2023 P Cr. L J 1043
[Balochistan]
Before Zaheer- ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ
ABDUL GHAFFAR--- Appellant
Versus
The STATE--- Respondent
Criminal Appeals Nos. (T) 44, (T) 45 and (T) 46 of 2022, decided on 21st November, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 365, 395, 324, 353, 186 & 34---Abduction for ransom, dacoity, attempt to commit
qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty,
obstructing public servant in discharge of public functi ons, common intention---Appreciation
of evidence--- Benefit of doubt ---Accused was charged that he along with his co- accused
kidnapped the clerk and brother of the complainant and also took account registers and cash amount of diesel amounting to rupees five million and later, encounter took place which resulted into death of two accused persons ---Accused was not nominated in both the FIRs ---
Subsequently, FIR was lodged on 17.01.2022 at Levies Station in which it was mentioned that encounter took place which resulted into death of two accused ---Accused was not even
mentioned in the third FIR regarding alleged encounter between the Levies Personnel and accused party ---Features of accused were also not mentioned in the FIR lodged by the Levies
Personnel, nevert heless, it had been alleged that subsequently the accused was arrested in
wounded condition and no weapon was recovered from the possession of accused---Statements of abductees had immense significance considering the attending circumstances of the case---Both abductees were allegedly kidnapped and subsequently, after encounter in which two accused died, were recovered ---Both abductees were produced by the prosecution
as witnesses in all the three cases and it was found that their statements had been reprod uced
in all three cases which were found to be verbatim and was gross -violation of S. 356(1),
Cr.P.C ---Circumstances established that the prosecution had failed to prove its case against
the accused beyond any shadow of doubt ---Appeal against conviction wa s allowed, in
circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 365, 395, 324, 353, 186 & 34---Abduction for ransom, dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty,
obstructing publ ic servant in discharge of public functions, common intention---Appreciation
of evidence ---Conflict in statements of abductees ---Accused was charged that he along with
his co -accused kidnapped the clerk and brother of the complainant and also took account
registers and cash amount of diesel amounting to rupees five million, and later, encounter
took place which resulted into death of two accused persons ---Perusal of statements of two
abductees were found to be contradictory on material points ---Abductee had not recognized
the accused as an accused who had any role to play in his abduction, while the other
abductee, in his Court statement, had recognized the accused as one of the accused who was present with main accused who had abducted clerk of complainant ---Absolutely no role had
been attributed to the accused by any of the witnesses ---Identification of accused in Court by
the abductee had been considered incriminatory by the Trial Court for the purpose of convicting the accused--- Since, admittedly the accu sed was not known to the abductees and
the Investigating Officer did not conduct any identification parade, so identification of accused by abductee in Court was not safe as abductee had not assigned any role to the accused in the whole episode, starting f rom his abduction till his recovery ---Circumstances
established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt ---Appeal against conviction was allowed, in circumstances.
