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Petitioner: MUHAMMAD SARWAR VS Respondent: The STATE and others
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Shamsuddin Abbasi Title: MUHAMMAD SARWAR vs The STATE and others Case No.: Cr. Spl. A.T.A. Appeal No.D-108 and Cr. Acquittal Appeal No. D-120 of 2004 Date of Judgment:2018-05-21 Reported As: 2019 YLR 1777 Result: Appeal accepted
JUDGMENT
JUDGMENT NAIMA TULLAH PHULPOT O, J.--- Appellants Muhammad Sarwar , Haji Mohabbat Khoso, Pathan Khoso, Ghulam Sarwar , Umar , Abdul Latif, and Anwar were tried by learned Judge Anti Terrorism Hyderabad Division and Mirpurkhas at Hyderabad, in Crime No,10 of 1999, registered at Police Station Bandhi under sections 365-A, 148, 149, P.P.C. On the conclusion of the trial vide Judgment dated 30.06.2004 Appellants Haji Mohabbat Khoso, Pathan Khoso and Muhammad Sarwar Arain were convicted and sentenced to imprisonment for life and to pay fine of Rs,200,000/- each and forfeiture of the property owned by them was ordered. In case of default in payment of fine they were ordered to suffer one year R.I. more. Co-accused namely Ghulam Sarwar Khoso son of Saifal Khoso, Umer son of Bhawal Khoso, Abdul Latif son of Abdul Jabbar Khoso and Anwar son of Haji Nihal Dahri were acquitted of the charge by extending them benefit of doubt. State also filed Crimin al Acquittal Appeal No, D-120 of 2004 against acquittal of the aforesaid accused persons. We intend to decide the aforesaid matters together to avoid the repeatation as in both appeals evidence is same. 2. Brief facts of the prosecution case as disclosed in the FIR are that above accused persons along with late accused Allah Rakhio and absconding accused Haji Achar and others and three unknown dacoits on 5th March 1999, at night hours time armed with K.K and gun kidnapped Javed Iqbal and Nazeer Ahmed Arain for the ransom. It is alleged that accused demanded Rs,1500,000/- as ransom for the release of the abductees Javed Iqbal and Nazeer Ahmed. It is further case of the prosecution that ransom amount was demanded by accused from P.W. Tariq Masood in presence of P.Ws Sharif, Aijaz Ali. P.Ws/abductees Javed Iqbal and Nazeer Ahmed were released by the accused on receiving the ransom amount of Rs,1500,000/-. It is alleged that accused persons namely Haji Mohabbat Khoso, Pathan Khoso, Ghulam Sarwar Khoso and Umer Khoso were arrested and they were found in possession of unlicenced weapons like repeater , gun K.K. and 12 bore gun by the I.O. and the cases under Arms Ordinance were registered against them. It is also further case of the prosecution that accused persons by the
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commission of the above offence have created terror in the locality . Complainant Muhammad Shareef lodged FIR under section 365-A, P .P.C. at Police Station Bandhi. 3. After usual investigation challan was submitted against the accused under the above referred sections. 4. Trial Court framed the charge against the accused Haji Mohabbat Khoso, Ghulam Sarwar , Pathan Khoso, Umar and Muhammad Sarwar at Ex.17. Accused pleaded not guilty . 5. Amended charge was framed against accused Mohabbat Khoso, Muhammad Sarwar , Pathan Khoso, Umar , Anwar and Abdul Lateef at Ex.26. Accused pleaded not guilty and claimed to be tried. 