficient in this behalf. According to him, the testimonies of the abductees are believable and from their evidence the intention of the appellant sharing the common intention is clearly made out as such implicit reliance on their testimony has rightly been placed by the trial Court for the purpose of recording finding of conviction. He argued that the delay in conducting the identification test parade would not damage the case of prosecution. According to him, the delay in recording the statements of abductees has been explained in the statements of abductees recorded under section 164, Cr.P.C. Stating that due to fear of dacoits they kept quiet, but at one stage when the army stepped in for the purpose of maintaining the law and order situation, they dared to come forward to state and truth. This explanation, according to him, was plausible and believable. The learned A.A.-g. Argued that the case against the appellant has been proved, and he relied on the following authorities:-- (1) Hayat v. State 1977 SCMR 340,
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(2) Muneer Ahmed and another v. State 1998 SCMR 752, (3) Muhammad Akbar v. State 1998 SCMR 2538, and (4) State v. Nazir Ahmed and others 1999 SCMR 610. 12. We have carefully considered the contentions of both sides in the light of material on record and the case-law. Prima facie, the case rests on the evidence of abductees which would be discussed afterwards. As far the evidence of the identification test parade is concerned, we are of the considered opinion that the required ingredients which could bring the test to the level of a corroborative piece of evidence are lacking. Initially, as pointed out by the learned counsel for the appellant, the admission made by the complainant in the cross-examination was sufficient to wipe off this evidence. The relevant portion of the evidence of complainant's deposition is reproduced herein below:-- "It is correct that our lands are situated adjacent to the lands of present accused. I know the accused before this incident." 13. If the accused was known to the complainant, there was no sense in holding the identification test parade for the purpose of identifying the accused for the first time in the test. The proposition as regards the test parade has exhaustively been dealt with by the Honourable Supreme Court in the case of State v. Farman Hussain reported in PLD 1995 SC 1, wherein it has been held that "a distinction is to be made between a case in which witness has had only a fleeting glimpse of the accused who happened to be stranger and a witness who had known the accused previously or who had met the accused several times; in the former case, the Court insists upon having proper identification parade, whereas in the latter case the identification parade can be dispensed with as the witness can identify the accused even in the Court". 14. Since it is admitted that the accused was known to the complainant the identification in the identification test parade through him is meaningless. The second witness through whom the accused was identified in the identification test parade is Ghulam Muhammad the brother of complainant. No doubt in view of the aforesaid admission of the complainant, Ghulam Muhammad being brother of complainant who used to live within the same enclosure, it can be presumed that the accused was known to him also and as such identification test through him was of no use, but the important drawback pointed out by the learned counsel of ghulam Muhammad was recorded under section 164, Cr.P.C. Vide Exh.13-A in presence of accused and the accused was specifically asked to cross-examine him but he (the accused) had replied that his Advocate would make cross-examination and such certificate was also appended by the Magistrate that the statement was recorded in presence of the accused, therefore, identification test parade conducted thereafter on 25-3-1995 through the same witness who had earlier seen the accused was of no significance. Consequently, we agree with the learned counsel that the identification test parade would not carry any evidentiary 0 value, nor would lend corroborative support to the case of prosecution. 15. As already mentioned the most important piece of evidence connecting the accused with the offence of abduction was the ocular testimony of the abductees themselves. Learned counsel for the appellant pointed out that no identification test was conducted through the abductees and that statements under section 164, Cr.P.C. Were recorded after two and a half years, therefore, their testimonies may not be accepted. In particular he pointed out that the Investigating Officer Khursheed Shah has admitted in his cross-examination that in their statements recorded by him under section 161, Cr.P.C. The abductees Irshad Ali and Mehboob Ali did not mention the name of accused Ghulam Nabi. Learned counsel further pointed out that a specific question was put to Khursheed Shah, the Investigating Officer to which he replied in affirmative that the abductees did not state about the visit of accused Ghulam Nabi in the forest. In the light of these admissions he argued that at a very late stage the complainant party implicated the accused through the