Imran Ashraf v. The State 2001 SCM R 424 and Majeed alias Majeedi v. The State
2019 SCMR 301 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 365, 395, 324, 353, 186 & 34---Abduction for ransom, dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty,
obstructing public servant in discharge of public functions, common intention---Appreciation of evidence ---Contradictions in ocular account and medical evidence--- Accused was charged
that he along with his co- accused kidnapped the clerk an d brother of the complainant and
also took account registers and cash amount of diesel amounting to rupees five million, and
later, encounter took place which resulted into death of two accused persons ---Record
showed that it was the case of prosecution that encounter took place on 17.01.2022 at 06:30 a.m., while the accused was arrested on the same day at 05:00 pm ---Investigation Officer had
alleged that the accused was arrested in wounded condition and subsequently at 05:30 p.m. he was brought to the Civi l Hospital for treatment and medical examination ---Perusal of
Medico -Legal Certificate of accused narrated a different story as it was mentioned that the
injury received by the accused in between thumb and index figure of right hand was one or two days old, so the Medico Legal Certificate contradicted the prosecution version that encounter took place at 06:30 a.m. and accused was arrested approximately 11 hours later, on same day ---Said contradiction had also caused doubts about the veracity of prosecution
version--- Circumstances established that the prosecution had failed to prove its case against
the accused beyond any shadow of doubt ---Appeal against conviction was allowed, in
circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 365, 395, 324, 353, 186 & 34 ---Abduction for ransom, dacoity, attempt to commit
qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty,
obstructing public servant in discharge of public functions, common intention---Appreciation of evidence ---Place of incident doubtful ---Accused was charged that he along with his co -
accused kidnapped the clerk and brother of the complainant and also took account registers
and cash amount of diesel amounting to rupees five million, and later, encounter took place
which resulted into death of two accused persons ---Record showed that the Investigation
Officer did not collect any blood sample from the place of incident where according to prosecution story the encounter had taken place, so the place of incident where t he encounter
took place had become suspicious ---Absolutely no role had been assigned to the accused
during the encounter and when allegedly he was arrested subsequently, no weapon was
recovered from his possession which could connect him with the commissio n of alleged
offence---All the said aspects of the matter had casted doubts upon the prosecution version---
Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt ---Appeal against convictio n was allowed, in
circumstances.
Naveed Asghar's case PLD 2021 SC 600 rel.
Allauddin Baloch for Appellant.
Sudheer Ahmed, Additional Prosecutor General for the State.
Date of hearing: 7th October, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---We intend to decide the above
captioned appeals through this common judgment as the facts and circumstances emanating from FIR Nos. 01, 02 and 10 of 2022 are connected to each other and while perusing the
record of these appeals we came across certain intermi ngling facts.
FACTUAL MATRIX OF THREE FIRS IN WHICH THE APPELLANT WAS TRIED AND WAS SUBSEQUENTLY CONVICTED:
1st FIR:
2. On 14.01.2022, the complainant Muslim reported to PS City Panjgur that he is in the
business of diesel and one Hafeezullah is his clerk . On 12.01.2022 one Moheem called
the brother of complainant namely Muhammad Sadiq and gave him the message that inform Muslim to handover the house at Quetta to him. The complainant mentioned that on the eventful day at 11:00 a.m., said Moheem along with son of complainant namely Asadullah
and three unknown persons came at the business place of complainant and kidnapped his
clerk Hafeezullah and also took account registers and cash amount of diesel amounting to
rupees five million. This incident was repo rted by the complainant, resultantly, FIR
No.10/2022, dated 14.01.2022 under sections 365, 395, 34, P.P.C. was lodged by the
complainant at PS City Panjgur.
2nd FIR:
3. Same complainant of FIR No.10/2022, i.e. Muslim, on 15.01.2022 again reported to
Tehsil dar Paroom that on said date i.e. 15.01.2022 at 12:15 a.m., his brother namely Munir
Ahmed was sleeping in his house when Moheem son of Ali Bakhsh and Asadullah (son of
complainant) along with other five armed persons came and kidnapped the brother of comp lainant. The complainant further mentioned the facts of FIR No.10/2022 in this FIR as
well in which the complainant's clerk was kidnapped and account registers and cash
amount were taken by the accused, resultantly, FIR No.02/2022, dated 15.01.2022 under
sections 365, 34, P.P.C. was also lodged by the complainant Muslim at Levies Station
Paroom District Panjgur.
3rd FIR:
4. On 17.01.2022, the complainant Asghar Ali, Incharge Special Force, Panjgur lodged
FIR No.01/2022 at Levies Station Kallag District Panjgur under sections 324, 353, 186, 34,
P.P.C. stating therein that on 17.01.2022, in order to recover the abductees, the complainant
and other levies personnel were patrolling the area, meanwhile spy information was received
that the accused along with abd uctees are present in the area of Soran. The complainant
mentioned that on this information at about 06:30 a.m., they reached at the spot where encounter took place, resultantly two accused i.e. Asad son of Muslim and Faheem son of Ali Bakhsh died, while a bductees Munir Ahmed and Hafeezullah were recovered. The weapons
were also found which were taken into possession.
