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Petitioner: STATE through AdvocateGeneral, Sindh, Karachi VS Respondent: FARMAN HUSSAIN and
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title:STATE through AdvocateGeneral, Sindh, Karachi vs FARMAN HUSSAIN and
JUDGMENT
Reported As: PLD 1995 Supreme Court 1 Result: Order accordingly Judgment JUDGMENT ' SAJJAD ALI SHAH, J.---These are two Criminal Appeals with leave of this Court granted on 10-3- 1992. Petitions in these appeals have been filed by State through Advocate-General, Sindh, calling in question judgment dated 26-11-1991 of Division Bench of High Court of Sindh, Karachi, whereby two appeals filed by seven respondents before us against their conviction for offence under section 365-A/109, P.P.C. And sentence of death to all, have been allowed and in the result they have been acquitted. Case was tried in the Special Court No,1, set up under the provisions of Suppression of Terrorist Activities Act, 1975. Vide the same judgment trial Court in the same case had acquitted three co-accused namely Ronaq Ali, Ghulam Muhammad and Ghulam Murtaza by extending to them benefit of doubt. It appears from the record that convict Farman Hussain had filed a separate appeal in the High Court, which resulted in filing of two petitions in this Court which have been converted into appeals. 2. Briefly stated the relevant facts giving rise to these appeals are that minor boy aged 11 years namely Tariq Nawaz son of Qamar Din Thallo was kidnapped on 1-1-1991 between 1-30 p.m. To 1-45 p.m. From the compound wall of Umbreen Apartments situated in Gulshan-e-Iqbal, while he was playing with other children. It is alleged by the prosecution that three persons came in Suzuki car and from them two forcibly carried away Tariq Nawaz in the car. His sister Aisha Qamar intervened but she was pushed back. Aisha Qamar informed her mother, who in turn informed her brother Yasin on telephone. Yasin lodged F.I.R. At Police Station Gulshan-e-Iqbal on the same day at 2-15 p.m. (14-15 hours). Distance between place of occurrence and police station is one kilometre as is
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mentioned in F.I.R. (Exh.No,13/A). Culprits are described in F.I.R. As three young persons who came in a cream colour Suzuki car number of which is not known. From them one was in pant and shirt while the two were in Shalwar Qameez and they had forcibly taken away Tariq Nawaz in their car in order to extort ransom for his release. 3. P.W.9 is Inspector, Sultan Masood Kiyani, who was at the relevant time posted in C.I.A. Cell No,2 (anti-kidnapping). On 6-1-1991 (5 days after incident) spy information was received by his superiors and in pursuance of which he raided Bungalow No,B/22 situated in Block 13/D, Gulshan-e- Iqbal and for that purpose he was aided and assisted by 8/10 police mobiles and a fire brigade vehicle. On the way to the place of raid he stopped a taxi and made driver and passenger namely Muhammad Anwar and Abdul Rasheed witnesses and took them along so that raid should be made in their presence. Raid was made at 6-00 a.m. And outside the bungalow announcement was made on the hailer that whoever was inside should surrender as the police had surrounded the bungalow. After that entry was made in presence of witnesses and 8 accused persons came out with arms from different rooms and gathered in the Hall of the bungalow. Aslam Shah alias Samar was armed with 7 MM rifle, Shaukat, Ghulam Abbas and Amir Bakhsh were armed with Klashanikovs. Niaz and Raunaq Ali were armed with pistols while Ghulam Mustafa and Ghulam Muhammad had Revolvers. Except Aslam Shah others had live cartridges as well. On inquiry they could not produce licences for the arms and they were taken in custody. Such Mashirnama was prepared which is Exh.22/A. Police party shouted for the kidnapped boy who came out from the bathroom and appeared to be nervous. He was recovered vide Memo. Exh.22/B. There was a car Suzuki FX in the Porch of the said bungalow which was secured vide Memo. Exh.22/C. Persons arrested were brought to C.I.A. Centre-2, alongwith arms recovered from them. 4. Further investigation was handed over to P.W.10 Qurban Ali Khokhar, who examined kidnapee Tariq Nawaz. On 8-1-1991 on the pointation of respondent Shaukat, who was in police custody he arrested respondent Farman Sheikh from the Par View area of Karachi Airport vide memo. Exh.23/A. On 14-1-1991 on the pointation of Shaukat he arrested respondent Liaquat, vide memo. Exh.23/B, on 16-1-1991 he produced accused persons before ACM, C.IA., Karachi for identification test, which was held in which prosecution witnesses except one correctly identified accused persons. This investigating officer examined P.Ws. Aisha Qamar, Qamaruddin Thallo, complainant Yasin and others. 