6. In order to prove its case, prosecution examined complainant Muhammad Shareef on 6.3.2003 at Ex.34 who produced FIR No,10 of 1999 at Ex.34/A. Evidence of Mashir Muhammad Tahir who acted as Mashir of identification of accused Pathan, Ghulam Sarwar and Haji Mohabbat was recorded on 8.3.2003 at Ex.35. Prosecution examined P.W. abductee Javed Iqbal at Ex.37. P.W. Nazeer Ahmed abductee at Ex.38, P.W. Tariq Masood at Ex.46, P.W. Aijaz Ali was examined on 14.6.2004 at Ex.47. P.W. Muhammad Imran Adil at Ex.48 , P.W. SIP Ghulam Rasool, who recorded statement of complainant under section 154 Cr.P.C. and investigated the case at Ex.49. P.W. Inspector/S10 Fida Hussain was examined at Ex.50, who produced Mashirnama and FIR at Ex.50/A. P.W. ASI Muhammad Essa arrested accused Mohabbat Pathan, Ghulam Sarwar , he was examined at Ex.52, SIP/SIO Abdul Hameed of Police Station "A" Section Nawabshah at Ex.53, P.W. ASI Muhammad Yousuf at Ex.55, P.W. SIP Muneer Ahmed who arrested accused Anwar Dahri and his evidence was recorded at Ex.57, P.W. SIP Dur Muhammad who arrested accused Abdul Lateef Khoso at Ex.58 and produced Mashirnama at Ex.58-A, P.W. Mr. Saleem Qambrani Joint Civil Judge and FCM Nawabshah conducted identification parade of accused Anwar on 2.6.2000 has been examined on 26.6.2004 at Ex.59 who produced memo of identification parade at Ex.59-A, P.W. Inspector / I.O. Mazhar Hussain investi gated the case and received spy information during investigation that accused Mohabbat Khoso, Pathan Khoso and Ghulam Sarwar and their " accomplices have detained the abductees in their captivities. He proceed ed to the pointed place where abductees were detained. It is stated that encounter took place. Later on I.O. arrested accused Mohabbat, Pathan and Sarwar Khoso within their limits of Police Station Nausheroferoze. There-after , prosecution side was closed. 7. Statements of the accused Haji Mohabbat Khoso, Ghulam Sarwar , Pathan Khoso, Anwar Dahri, Umer Khoso, Abdul Lateef and Muhammad Sarwar were recorded under section 342, Cr.P.C. at Exs.63 to 68 respectively . Accused claimed false implication in this case and denied the prosecution allegations. 8. Trial Court after hearing the learned counsel for the parties and assessment of evidence vide Judgment dated 30.06.2004 convicted accused Haji Mohabbat Khoso, Pathan Khoso and Muhammad Sarwar Arain and sentenced to imprisonment for life and to pay fine of Rs,200,000/- each and forfeiture of the property owned by them was ordered. In case of default in payment of fine, they were ordered to suffer rigorous imprisonment for one year more. Accused namely Ghulam Sarwar Khoso son of Saifal Khoso, Umer son of Bhawal Khoso, Abdul Latif son of Abdul Jabbar Khoso and Anwar son of Haji Nihal Dahri were extended benefit of doubt and acquitted of the charge. 9. Mr . Badal Gahoti, Advocate for Appellant Muhammad Sarwar made following submissions:- (i) That the name of Appellant Muhammad Sarwar did not transpire in FIR recorded under section 364, P .P.C. (ii) That there was no allegation against Muhammad Sarwar that he had kidnapped abductees for ransom but there is only allegation against him that he received the ransom. (iii) That the FIR was lodged against Muhammad Sarwar bearing crime No,44 of 1999 Police Station Bandhi under sections 506(2), 215, P .P.C. but name of Muhammad Sarwar was not mentioned in the said FIR. (iv) That after arrest of accused Muhammad Sarwar no identification parade was held through any of the witness before any Magistrate. (v) That no ransom amount was recovered from Appellant Muhammad Sarwar during investigation. (vi) That both abductees namely Javed Iqbal and Nazeer Ahmed did not implicate Appellant Muhammad Sarwar at trial. (vii) That only the piece of evidence collected against Muhammad Sarwar was that he was identified by P. Ws. Muhammad Sharif, Tariq Masood and Aijaz before the trial Court after 05 years of the incident.