5. The perusal of abovementioned FIRs transpires that Muslim is complainant of FIR
Nos.10 and 02 of 2022. In first FIR, his clerk was abducted by Moheem and by none
other than his own son Asadullah who had taken away the cash amount of rupees five million as well. On the very next day, as per contents of 2nd FIR, the same accused persons abducted
the brother of complainant namely Muhamma d Sadiq and eventually encounter took place.
The son of complainant namely Asadullah died during the encounter along with co- accused
namely Faheem, while the Levies authorities successfully recovered abductees i.e. Munir Ahmed and Hafeezullah.
6. The prose cution case against the appellant is that the appellant Abdul Ghaffar was
arrested in wounded condition after the encounter in Tehsil Gowargo District Panjur. After investigation, report against the appellant under section 173, Cr.P.C was filed and the tri al of
appellant in FIRs Nos.10 and 02 of 2022 was committed to the Court of Special Judge, Anti -
Terrorism Court, Panjgur, whereas the trial of appellant in FIR No.01/2022 was committed to the Court of Sessions Judge, Panjgur. After recording the prosecutio n evidence, the trial
Court found the appellant guilty in all three cases and vide judgments dated 20.05.2022 (impugned herein), convicted and sentenced the appellant in the terms, detail whereof is provided herein below:
In FIR No.10/2022:
"---- so accused facing trial Abdul Ghaffar son of Brahim is convicted under section
365- A, P.P.C. and sentenced to suffer life imprisonment with fine of Rs.1,000,00/ -
(rupees one lac) and in default whereof to suffer S.I for one (01) year, similarly as section 7 of ATA is proved, therefore, he is also convicted under section 7 of ATA
and sentenced to suffer life imprisonment with fine of Rs.1,000,00/ - (rupees one lac)
and in default whereof to suffer S.I for one (01) year".
In FIR No.02/2022:
"---so accus ed facing trial Abdul Ghaffar son of Brahim is convicted under section
365- A, P.P.C. and sentenced to suffer life imprisonment with fine of Rs.1,000,00/ -
(rupees one lac) and in default whereof to suffer S.I for one (01) year, similarly as
section 7 of ATA is proved, therefore, he is also convicted under section 7 of ATA
and sentenced to suffer life imprisonment with fine of Rs.1,000,00/ - (rupees one lac)
and in default whereof to suffer S.I for one (01) year."
In FIR No.01/2022:
"--- so accused facing tri al Abdul Ghaffar son of Brahim is found guilty of sections
324, 353, 186, P.P.C. and he is sentenced under section 324, P.P.C. to suffer seven years' R.I with fine of Rs.20,000/ - (rupees twenty thousand) and in default whereof to
suffer S.I for six (06) mo nths. Similarly on proving the accused is also convicted for
offence under section 353, P.P.C. to suffer for a period of one (01) year's R.I with fine of Rs.10,000/ - (rupees ten thousand) and in default whereof to suffer S.I for three (03)
months. While be nefit of section 382 -B, Cr.P.C is also extended in his favour".
SUBMISSION OF LEARNED COUNSEL FOR THE APPELLANT AND LEARNED ADDITIONAL PROSECUTOR GENERAL:
7. Learned counsel for the appellant contended that the prosecution had not proven the
case against t he appellant beyond reasonable doubt. Learned counsel further contended that
no independent corroboration from any source was available on record but even then, despite material contradiction between the statements of abductees Hafeezullah and Munir Ahmed,
the appellant was convicted and sentenced by the trial Court. Learned counsel further contended that the charge against the appellant was not proved beyond reasonable doubt and the trial Court has illegally relied upon the prosecution evidence which, according to learned counsel, was not trustworthy.