5. In the trial Court prosecution examined 11 witnesses, who have been wrongly shown in the index of the paper-book of the High Court as 10 witnesses. P.W.8 is repeated for two witnesses. P.W.1 is Muhammad Yasin complainant, who filed F.I.R. P.W.2 Qamaruddin Thallo is Custom Officer and is father of kidnapee Tariq Nawaz. It is deposed by him that he was in Custom House when he was informed that his son had been kidnapped. He came to his house and was apprised of details by his wife about the kidnapping. On 6-1-1991 he was informed by C.I.A. That his son had been recovered. He claimed in his deposition that one day before the kidnapping he saw Farman Sheikh and Shaukat and one other person standing near the stairs of his Flat. Later during investigation on 15-1-1991 he identified Farman Sheikh and Shaukat in the test before the Magistrate. P.W.3 is kidnapee Tariq Nawaz, who deposed that three persons came in Suzuki car from which two came down and caught hold of him. One of them was wearing Jacket. His sister Aisha intervened but he was taken away in the car. The person who was wearing Jacket had put of the same and put on him to cover him so that he should not see. Later he found himself in a bungalow where one person was already waiting. One person always remained guard over him. He was detained in the bungalow for five days and the persons used to change duties to stand guard over him. He was given meals. They used to tell him that they would contact his father and as soon as money was paid, he would be released. From accused persons he recognized Farman, who used to visit his Flat. On 6-1-1991 police came to the bungalow, recovered him and arrested accused persons.
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During investigation he identified two persons in the test before the Magistrate and one of them was Farman Sheikh while the other was the person who had kidnapped him. 6. P.W.4 Nisar Ahmed Nadeem deposed before the trial Court that the bungalow from which kidnapee was recovered is owned by his father-in-law and was rented out to a person, who disclosed his name as Shahnawaz Bhutto, son of Ghulam Haider Bhutto at the rent of Rs,8,000 per month. The rent of six months was paid in advance. On 6-1-1991 he came to know that there was a raid on the bungalow and learnt about details from C.IA. He identified Ameer Bakhsh Umrani to be the person to whom the bungalow was rented, who gave his name as Shah Nawaz Bhutto. He produced copy of rent agreement Exh.16/A and rent receipts Exhs.16/B and 16/C. 7. P.W.5 is Aisha Qamar, who was 10 years old at the time of her deposition. She was playing with her brother Tariq Nawaz at the time of kidnapping. She gave the details as stated above. During investigation she identified two kidnappers in the test as Liaquat All and Ghulam Abbas. P.W.6 is Muhammad Moizuddin, who signed memo. Of Wardat Exh.18/A as Mashir which was prepared on 1- 1-1991. P.W.7 is Abdul Qadir Sanghi, who is doing business of Estate Agency and Commission Agent. Through him bungalow in question was rented out by Ameer Bakhsh who gave his name as Shah Nawaz Bhutto. Ameer Bakhsh was brought and introduced by Shaukat and Abbas to this witness. 8. P.W.8 is Mr. Muhammad Ahsab Khan, A.C.M., Karachi, under whose supervision identification test was held on 16-1-1991. 19 dummies were mixed up with accused persons. P.W. Muhammad Yasin identified Farman Sheikh and Shaukat Ali only. P.W. Aisha identified Ghulam Abbas and Liaquat Ali. P.W. Qamaruddin identified Farman Sheikh and Shaukat Ali. P.W. Tariq Nawaz identified Liaquat Ali and Farman Sheikh. P.W. Anwar Dilip did not identify any accused. These witnesses produced memos. Of identification Exhs.20/B and 20/F. 9. S.H.O. Ali Asghar is P.W.9 but is wrongly shown in the index of the paper book of High Court as P.W.B. He registered F.I.R. Exh.13/A at Police Station Gulshan-e-Iqbal and visited Vardat of kidnapping. He recorded statements of some witnesses and then investigation was transferred to C.I.A. P.W.10 Inspector Sultan Masood Kiyani and P.W.11 Sub-Inspector Qurban Ali of C.I.A. Have investigated this case as is mentioned above. 10. In the Trial Court in their statements under section 342, Cr.P.C., respondents before us and acquitted co-accused denied prosecution allegations and proclaimed false implication at the instance of police. Some of them have shown their connection with Sindh People's Students Federation. Ghulam Muhammad named D.I.-G. Police Akhtar Siddiqui and Ghulam Murtaza Sanjrani as instrumental for involving him falsely in this case. He had produced some documents to show his dispute with Ghulam Murtaza Sanjrani and in that connection filing of cases against him. Farman Hussain claimed that he was arrested on 8-1-1991 at 1-30 p.m. From Airport while he was on duty. On the day of incident also he was on duty. Shaukat All stated that he is President of SPSF and for that reason had been victimised at the instance of the Government. Aslam Shah also claimed to be office-bearer of SPSF., Tech. College and stated that he had been falsely implicated by the police and was arrested from Civil Hospital on 5-1-1991 at 11-00 a.m. Niaz Ahmed has stated that he is Central Vice-President of SPSF and has been falsely implicated by the Government in this case. Rounaq Ali claimed false implication as he could -not make payment to the police for his release. Respondents and acquitted co-accused further examined themselves on oath as defence witnesses. 