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abductees due to enmity, hence the identification of the accused in the Court at the time of trial by itself is not sufficient. 16. In this context, we would like to have a glance at the relevant case-law, as in the current spate of crime of abduction for ransom, the superior Courts looking to the peculiar facts of each case have made realistic approach and evaluated the evidence of abductees awarding due credibility to their versions-excepting those cases where their evidence has been found inherently, inconsistent and unbelievable. The cases reported as 1994 PCr.LJ 950, 1995 PCr.LJ 73, PLD 1995 SC 1, 1998 SCMR 752 and 1998 SCMR 2538 may conveniently be referred to in this behalf. 17. In the case of Ali Dost v. The State 1994 PCr.LJ 950 and Muhammad Ashraf v. State 1995 PCr.LJ 1968 no identification test parade was held but the accused was identified by the abductees in Court during the trial and it was held that identification in Court was enough. Reliance in that case was also placed on PLD 1990 FSC 38. Similarly, it was held in Farman's case (supra) that if the accused was previously known or the witnesses meet him several times, identification in Court was sufficient. 18. In Muneer Ahmed's case reported in 1998 SCMR 752 the evidence of abductees was believed and regarding the identification test parade it was held that there was no necessity of holding identification when the abductees, as well as other witnesses, had ample opportunity to see the culprits. Reference was made to Farman's case and also to the case of Zakir Khan v. State reported in 1995 SCMR 1795. In respect of the proposition laid down therein that when the abductees remained with the accused during the captivity and had clearly seen their faces, holding of an identification test parade was not a mandatory requirement. 19. In Muhammad Akbar's case reported as 1998 SCMR 2538, the evidence of abductees was assigned absolute credence observing as under:-- "In fact, P.W. Shaikh Rehmatullah had spent more than a month in captivity and during such time he was being regularly visited by the petitioner. Therefore, even if the identification test was held after a long delay, the same would not render his evidence unreliable. We, therefore, do not find merit in any of the contentions of the learned counsel for the petitioner." 20. In view of the case-law discussed above, we are of firm view that identification made by the abductees in the Court is to be accepted, as substantive evidence unless it is made out otherwise that their evidence is not confidence inspiring and tainted with animosity coupled with a motive to implicate falsely. 21. The abductee Mehboob Ali was examined in the Court on 1-6-1994; he deposed that at the time of incident five culprits duly armed with kalashnikovs and rifles entered the house of complainant and they over-powered them and the culprits robbed DBBL gun of his cousin Abdul Aziz, gold ornaments, cash, clothes and other articles and took them outside the house where they found five other culprits and few more abductees in custody of the culprits. He stated that the culprits took all of them towards the bank of Dadu Canal where the culprits fired in air in joy with slogans and when they reached a bridge at the regulator of Dadu Canal four culprits parted away. He stated specifically that they identified two of the culprits being accused Ghulam Nabi and Peeral whom he knew prior to occurrence as they resided near their village and their lands and the lands of the accused were adjacent. He further, stated that the culprits took them from forest to shrine of Pir Saidi Moosani and detained them in forest in the camp of dacoit Nabu Junejo for three days. From there they were shifted to Qadu Sargani's camp after crossing the river Indus. The culprits used to maltreat them and compel them to do work including washing utensils. He deposed that accused Ghulam Nabi and Peeral used to visit forest and they told the dacoit Nabo Junejo that the parents of abductees are well-to-do persons and will pay huge ransom amount. According to him, another dacoit namely Aijaz also used to visit the forest and after 23 days of their abduction he informed the other dacoits that their (abductee's) parents had made the payment of ransom amount,
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whereupon the dacoits first 'released Irshad Ali and then himself (Mehboob Ali) after two days thereafter. He deposed that Aijaz sailed alongwith him on a boat and they reached right bank of river Indus where he met his uncles Muhammad Saleh and Abdul Aziz who took him to his house. He stated that his statement was recorded by S.H.O. Veehar on 29-11-1992. He further stated that his statement was recorded by Mukhtiarkar Dokri which he produced as Exh.8-A. He stated that accused Ghulam Nabi present in Court is the same. He was cross-examined at length, but nothing could be elicited from him to damage his veracity. He repeated in cross-examination that accused Ghulam Nabi used to visit the forest daily at different hours of the day. He denied that there was any dispute between his elders and Ghulam Nabi over lands. In this way he unmistakably implicated the accused in the offence. 