2012 M L D 401
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
Mullah GUL MUHAMMAD ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.77 of 2010, decided on 19th July, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 322 & 337 -L(2)---Qatl-bis-sabab, hurt ---Appreciation of evidence ---Benefit of doubt --
-Accused was not nominated in the F.I.R., whic h had been registered after preliminary
inquiry ---Accused was implicated in the case on the basis of the statements of the victims ---
No identification parade was held after arrest of the accused ---Victims who were also eye -
witnesses of the occasion had ide ntified the accused for the first time before Trial Court, but
they being not previously familiar to the accused, said identification needed corroboration,
which was lacking ---Mere identification of accused before the court was not enough ---
Investigating O fficer had failed to collect important evidence ---Evidence of the said
witnesses regarding identity of accused, therefore, could not be relied upon ---Accused had
been described as the owner of the Hotel from where the victims had been boarded on the
conta iner and proceeded to the deadly journey, but no interrelation of the accused with the
said Hotel was established on record ---Accused even was not proved to run the business of
said Hotel ---Prosecution had failed to connect the accused with the co mmission of the
offence ---Accused was acquitted on benefit of doubt in circumstances.
Farman Ali v. The State 1997 SCMR 971; Muhammad Azam v. The State 1997 SCMR 1489
and Asghar Ali v. The State 1992 SCMR 2088 ref
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 22 ---Identification parade ---Holding of identification test becomes necessary in the
case where names of the culprits are not given in the F.I.R. ---Holding of such test is a check
against false implication and it is a good piece of evidence against the genuine culprits.
Farman Ali v. The State 1997 SCMR 971 ref.
(c) Penal Code (XLV of 1860) ---
----Ss. 322 & 337 -L(2)---Qatl-bis-sabab, hurt ---Identification of accused in court ---Legal
requirement ---Identification in court of the accused w ho was produced months after the event
cannot satisfy the requirement of law for proving the identity of the culprit.
Asghar Ali v. The State 1992 SCMR 2088 ref.
Wali Khan Nasar for Appellant.
Haji Liaquat Ali for the State.
Date of hearing: 3rd N ovember, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The appellant Mullah Gul Muhammad through
instant appeal assailed judgment dated 17 -5-2010 of the Sessions Judge, Quetta, whereby he
was convicted for the offence punishable under section 322 Pakis tan Penal Code (P.P.C.),
and thereby sentenced to pay the Diyat amount of Rs.121,646 each, to the legal heirs of
each deceased, amounting to Rs.54,74,080, and in case of default it was ordered that he be
kept in jail till payment of the Diyat amount. T he appellant was further convicted under
section 337 -L (ii) P.P.C., and sentenced to suffer rigorous imprisonment for a period of two
years. It is his contention that the impugned judgment is contrary to Law and facts and also
contrary to the principles of safe administration of justice thus defective in nature. It is further
contention of the appellant that the trial court while deciding the matter has shown partiality,
as the main culprits of the case are acquitted of the charge, while the conviction was only
awarded to him in an arbitrarily, and haphazard manner. Furthermore, the trial court has also
erred in law while taking into consideration the only factor of heinousness of the offence, and
ignored the legal aspect of the matter, which caused grave in justice to the appellant. It is
further contended that the judgment of the trial court is based on surmises, as the findings of
the trial court are not based on the evidence available on record. Therefore, the doubt arising
from the same, benefit of which, has to be extended in favour of the appellant, but the trial
court has failed to exercise the same in his favour. The appellant has prayed for setting aside
of the impugned judgment, thereby his acquittal of the charge.