11. It would be pertinent to observe that while trying a criminal case, it is the duty of the Court to appraise evidence strictly according to the legal requirements described by law without being swa yed away emotionally for any other extraneous reasons, which fall outside the pale of legal jurisdiction of appraisement of evidence. In the criminal jurisprudence which we follow, it is invariably the duty of the prosecution to prove the case against accused beyond doubt and the accused is presumed to be innocent until the case is fully proved against him and in that process
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not only if there is room for doubt, benefit thereof is to go to the accused but if any legal provision, which is to be relied upon in the appraisement of evidence and is open to two interpretations, one beneficial to the accused is to be adopted. The Court is to administer the laws as are operative in the country and if such laws fail to achieve the desired results, then it is the duty of the legislature to amend them suitably to make them effective. Court is not permitted to deviate from the principles and guidelines laid in the law for appraisement of evidence. To bring home guilt to the accused, legal evidence is required to be of incriminating nature to connect accused with the commission of crime beyond the shadow of reasonable doubt. 13. In this case prosecution has produced direct evidence of two child witnesses in support of charge of kidnapping and evidence of recovery of kidnapee and arrest of accused persons from the same bungalow which was raided and recovery of arms from them and evidence of identification test. Prosecution has also produced evidence of complainant Yasin and Qamaruddin to corroborate evidence of child witnesses. Prosecution has also produced evidence of witnesses to show that bungalow from which kidnapee was recovered was hired on rent by Ameer Bakhsh. After evaluation of evidence trial Court being not satisfied ruled out of consideration evidence of identification test which took place on 16-14991 under the supervision of Magistrate. Trial Court very heavily relied upon evidence of kidnapee Tariq Nawaz supported by his sister Aisha who are both child witnesses and held that identification test is not a legal requirement if eye-witnesses can identify the accused before the trial Court. For this preposition reliance is placed by the trial Court on the case of Muhammad Yousuf tai v. The State PLD 1988 Kar. 539 in which facts are entirely different. In the reported case appellant was convicted by the Special Court (Offences in Banks), Karachi, for offence under section 403 read with section 109, P.P.C. And sentenced to R.I. For two years and fine of Rs,2 Lacs. It was alleged that appellant posed as Rafiq Khan in whose name joint account was opened alongwith Mst. Wahida Taj. Appellant withdrew the entire amount by five cheques and misappropriated the same with abetment of other co-accused. Mrs. Yasmeen had introduced appellant and alleged Mst. Wahida Taj to the Bank for opening the account. During the investigation appellant participated in the identification test supervised by the Magistrate. It was contended on behalf of the appellant that evidence of identification test was not reliable as Mst. Yasmeen could not identify the appellant. High Court rejected the contention for the reason that there was other adequate evidence available on the record, hence failure to pick out correctly for valid reasons would not nullify other evidence and in such circumstances of that particular case, identification in the Court would suffice. Relevant paragraph from the report is reproduced as under:- "Adverting to the above first submission of Mr. Azizur Rehman Memon, learned counsel for the appellant that the identification test is not reliable, it may be observed that he has referred to the factum that P.W.6 Mrs. Yasmeen was unable to identify the appellant in the identification test carried out by the learned A.C.M. VII on 3-12-1984. In this behalf it may be pointed out that P.W.6 Mrs. Yasmeen has given a cogent reason for not identifying the appellant, in her cross-examination, namely, that she was unable to recognise the accused person or any one of them as they had changed their 'Huh' and that accused Yousuf Zai at the time of identification test was not wearing glasses and had removed his mustaches. Furthermore, in identification test P.W.2 Muhammad Farooq had identified the appellant. There seems to be ample evidence on record to prove the factum that the appellant was the person who opened the above account in the Karimabad Branch of the Bank and had deposited the above cheque Exh.2/F and had withdrawn the above amount through ExIs.2/H to 2/H-4. In this behalf reference may again be made to the evidence of P.W.1 M. Ismail Ghachi the Manager of the branch concerned of the Bank, P.W.2 Muhammad Farooq and P.W.4 Muhammad Akram Rathore the Manager of Taj Company Ltd. In whose presence and in the presence of P.W.1 the appellant made the extra-judicial confession which factum has been