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(viii) That Appellant Muhammad Sarwar was arrested, during investigation a 30 bore pistol was recovered from him. A case under section 13(d) of the Arms Ordinance was registered against him and he was acquitted in Arms Ordinance case by 'Ind Judicial Magistra te Nawabshah in Criminal Case No,240 of 2002 vide Judgment dated 16.4.2003. Copy of the Judgment has been produced by Muhammad Sarwar in his statement recorded under section 342 Cr .P.C. (ix) That co-accused Ghulam Sarwar , Anwar, Umer and Lateef have been acquitted by the trial Court on same set of evidence. (x) That Appellant Muhammad Sarwar has been falsely involved in this case as Muhammad Sarwar deposed against I.O. S.H.O. Mazhar Hussain in Criminal Complaint No,37 of 1999, filed by co-accused Dildar before S.D.M. Naushero Feroze. (xi) That Investigating Of ficer admitted this fact in his cross-examination. (xii) That there are material contradiction s in the evidence of the witnesses namely Muhammad Shareef, Tariq Masood and Aijaz with regard to the receipt of the ransom by Appellant Muhammad Sarwar . (xiii) That place of incident has also not been established by the prosecution at trial. (xiv) That during the captivity of the abductees there was police encounter none received injury from either side. (xv) After release of the abductees they went home for 15 days and did not appear at Police Station for recording of their statements. (xvi) Identification of the accused was not conducted by the concerned Magistrates while observing the legal formalities. (xvii) It has come on record that before holding of identification parade accused was shown to the abductee. In support of his contentions he has relied upon the cases reported as Faiz-ur -Rehman v. The State (2012 SCMR 538), Muhammad Tufail v. The State (2013 SCMR 768), Mursal Kazmi alias Qamar Shal v. The State (2009 SCMR 1410 ), Mah Gul v. The State (2009 SCMR 4), Asif Jameel v. The State (2003 MLD 676), Irshad Ali alias Ishoo v . The State (PLD 2006 Karachi 178 ) and Tariq Pervez v . The State (2005 SCMR 1345). 10. Syed Meeral Shah Bukhari, A.P.G. argued that abductees Javed Iqbal Arain and Nazeer Ahmed have fully implicated the Appellant Muhammad Sarwar in the commission of the offence. He has further contended that Appellant kidnapped the abductees for the ransom and after receipt of ransom abductees were released. He further argued that trial Court has properly appreciated the evidence according to the settled principle of law. He prayed for dismissal of the appeal filed by the Appellant Muhammad Sarwar . 11. Syed Meeral Shah Bukhari, A.P.G. appearing on behalf of the Appellant/State in Criminal Acquittal Appeal No,D- 120 of 2004 has made following submissions:- (i) That the trial Court did not appreciated the evidence against the Accused/respondents brought on record by the prosecution. (ii) That both abductees implicated respondents/acquitted accused in their evidence brought on record before the trial Court. (iii) That the finding of the trial Court is based on misreading and non-reading of the evidence brought on record before the trial Court. 12. Mr . Hameed ullah Dahri, Advocate for respondent No,4/ acquitted accused Anwar made following submissions: (i) That Anwar/respondent was acquitted by the trial Court as his identification parade through the witnesses was held by Assistant Mukhtiarkar in the Jail premises and it was not according to the rules. (ii) That trial Court rightly acquitted respondent/accused. 13. Mr . Ayatullah Khowaja, Advocate for respondent No,1 Ghulam Sarwar made following submissions. Respondent No,1 Ghulam Sarwar had rightly been acquitted by the trial Court and trial Court has assigned sound reasons for his acquittal. (ii) Relatives of Ghulam Sarwar had filed application under section 491, Cr.P.C. against S.H.O. before Sukkur Bench regarding illegal detention of Ghulam Sarwar and others. (iii) Ghulam Sarwar has been acquitted in police encounter as well as in the case under Arms Ordinance.