8. Learned Additional Prosecutor General, while supporting the impugned judgments,
contended that the appellant was arrested after raid and was duly identified by the abductees before the trial Court, therefor e the guilt of appellant stands proved beyond any doubt.
Arguments of learned counsel for the appellant and learned Additional Prosecutor
General were considered and thoroughly the relevant record perused.
DETERMINATION:
9. Muslim son of Pir Jan is the co mplainant of FIR No.10/2022, lodged on 14.01.2022 at
PS City Panjgur in which he mentioned that his clerk along with cash amount was
kidnapped by his son namely Asadullah, one Moheem and three unknown persons. The same complainant, on 15.01.2022, lodged F IR No.02/2022 at Levies Station Paroom in which he
mentioned that again his son Asadullah, said Moheem along with five unknown persons have
kidnapped his brother namely Munir Ahmed. The appellant is not nominated in both the FIRs. Subsequently, FIR No.01/2022 was lodged on 17.01.2022 at Levies Station Kallag by Incharge Special Force Levies Panjgur in which it was mentioned that encounter took place which resulted into death of accused Asadullah and Faheem. The appellant is not even
mentioned in the 3rd FIR regarding alleged encounter between the Levies Personnel and
accused party. The features of appellant are also not mentioned in the FIR lodged by the
Levies Personnel, nevertheless, it has been alleged that subsequently the appellant was arrested in wounded condition from the area of Hadian Tehsil Gwargo and no weapon was recovered from the possession of appellant. After investigation, separate challans were filed in all the three cases and after full -fledged trial the appellant was convicted and sentenced in
the terms mentioned above.
10. The statements of abductees namely Hafeezullah and Munir Ahmed have immense
significance considering the attending circumstances of the case. Both abductees were allegedly kidnapped and subsequently, after encounter in which Asadullah and Faheem died, were recovered. The both abductees were produced by the prosecution as witnesses in all the three cases and it is found that their statements have been reproduced in all three cases which
are found to be verbat im and is gross -violation of section 356(1), Cr.P.C. For ready
reference, section 356(1), Cr.P.C is reproduced:
"356. Record in other cases: (1) In trials before Courts of Session and in inquiries
under Chapter XII the evidence of each witness shall be ta ken down in writing in the
language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by
the Magistrate or Sessions Judge".
11. The perusal of statement s of Hafeezullah and Munir Ahmed (abductees) are found to
be contradictory on material points. The abductee Munir Ahmed has not recognized the appellant as an accused who had any role to play in his abduction, while the abductee Hafeezullah, in his Court s tatement, has recognized the appellant as one of the accused who
was present with main accused who had abducted Hafeezullah. Absolutely no role has been attributed to the appellant by any of the witness. The identification of appellant in Court by the abdu ctee Hafeezullah has been considered incriminatory by the trial Court for the
purpose of convicting the appellant. Since admittedly the appellant was not known to the abductees and the Investigation Officer did not conduct any identification parade, so identification of appellant by abductee Hafeezullah in Court is not safe as Hafeezullah had
not assigned any role to the appellant in the whole episode, starting from his abduction till his recovery. The question of identification of accused and its significa nce in a criminal trial
has been discussed by the Hon'ble Supreme Court of Pakistan in a case titled as Imran Ashraf v. The State
1, the relevant excerpt is reproduced:
"43. The process of identification of the accused persons by the time has gained signif icance due to non -arresting of the accused persons at the spot. Therefore,
relying on such identification a greater amount of care should be applied in order to avoid injustice and prejudice to the accused persons who have not been accurately identified bu t convicted believing such evidence against them. In this regard, in the
foreign countries lot of works has been done. Relevant paras, from the treaties of Lord
Devlin are reproduced hereinbelow -
"Lord Devlin begins by referring to some, very celebrated c ases totally illegal
convictions in the last seventy or eighty years. Thus about eighty years ago a man called Adolf Beck was convicted and Lord Devlin writes: --