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even admitted by the appellant by putting a question in the cross-examination to P.W.4 Muhammad Akram Rathore to the effect that the above extra-judicial confession was extracted under coercion. We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. If the eye-witnesses can identify the accused before the trial Court that is enough. In the present case the appellant had visited the Karimabad Branch of the Bank not only at the time of opening of the account but had also visited five times while withdrawing the amount of Exh.2/F through five cheques during the period from 5-9-1984 to 17-9- 1984 whereas the identification parade was held on 3-12-1984 and the evidence of the above witness was recorded in December, 1985." 14. From the perusal of the relevant paragraph reproduced above it is clear that observation was made by the High Court in peculiar circumstances of that case and was to be confined to that case without intending to lay down a proposition of general application that identification test is not necessary and can be replaced by identification of accused persons by the witnesses in the trial Court. It would be pertinent to point out here that in a criminal case if a witness gets a momentary glimpse of accused and claims that he would be able to identify him, then after arrest identification test becomes very essential which is to be conducted strictly according to guidelines and legal requirements enunciated by the law. 15. It appears from the judgment of the trial Court that corroboration to the statement of kidnapee was sought from the deposition of Aisha, who is also child witness. Evidence of P.W. Aisha was criticised on the ground that she did not give description of three accused persons who came in Suzuki car and two of them forcibly kidnapped her brother Tariq. She did not give description to her mother who was informed by her immediately after the incident. Her mother informed her brother Yasin on telephone, who lodged the report with police. No description of those two or three accused persons is mentioned in F.I.R. Except that one was in pant and shirt and two were in Shalwar- Qameez. Kidnapee Tariq identified in the test Liaquat and Ghulam Abbas as accused persons who took him away in the car. P.W.5 Aisha in the Jest identified Liaquat and Ghulam Abbas as kidnappers. P.W.3, Tariq Nawaz stated in his evidence that Ghulam Abbas was not with Liaquat Ali when he was kidnapped. Trial Court has held that the case is proved against respondents beyond doubt by independent evidence of two child witnesses Tariq Nawaz and Aisha and sentenced seven respondents to death while relying upon the evidence of same two child witnesses acquitted Ghulam Muhammad, Rounaq Ali and Ghulam Murtaza. 16. In appeal High Court has appraised evidence properly and in accordance with the legal requirements of law. In this case most important evidence upon which the fate of the whole case depends is of kidnapee P.W.3 Tariq and his sister P.W.5 Aisha. Both are child witnesses hence their evidence is to be assessed with care and caution. It is note worthy that P.W.5 Aisha did not give description of two accused persons who forcibly kidnapped Tariq Nawaz in her presence. Time of incident was about 1-30 p.m. And it is strange that no body else saw the act of kidnapping despite the fact that cries must have been raised and there was resistance by Aisha. Incident took place inside the compound of Umbreen Apartments which is a building with flats fully inhabited. In any case to say that one was in pant and shirt and two were in Shalwar-Qameez is not the description, which can be helpful at the time of identification test. Respondent Ghulam Abbas was arrested on 6-1-1991 and Liaquat on 14-1-1991 and identification test took place on 16-1-1991. Identification was not held in proper manner and number of dummies was not proportionate to number of accused persons made to stand in the test. Identification test of Abbas was held after ten days for which it can be said that it was open to doubt. Evidence of identification test in such circumstances is assailable and not fit to be relied upon. 17. On the point of identification test P.W.8 Mr. Muhammad Ahsab Khan A.C.M. Deposed before the trial Court that kidnapee Tariq Nawaz identified two accused persons namely Liaquat Ali and