It is case of the prosecution tha t an F.I.R. No.86 of 2009, Police Station FIA AHTC, Quetta,
was registered on 5 -4-2009 at 8 -30 a.m. in respect of an incident, whereby it has been
reported that ---
"Consequent upon finalization of Enquiry No.86/09 of FIA AHTC Quetta it revealed that the
above named accused Ali Khan is the driver of the container/vehicle, and had been loaded/
packed with white shell Eggs in Karachi port for Qandhar Afghanistan. The said vehicle was
cleared by Recto International Karachi for onward journey. To this effect, a certificate was
issued to him with direction to be returned to Pakistan within 10 days. The accused driver
brought the vehicle/container from Karachi to Chaman. At the Chaman the said vehicle was
examined by the Custom Inspector Zubair Awan and Deputy Su perintendent Ikram Hussain
by clearing agent namely Shahwani Enterprises Chaman. The vehicle crossed over the border
at FIA Immigration Check Post on Qandhar on 1 -4-2009 and thereafter came back to
Pakistan. Investigation further revealed that the co -accus ed Gul Agha and Lala Agha by caste
are Tajik residing in Spin Boldak Afghanistan booked all those victims and deceased with the
accused Driver Ali Khan for their smuggling from Afghanistan into Pakistan for their
exploitation and force labouring. The victi ms disclosed that they are Afghan National,
accused Gul Agha and Lala Agha received substantial amount from them for taking into
Pakistan and thereafter, to Iran. The victims further disclosed that on 3 -4-2009, they were
confined and locked in the containe r by the agent. Gul Agha, Lala Agha and Ali Khan Driver
for the purpose of transportation from Afghanistan to Pakistan in clandestine manner. But due
to exhaust of Oxygen in the container they went into unconscious conditions and some of
them were expired. Enquiry further revealed that at about 5 -30 p.m. the container was found
parked, in the Hazar Ganji Addah outskirts Quetta and local people of the area when came to
know that some persons are found dead in the contained made hue and cry on which the local
police and administration rushed to the spot and brought all these persons to the Hospitals
where 45 persons found dead and 47 persons were found under treatment in the Hospital
because of suffocation and heat while 9 persons were in the custody of Local Police. In the
course of enquiry it further transpired that all these victims were Afghan Nationals and most
of them hailed to Kapisa and Paktia Province of Afghanistan. They have been trafficked from
Afghanistan into Pakistan for the purpose of their expl oitation and force labouring by the
accused persons without any lawful authority for obtaining monetary benefits.
The above act of accused constitutes the commission of offence punishable under sections 3,
4 Prevention of Human Trafficking Ordinance, 200 2. Hence registration of the case and its
investigation is taken up by the undersigned."
Whereafter, the case was challaned against Ali Khan, Raz Muhammad, Gul Agha alias Lala,
Juma Gul, Noor Muhammad, Allauddin, Syed Mir Hassan and Abdul Nafay, Haji Kha n
Muhammad and Mullah Gul Muhammad. Except Haji Khan Muhammad and Mullah Gul
Muhammad, the present appellant, the remaining accused persons were not arrested, and
remained absconders till present. During course of the trial the charge was framed on 16 -6-
2009. Both the accused persons, facing the trial, denied the charge and claimed the trial,
whereupon 15 witnesses appeared on behalf of the prosecution. In defence both the accused
persons neither produced any evidence, nor got recorded their statements on oath. The trial
court, after completion of the trial. founding him (appellant) guilty of the offence, thereby
convicted Mullah Gul Muhammad (present appellant) and awarded sentence in terms as
mentioned in preceding para. The second accused person namely H aji Khan Muhammad was
acquitted of the charge by giving him benefit of doubt. The appellant feeling aggrieved of the
judgment filed the present appeal.
Learned counsel for the appellant and counsel appearing on behalf of the State were heard,
and record was perused. The learned counsel for the appellant contended that the appellant
was not nominated in the F.I.R. nor even in the Enquiry Report, on basis of which F.I.R. was
registered, rather he was only implicated on basis of statement of the prosecution witness
No.1 Hameedullah. He further argued that the trial court while giving decision, simply relied
on improved statements of the witnesses, and failed to give any legal reasoning to its
findings. It is further his argument that the person, who was nomin ated as driver of the
vehicle, has been acquitted on basis of same set of evidence, thus he required same treatment.