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Learned advocates for the respondents/ acquitted accused in support of their contentions relied upon the cases reported as Mir Hassan v. The State (2013 YLR 1905 ), Faheem Ahmed Farooqui v.The State (2008 SCMR 1572 ) and Irshad Ali alias Ishoo v .The State (PLD 2006 Karachi 178 ). 14. We have carefully heard the learned counsel for the parties and scanned the entire evidence available on record. 15. Facts of this case and evidence find an elaborate mention in the judgment of the trial Court, as such, there is no need to repeat it. 16. At the cost of repeatation we discuss evidence of both abductees, I.Os. and Civil Judge and F.C,M. and Mukhtiarkar for just decision of these cases. P.W. Javed Iqbal [Abductee] has deposed that on 5.3.1999 he along with his maternal uncle Nazeer Ahmed left house in the Car to give Indent to the driver at about 8-15 p.m. They reached at Khaskheli watercourse there was jungle from both the sides. At that time all of sudden 12 persons emerged. They were armed with hatchets and guns. Car was stopped. He along with his maternal uncle was abducted in the Car by the culprits and detained at some unknown place in jungle. He had written "chit" to his relatives for making arrangement of Rs,50,00,000/- and his uncle had written "chit" of ransom of Rs,20,00,000/- for their release. He has further stated that he was released on 14.6.1999 and his maternal uncle Nazeer Ahmed 15 days prior to his release from the detention of the culprits and he was dropped by the culprits at Protective Bund near Dadu and his 161 Cr.P.C. statement was recorded by police on 16.6.1999. His 164 Cr.P.C. statement was also recorded and identification test was held for three accused persons. In the cross-examination abductee Javed Iqbal has admitted that during captivity in the jungle there was police encounter . He has further stated that police asked him to appear before Mukhtiarkar for identification parade as some suspects have been arrested. He along with Nazeer Ahmed abductee went to the office of Mukhtiarkar . He has stated that he identified the accused persons in the identification parade. P.W. No,4 Nazeer Ahmed was abductee. He has given the same episode of the incident there is no need to repeat it. But in the cross-examination has admitted that after their abduction there was police encounter . Police fired upon dacoits and the dacoits also fired on the culprits but nobody had sustained any injury. He has further stated that he was released by the culprits on 1.6.1999. Regarding identification parade, he has deposed that it was held before Assistant Mukhtiarkar and he identified accused Mohabbat Khoso, Sarwar and Pathan. From the evidence of Nazeer Ahmed abductee it is clear that it was joint identification parade of accused Mohabat, Sarwar and Pathan. P.W. Mazhar Hussain Investigating Officer has deposed that on 09.03.1999 he was posted as SHO at Police Station Bandhi, when, the case of this crime No, was delivered to him for the purpose of further investigation, during the course of investigation, he received spy information that accused persons of this case namely Haji Muhabbas Khoso, Pathan Khoso and Ghulam Sarwar Khoso and their associates were the culprits. On receiving this information, on 15.03.1999, he along with the police staff of different police stations, vide entry No,21/99 at about 5:30 a.m., went to the village of the accused Muhabbat Khoso entry was made at Police Station Naushero Feroz, wherefrom H.C. Allandino was also taken by I.O. for his assistance. Police reached at the house of accused Muhabbat Khoso, the father of the abductee namely Choudhri Manzoor Ahmed was with police. The dacoits on seeing he police party opened fires, upon police with intention to kill us, Police, after taking the position also fired upon them. During the course of firing, ASI Ali Hyder identified dacoits Haji Muhabbat Khoso, Pathan Khoso, Ghulam Sarwar Khoso. Firing continued for 15 minutes. The dacoits along with the abductees succeeded in running away in bushes. Police searched for these culprits but could not trace out them. Police went to the place where these dacoits were sitting, where there were beds and two "chappals". Choudhri Manzoor disclosed that these "chappals" belonged to his son abductee. Thereafter , he went to the Police Station Naushero Feroz where he lodged an - FIR bearing Crime No,27/1999 under sections 353, 324, 149, P.P.C. He produced attested copy of FIR 27 as Ex.60/A. this case was challenged by the Naushero Feroze Police Station before the concerned Court. During investigation on 11.06.1999, I.O. was informed by S.H.O. Police Station Nashwero Feroze that he had arrested accused Muhabbat Pathan and Sarwar Khoso. On the same date, I.O. left the P.S. along with his staff and reached at the Police Station Nashero Feroz. The accused were found confined in lock-up of Police Station