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Farman Sheikh. At that time five accused persons stood in the row alongwith 15 dummies. He admitted that in the identification test by the witnesses, 13 accused were mixed with 19 dummies except when Tariq came, 5 accused were made to stand with 15 dummies. He did not mention names of the accused persons and of dummies in the pro formas according to their position of standing in the line with serial numbers. At another place in the cross-examination this witness had admitted that names of dummies were written in the pro formas by Court Muharar. He further deposed that Aisha Qamar identified Ghulam Abbas and Liaquat Ali. Qamaruddin and Yasin identified Farman Sheikh and Shaukat Ali. It would be pertinent to point out here that it is the case of the prosecution that on night preceding the kidnapping Qamaruddin and Yasin while coming back from Airport saw Farman Sheikh and Shaukat All near the flat of Qamaruddin and exchanged greetings with them. If the accused and witnesses mentioned above knew each other so well then there was no need of identification test. In any case Yasin did not mention this fact in F.I.R. And deposed that he mentioned this fact in his police statement which was recorded on 16-1-1991 on which date the test was held. On the other hand Qamaruddin deposed before the trial Court that he stated before the police but not in his earlier statement recorded by S.H.O., Ali Asghar of Police Station Gulshan-e-Iqbal that another person was with accused Farman. He further reiterated that his statement before police and in the Court were correct as he had indicated before the police that person who was with accused Farman was not known to him while accused Shaukat was already known to him. 18. Question of identification test came up for examination in the case of Lal Pasand v. The State PLD 1981 SC 142 in which it is held that identification test with unexplained delay of one week and conducted not in accordance with rules and mixing proper number of dummies cannot be relied upon when eyewitness has not given proper description of assailant seen by him at the time of incident. It was further observed that mere description of accused having green eyes and thin neck was not sufficient as such description could apply to a large number of persons. In the instant case no description is given at all of the accused persons as stated above. With advantage reference can be made to the case of Abdul Sattar and another v. The State 1981 SCMR 678 in which evidence of identification test was rejected on the grounds of discrepancies in statements of witnesses and improbabilities inherent in their versions, particularly contradictory descriptions of height of assailants as given by them and mentioning them as boys of young age. 19. Farman and Liaquat were not arrested from the bungalow. P.W. Tariq deposed before the Trial Court that he saw Farman coming to the bungalow on two occasions. P.Ws. Qamaruddin and Yasin also claimed to have seen Farman and Shaukat near the Flat of Qamaruddin at night which preceded the act of kidnapping. Qamaruddin was not sure about the identity of other person with Farman as indicated by him in the statement made to the police. According to P.W.10 Qurban Ali of CIA., who had taken over the investigation, he examined kidnapee Tariq Nawaz. It is not ascertainable from the evidence of this witness as to on what date he recorded statement of Tariq Nawaz and whether in the statement, Tariq Nawaz has mentioned this fact that on two occasions Farman Sheikh had visited bungalow and latter was already known to Tariq Nawaz, who referred to Farman Sheikh as uncle Farman. Relatives of Tariq could have been contacted to throw more light on this very important clue. Qurban Ali has further deposed that he arrested Farman Sheikh on 8-1- 1991. He further deposed that he met with kidnapee on 6-1-1991 and thereafter only on 16-1-1991. He further admitted that Qamaruddin father of kidnapee did not see him from 7-1-1991 to 15-1-1991. Qamaruddin has stated before the Trial Court in his cross-examination that it was correct to say that police examined him for the first time on 16-1-1991. Identification test also took place on 16-1- 1991. P.W.1 Yasin, complainant has also admitted before the Trial Court in his deposition that he stated for the first time before police on 16-1-1991 that he saw Farman Sheikh and others near the Flat of his sister on 31-12-1990. In such circumstances it cannot be ruled out that assertion made by
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Qamaruddin and Yasin that Farman Sheikh and others were seen near the Flat of kidnapee on the night preceding the act of kidnapping is an improvement in the case of prosecution made for the first time on 16-1-1991 when the identification test took place and that is why need was felt to ask both these witnesses namely Qamaruddin and Yasin to participate in the identification test to identify Farman and Shaukat. 20. There is still one other angle from which involvement of Farman can be looked at. Farman was not arrested from the bungalow but was arrested subsequently on 8-1-1991. It is alleged that house was raided on 6-1-1991 and Tariq Nawaz was recovered. If police statement of Tariq Nawaz had been recorded on 6-1-1991, then it is expected that he might have mentioned this fact in…
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