It is further his argument that the trial court has failed to connect the appellant with the
commission of the offence, while no specific r ole has been assigned to the appellant neither
in contents of F.I.R., nor by the witnesses. Furthermore, no evidence was produced, nor any
document was placed on the record to establish, that the alleged Madina Hotel was either
owned by the appellant, or h e run business therein. The learned counsel further contended
that there are instances of non reading, and misreading of the evidence, while the trial court
has failed to appreciate the material present on record in its true perspective. In reply it was
argued that there are no improvements in the statements of the witnesses, while all the
victims appearing before the trial court recognized, and identified the appellant, and also
assigned him a specific role in commission of the offence. It is further his a rgument that the
occurrence of the incident was not denied, which established the case of the prosecution. It
was further his contention that the alleged Madina Hotel was run by the present appellant,
and in said respect there is no improvement in the stat ements of the witnesses. Furthermore,
there was no need for conducting of identification parade of the accused persons. It was also
his argument that accused Khan Muhammad was implicated in commission of the offence as
driver of the vehicle, but he was not identified by the victims of the incident, rather present
appellant was specifically identified by the victims, while they were appearing before the
court for recording of their statements. It was further his contention that the trial court has
already ta ken a lenient view in the matter, therefore, the appellant does not deserves any
further leniency. He strongly contested the appeal.
The appellant Mullah Gul Muhammad has been implicated in the instant case being the
person, who arranged for the containe r, which lacked facilities of oxygen, fan, and electricity,
with no passage of fresh air, thus due to his act of negligence, 45 persons died due to
suffocation, while remaining 48 persons were hurt, and become unconscious, but fortunately
survived. The sec ond accused person, Khan Muhammad was implicated as driver of the
vehicle, who left unattended the vehicle at the terminal, and absconded from the site. In view
of the evidence present on record, it was rightly held by the trial court that the persons foun d
dead in the vehicle bearing No.LCA -045 met with unnatural death. While the remaining
persons, who survived in the incident, were hurt in the incident. The respective Medico Legal
Certificates are brought on record through P.W.7 Dr. Baqir Shah, Medico Leg al Officer and
P.W.13 Dr. Noor Muhammad. The fact of unnatural death of the victims, and sustaining
injuries are established by the prosecution. But in addition it is to be established by the
prosecution, that the act, as alleged, was committed by the nomi nated accused persons. The
case was tried to the extent of only two accused persons namely Mullah Gul Muhammad, and
Haji Khan Muhammad. Therefore, their roles to the commission of the offence were to be
established specifically. As per contents of the F.I. R., only three persons were nominated
initially, namely Ali Khan being the driver of the container, Gul Agha and Lala Agha being
the persons allegedly booked the victims for their illegal transportation to Pakistan, thereafter,
to Iran. It is further appar ent from the contents of the F.I.R. that, on basis of the depositions
made by the injured/victims, allegedly the persons namely Gul Agha, and Lala Agha
confined and locked the victims in the container, but due to exhaust of oxygen, they became
unconscious and some of them expired. The names of the persons facing trial, including the
present appellant, no where appeared in the contents of the F.I.R. But according to contents
of the Police Report/challan, statements of six victims were got recorded before the Judicial
Magistrate -VII, Quetta, wherein the victims stated that they were loaded in the container on
direction of a sub -agent namely Mullah Gul Muhammad, and the driver of the said container
namely Ali Khan or Raz Muhammad alias Tor Jan. Therefore, on ba sis of these statements
the appellant along with co -accused Haji Khan was implicated in present case, thereafter,
arrested and faced trial, whereby the appellant was sentenced, while the co -accused Haji
Khan was acquitted of the charge.
The burden rests on the prosecution to establish involvement of the appellant in commission
of the offence. Three of the victims namely Hameedullah, Agha Gul and Shakarullah
appeared as prosecution witnesses Nos.1, 2 and 3, and got recorded their statements. P.W.1
Haimeedu llah while appearing before the court stated that, after covering the distance on foot
and on vehicle they crossed the border and reached at Madina Hotel, where one person
named Mullah Gul served them tea, thereafter, brought a container, and boarded them in it.
The witness identified the accused present in the court as Mullah Gul Muhammad/the present
appellant. P.W.1 further stated that he was deported to Afghanistan by the concerned
Authorities, while he was called back two days earlier, and produced befo re the Qazi/Judge.