22. The other abductee P.W. Irshad Ali Exh.9 gave almost similar facts of the occurrence and stated that the culprits after committing robbery took him and his cousin Mehboob Ali towards Dadu Canal and after covering about one kilometre, four of them returned back while the rest took them towards Katcha. They proceeded to forest and shrine of Pir Saidi Moosani. The culprits crossed the River Indus by a boat/ferry and then detained them in the forest for three days, whereafter they were shifted to hide out of dacoit Qadu Sargani, where they were detained for about 23 days. The culprits used to maltreat them and compel them to work for them and to clean the untensils. After 23 days the culprits released him after receiving ransom amount from his father and Mehboob was released two days later on. Their parents told them that they paid Rs,1,50,000 for their release. He deposed that accused Ghulam Nabi and Peeral used to visit the forest and accused Ghulam Nabi informed the other dacoit that the abductees belong to a rich family and their parents are capable of paying a huge amount of ransom. After his release he disclosed the entire incident to his parents. He stated that his statement under section 164, Cr.P.C. Was recorded by the Magistrate, at Dokri, which he produced as Exh.9/A. He deposed that accused Ghulam Nabi present in Court is the same who used to visit them in the forest. 23. In his cross-examination, he explained that other abductees were released by the dacoits when they reached at Dadu Canal. A number of suggestions were given to him in the cross-examination which he denied. He stood unshaken in the cross-examination and nothing could be procured from him to damage his credibility. 24. There remains only the contention of the learned counsel that when the culprits were known to the abductees why their identity was not disclosed to the police earlier and why the statements were recorded after two and a half years. As already stated an explanation has come forward in this regard in the statement under section 164, Cr.P.C. Of these abductees that the crime of abduction for ransom had created an atmosphere of terror, therefore, they kept quiet, but after visualizing that the army had stepped in and controlled the situation they came forward, and set the law into action against the culprits. Nothing could come on record otherwise, to show that for a particular reason the abductees developed a motive to implicate the accused at a particular juncture or because of certain events happening subsequently. Conversely, if there was any previous enmity and that was sole ground for implication of the accused nothing prevented the witnesses to come forward with a version that the enmity was the motive for kidnaping. In any case, no proof was furnished to establish that there was actual enmity between the parties. 25. The learned counsel, however, submitted that in view of the case-law cited by him the identification test in the Court was not sufficient. In the case 1995 PCr.LJ 1394 the identification made in the Court was not relied upon, because of the abductee's short sightedness of the vision and that the accused was shown to him by police. The facts of the instant case are different in that, the accused was known to the abductees and there was no allegation of defective vision of the abductees. In the case under comparison the Magistrate had also indicated in his evidence that the abductee was hesitant and in a state of confusion of mind in identification of each accused
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who were five in number while sixth one was not identified by him and the abductee had admitted that since his childhood he suffered from short sightedness of vision and could not see perfectly beyond 10 feet. Obviously, the facts of the case are distinguishable. 26. In the case Abdul Karim v. State reported as 1996 PCr.LJ 503, the main factor taken into consideration by the Court was that the names of the culprits did not find mention in the F.I.R. And that the Challan was put up after 48 days of the arrest of the accused in violation of section 173, Cr.P.C. Some irregularity was also found in the identification test parade. The above facts are quite different as in the instant case the complainant had stated in the F.I.R. That on seeing the accused he would be able to identify them. In fact there were two sets of culprits, five had entered the house and were seen on the electric light, while the rest were standing outside the house, therefore, it can be assumed that the complainant could not give the names and identity of the culprits who were inside the house. For the rest there is clear statement in the F.I.R. That out of fear nobody could chase the culprits. It cannot be presumed at this stage that the present accused was not amongst those five who were outside. Even otherwise the main evidence against the present appellant is that he was seen by the abductees and secondly he used to visit them during the captivity in the forest. Abductees were not present at the time of lodging of F.I.R., therefore,…
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