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Naushero Feroz they were arrested in this case. The mashirs were Muhammad Eissa and P.C. Sikandar . On 12th June we got remand of the accused from the court of learned Civil Judge Nawabs hah. On 13th June the accused were brought at the Police Station Bandhi for the purpose of interrogation during the course of interrogation, the accused person voluntarily prepared to produce crime weapons which they had used in the commission of offence. Investigating Officer along with police party and the accused persons left the P.S. to village of Anwar Dahri. Accused Haji Mohabbat voluntarily produced from bushes one K.K and one magazine along with 30 bullets. The No, of K.K. was 03241 Made in Pakistan. It was secured it was in working order . Subsequently , accused Pathan Khoso produced Repeater gun along with 10 cartridges. The accused Ghulam Sarwar Khoso had produced S.B. gun along with 10 cartridges, from plastic bag. Investigating Officer secured these weapons prepared such mashirnama in presence of mashirs ASI Khalid Husain, H.O Muhammad Eissa. The accused were asked about licenses of these weapons, they disclosed that they had no licenses. Subsequently , Investigating Officer returned to Police Station Bandhi and lodged FIR against three accused namely Muhabbat Khoso bearing crime No,27/99. Investigating Officer lodged FIR bearing crime No,28/99. This FIR was lodged against accused Pathan and accused Ghulam Sarwar Khoso. Investigating Officer recorded the statements of P.Ws. under section 161, Cr .P.C . On 26.06.1999, the abductees appeared at the Police Station. Bandhi Investigating Officer went along with the abductee Javed Iqbal and visited place of occurrence. It was shown by Javed Iqbal. Investigating Officer prepared mashirnam of the place of occurrence . The place of occurrence was situated in Khaskheli Water Course. Abductees were directed also to appear before the Assistant Mukhtiarkar Nawabshah for recording 164, Cr.P.C statements and identification parade. Investigating Officer reached before concerned court and handed over the custody of the accused persons to the Assistant Mukhtiarkar for the purpose of identification parade. After the identification parade custody of the accused persons was delivered to police by the concerned Assistant Mukhtiarkar . Then 164, Cr.P.C statements of the P.Ws were recorded by Mukhtiarkar . The case was finally challaned showing three accused persons in custody and remaining were shown as absconders. This challan was submitted on 19th June, 1999. Absconding accused were Umer Khoso, Barkat Khoso, Latif Khoso, Achar Khoso, Allah Rakhio Waggan and Anwar Dahri. Investigating Officer admitted in cross-examination that the culprits had fired when police party was 40/50 paces away from them. Police had fired but nobody was injured during firing and no abductee injured, no damage was caused to mobile van. Investigating Officer admitted that accused Anwar Dahri and Dildar Khoso had filed petition against him before. High Court. Investigating Officer has admitted that weapons produced in the Court were not sealed and recovered weapons were not sent to Ballistic Expert. PW. Mr. Saleem Qambrani Civil Judge and F.C.M. has deposed that 02.06.2000, he was posted as Joint Civil Judge and FCM Nawabshah, SHO Police Station Bandhi submitted letter to hold the identification parade for accused Anwar son of Nihal Dahri. Identification test was held under his supervision in District Jail Nawabshah. Magistrate arranged for 10 dummies in Jail. After completing all the formalities, the handcuf f of the accused was ordered to be removed. The directions were given to the accused to stand accordin g to his own choice he stood at Sr. No,2 in a row of dummies. He called P.W Javed Iqbal through Constable of the Jail Nawabshah. This P.W. appeared identified accused standing at Sr. No,02 to be the culprit. Second time, row of the dummies was arranged and accused was directed to take position on his own choice. He had taken position at Sr. No,06 in the row of dummies. P.W. Javed Iqbal was called and he had rightly picked out accused Anwar at. Sr.No,06. Third time, accused was asked to take his position according to his own choice, along with the dummies, he had taken his position at Sr.No,09, thereupon P.W Javed Iqbal was called and he picked out accused