He referred to recording of his statement by the said Qazi/Judge. P.W.2 Agha Gul, is also one
of the victims, his statement was also to the effect that after crossing of the border they were
brought to Madina Hotel, where a container was brought by one person namely Mullah Gul
Muhammad. He also identified the accused/ present appellant as said Mullah Gul
Muhammad. He further stated that as there was no way of air in the container, they raised
objection on the same, but the person contende d them by saying that the way is hardly of 15
to 20 minutes drive. P.W.3 Shakarullah, being one of the victims also stated that from Spin
Boldak they reached, at Madina Hotel, where tea was served. Whereafter, a container was
brought by Mullah Gul Muhammad . He identified the accused Mullah Gul Muhammad as the
person; he also identified the second accused person, being accompanied with him
(appellant). All the three witnesses though identified accused person/present appellant being
the person, who brought th e container, wherein they were boarded, which lacked facilities of
fresh air and caused hurt and damage to their person. All the three witnesses, as per their own
statements, were not already familiar with the appellant, before the incident. But they
ident ified the appellant before the trial court, while recording their statements. The perusal of
the record reveals that according to statement of P.W.14 Najamuddin, who is the
Investigating Officer, he got recorded statements of six victims, before Judicial M agistrate.
He further admitted that during course of investigation no identification parade was held.
From this set of evidence this fact has come on record that, the appellant was implicated in
present case on basis of the statements of the six victims, recorded before the Judicial
Magistrate, who appeared as prosecution witness No.9. The witness tendered the statements
recorded under provisions of Section 164 Criminal Procedure Code (Cr.P.C), as Exh.P/9 -B to
Exh.P/9 -G. The perusal of these statements re veals that victim Roohullah stated that the name
of the owner of the hotel was heard as Mullah Gul and he can identify him. This victim has
not been produced. Victim Hameedullah, who appeared before the court as PW -1, deposed
that the name of the person in the hotel was being heard as Mullah Gul, who asked them to
board on the container. Victim Agha Gul in his statement stated that they were brought at
Madina Hotel in Datsun vehicles. The name of the owner of the Hotel was Mullah Gul. This
victim was also n ot produced as witness before the trial court. Victim Shams -ur-Rahman in
his statement, before Judicial Magistrate, stated that the men in the hotel were calling the
owner in the name of Mullah Gul, and he can identify him if he appears before him. This
victim also not appeared before the trial court. The victim Abdul Haq in his statement only
stated that the name of the owner of the Hotel was Mullah Gul. While victim Imam Jan made
statement to the effect that the workers of the hotel were calling the ir owner as Mullah
Gul. Though all these victims in their statements named the person described ( ) as
being named as Mullah Gul, but none of them described his physical description, other
identification mark, his colour, height and othe r details. Rather they only stated that the name
of the person/owner of the hotel was Mullah Gul. While appearing before the court P.W.1,
P.W.2 and P.W.3 though identified the appellant as the same person, but the mere
identification before the court durin g course of trial, is not enough, rather something more is
required.
In present case it is an admitted fact that the appellant was not nominated in F.I.R. While he
was implicated on basis of the statements of the victims, that too recorded on 9 -4-2009. T he
F.I.R. of the incident was registered after preliminary inquiry, but the name of the appellant
does not appear, meaning thereby that at relevant time none of the victims nominated the
present appellant. Furthermore, after arrest of the appellant, test o f identification was to be
made. But during course of investigation, no identification parade was held, nor the
investigating authorities tried to get identified the accused persons, under custody, by the
victims of the occasion, rather for the very first time they identified the appellant before the
trial court. As the victims, who were also eye -witnesses of the occasion, though identified the
appellant being one of the culprits before the court, but as they were not familiar to the
accused person/appellan t previously and not named him at the first instance, therefore, the
identity of the accused person need corroboration, which should be in form of an earlier
identification proceedings, which have not been carried out in present case. It has been held
by the honourable Supreme Court in case of Farman Ali v. the State, reported in 1997 SCMR
page -971:--
"Holding of identification test become necessary in cases; when names of the culprits are not
given the F.I.R. Holding of such lest is a check against false implication and it is a good piece
of evidence against the genuine culprits."
It was further held by honourable Supreme Court in case Muhammad Azam v. The State,
reported in 1997 SMCR Page 1489, that: --
"No identification parade was carried out which was very much necessary in view of the
victim's initial report lodged with the police. As such the identify of the accused connecting
them with commission of the offence is missing."