Anwar . Magistrate prepared the mashirnama in presence of mashirs S. Sikandar Shah and Fareed Ahmed Awan. Magistrate admitted in cross that in the identification memo he had not written the names of dummies but they were UTPs. He has admitted that the identification memo did not mention the role assigned to accused. It is admitted in cross that in the remakrs Magistrate has mentioned the accused was shown to Javed Iqbal 10/15 minutes prior to him through HC No,444 Ibrahim Gul of Jail Police in the Of fice of Assistant Superintendent Jail S.H.O. Bugthi was also in the of fice. P.W. Anwerdin has deposed that on 16.06.1999, he was Assistant Mukhtiarkar at Nawabshah, when SHO Police Station Bandhi had submitted letter before him for holding identification test of accused persons namely Haji Muhabat Khoso, Ghulam Sarwar Khoso and Pathan Khoso. The SHO disclosed that P.Ws. Javed Iqbal and Nazeer
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would identify accused persons. The P. Ws were made to sit on the Northern side of the Mukhtiarkar office at corner . Assistant Mukhtiarkar ordered the accused to take position in a row of dummies to the Northern side of the Mukhtiarkar office, according to their choice. The row of dummies was arranged to the Eastern side of the Mukhtiarkar office. The accused Haji Muhabat on his own choice stood to Northern.side in the row of dummies. He was at Sr. No,13. accused Ghulam Sarwar Khoso according to his own choice had taken position at Sr.No,20. Accused Pathan according to his own choice stood at Sr. No,6 with the dummies. He called through Peon of his office P.W Javed Iqbal and he was asked to identify any one of the accused persons, from the row. The P.W abductee had identified accused who were at Sr. Nos, 13, 20 and 25 respectively and they disclosed that they had committed offence. Assistant Mukhtiarkar subsequently , ordered the P.W. Javed Iqbal to go outside. He ordered accused persons to change their position along with dummies. Haji Muhabat Khoso stood at Sr. No, 17, Ghulam Sarwar Khoso stood at Sr. No,20 and accused Pathan stood at Sr. No,29 in the row of dummies. Through the Peon of the office, he called P.W Nazeer Ahmed and directed him to identify his culprits. This P.W while seeing the row of the dummies had picked up the accused persons at Sr. Nos, 17, 20 and 29 respe ctively . This P.W disclosed that these accused persons were the culprits of the incident. He prepared the mashirnama of identification test in presence of mashirs Muhammad Tahir and Kashif Maqsood. Mukhtiarkar admitted in cross that the names of the dummies were not noted down. He had not noted the facial and bodily description of the dummies. He admitted that dummies were not having clothes of the body similar to the clothes of accused persons. 17. We have perused the evidence minutely . It transpired that the name of Appellant Muhammad Sarwar did not appear in the FIR there was no evidence that Muhammad Sarwar had kidnapped abductees for ransom but there was only allegation against him that he had received the ransom but the date, time and place for payment of the ransom has not been established at trial. It appears from the evidence that another FIR was also lodged against Muhammad Sarwar under section bearing crime No,44 of 1999 at Police Station Bandhi under sections 506(2), 215, P.P.C. but name of Appellant Muhammad Sarwar was not mentioned in the said FIR. After arrest of accused Muhammad Sarwar he was not put to identification parade through witnesses. Appellant Muhammad Sarwar was arrested but during investigation no ransom amount was recovered from him. Both abductees Javed Iqbal and Nazeer Ahmed did not implicate Appellant Muhammad Sarwar that he kidnapped them for ransom and received amount. Only piece of evidence collected against A Muhammad Sarwar was that he was identified by prosecution witnesses Muhammad Shareef, Tariq Masood and Aijaz before the trial Court after 05 years of the incident. It is settled law that identification of accused before the trial Court was unsafe for conviction. It has come in evidence that Appellant Muhammad Sarwar was arrested during investigation and 30 bore pistol was recovered from him. He faced trial under the Arms Ordinance before the IInd Judicial Magistrate Nawabshah in Criminal Case No,240 of 2002 vide judgment dated 16.4.2003 he has been acquitted. Copy of the Judgment was produced by the accused Muhammad Sarwar in his statement recorded under section 342, Cr.P.C. It is matter of record that co-accused Ghulam Sarwar , Anwar , Umer and Latif have been acquitted by…
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