The honourable Supreme Court further held in case Asghar Ali v. The Sta te, reported in 1992
SCMR 2088 that:
"The identification in Court of a person produced as an accused months after the event could
not satisfy the requirements of law for proving the identify of the culprit."
Keeping in view, in present case also, the m ere identification before the court is not enough.
The Investigating Officer failed to collect important piece of evidence. Therefore, less
reliance can be made on the statements of P.W.1, P.W.2 and P.W.3 in respect of
identification of the accused person the appellant.
The evidence so produced before the trial court, the appellant was described as owner of one
Madina Hotel, from where the victims were boarded on the container and proceeded to the
deadly journey. Though the prosecution tried to establish that Madina Hotel was owned and
run by the appellant. To establish existence of the Hotel, they produced the mutation entry of
land existed in names of Kamal, Hayat, Hazrat, Haji Khan, Dawar sons of Khuda -e-Raheem
as Exh.P/6 -C, who were not coupled in inve stigation. A report of Tehsildar Killa Abdullah
dated 22 -5-2009, which is to the effect: --
These documents are less helpful to the case of the prosecution, as the name of the appellant
no where appeared therein. There is not a single evidence, except sta tements of the victims
P.W.1, P.W.2 and P.W.3 to connect the appellant with the said Hotel. The Madina Hotel may
be existed in actual, but the fact, which was required to be investigated, and the material be
collected, which can show the interrelation of t he appellant with the alleged Hotel. The
Investigating Officer remained contended only on procuring the relevant entries effected in
Revenue Record, which otherwise does not contain name of the appellant, either as an owner
or as an occupier. This piece of evidence is also not helpful to establish the case of the
prosecution.
Keeping in view the above mentioned facts except the statements of three prosecution
witnesses, no other piece of evidence is against the appellant, to connect him with
commission o f the offence. Even the recorded owners were not coupled with the
investigation. Furthermore, no material was collected, nor produced before the Court that the
business of the said Hotel was run down by the appellant. Less reliance can be placed on
these p ieces of evidence. The prosecution has failed to link each and every piece of evidence
with each other to complete the chain.
The trial court through impugned judgment only after reproduction of whole of the evidence
concluded that the appellant committe d offence of Qatal -e-Bisbab and hurt to victims, and
also committed offence of illegal human trafficking, thus sentenced him to the terms as
mentioned in preceding paras, that too only to the extent of sections 322 and 337 -L(ii), P.P.C.
The trial court fai led to dilate on the material placed on record and also failed to assess the
same. The trial court seemed to be convinced only by the fateful event, whereby 45 persons
lost their lives, and 48 persons were hurt. The trial court made an error while holding as such,
in view of above discussion.
It is painfully noted that the incident was of such a nature, whereby lives of 45 persons were
at stake; the matter was to be dealt with due care and utmost caution. But it is highly
unfortunate that this was not do ne in present case. Only two of the nominated persons were
arrested, the remaining persons remained absconder in all these years. The investigation was
not conducted properly. The material required to be collected by the Investigating Authorities
were not collected. There is complete failure on their part, which is highly unfortunate. Strict
action is required to be taken against them. Therefore, it deemed proper in the circumstances,
the matter be brought into notice of the competent Authority. The Registr ar of this court is
directed to send copy of this judgment to Inspector General Police and Director General FIA
to look into the matter and take appropriate steps against concerned officers, specifically the
Investigating Officers of the case, for conducti ng poor investigation.
In view of above discussion the prosecution has completely failed to connect the appellant
with commission of the offence. The variations and discrepancies, as pointed out herein
above, lessen the value of the material placed on th e record. And on this set of evidence no
conviction can be granted to the appellant. A reasonable doubt appeared in the circumstances,
the benefit of the same has to be exercised in favour of the accused person/appellant. In view
of above discussion, the a ppeal is hereby accepted. The judgment dated 17 -5-2010 of
Sessions Judge, Quetta is hereby set aside. The appellant Mullah Gul Muhammad son of
Syed Muhammad is acquitted of the charge from the case F.I.R. No.86 of 2009, Police
Station FIA, Quetta. He be re leased at once, if not required in any other case.
N.H.Q./170/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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