Beck was twice wrongly convicted, having been identified in 1896, by eleven witnesses and in 1904, by four. This miscarriage of justice was the goad which finally
pricked Parliament into setting up the Court of Criminal Appeal ....In 1911, a man on a charge of murder was identified by no less than seventeen witnesses, but fortunately, was able to establish an irrefutable alibi. In 1928, Oscar Slater, after he had spent nineteen years in prison and after a public agitation in which many distinguished people joined, he had his conviction for murder quashed; he had been
identified by fourteen witnesse s. "
Then the learned author refers to the two cases which led the Home Secretary to
request him to hold a fresh enquiry. The learned author writes: --
"In 1974, two shattering cases of mistaken identity came to light within four weeks of each other. In t he first of them Mr. Doughery was convicted of shop- lifting, having
been identified by two witnesses, at a time when he was on an excursion with some twenty other persons. The accidents and blunders which led to his conviction, and to his appeal from it be ing dismissed, are not relevant here. After he had served most of
his sentence in prison and on a reference back to the Court of Appeal by the Home Secretary, Mr. Dougherty got his alibi evidence before the Court and the prosecution threw up the sponge. This was on 14th March, 1974. On 5th April, the Home
Secretary discharged with the grant of a free pardon a Mr. Virag from the prison in which he had been for five years. As was conclusively provided in the subsequent inquiry, he had been wrongly identified by eight witnesses, four of them Police Officers, on six different occasions."
This brief of illegal convictions is all the more depressing because it is clear that errors in identification cannot be prevented by increasing the number of identifying witne sses or by having resort to the evidence of Police Officers, and indeed Virag's
case proves beyond doubt the fallacy of assuming that Police Officers have extraordinary powers of observation, What then is the solution of this harrowing problem? In our opinion, the only safeguard against illegal convictions is that the Judge or Judges hearing the case should be conscious of the dangers inherent in the identification of accused by witnesses who are total strangers to them.
Reverting, however to the learned a uthor, he made two recommendations to the
British Government. In this connection, the learned author writes: --
"The first recommendation was for an absolute and unconditional rule that the jury should be directed or warned about the dangers of identificat ion evidence. The second
was for a general rule that the jury should not be allowed to 'convict on eye -witness
evidence alone. This rule had to be general and not absolute because admittedly there would be exceptions, e.g. when the witness was identifying someone he knew well or who had been under frequent or prolonged observation."
As we do not have the jury system, the first recommendation would be translated into
our procedure, mean that the Judges hearing a case should be aware of the dangers inherent in the identification of strangers by witnesses, who have seen them very briefly and this coincides with our own views on the matter. The second recommendation, however, is very wide, and it is not necessary for us to decide so wide a proposition, as the question before us is whether it would be safe to base a
conviction on the evidence of one identifying witness only, because he was an honest witness. Now, although the witness was an honest witness, the dangers of errors in identification are so g reat that in our humble opinion, safe in exceptional
circumstances, it would not be safe to base a conviction on the evidence of a solitary eye-witness if the witness has only had a fleeting glips of the assailant, And, as in the
instant case, there are no special circumstances, we hold that the learned Chief Justice
erred in convicting the respondent solely on Saadullah Khan's evidence".
(Emphasis provided)
The question of identification before the Court was also considered by the Hon'ble
Supreme Court of Pakistan in the case titled as Majeed alias Majeedi v. The State
2, the
relevant excerpt is reproduced:
"5. The prosecution had also maintained that during the trial the appellant had been
identified by the eye -witnesses before the trial court but this Court has repeatedly
held that identification of a culprit before the trial court during the trial is generally
unsafe because the members of the complainant party get many opportunities to see
the accused persons before the trial court on many previ ous occasions before making
their depositions. In the present case different eye -witnesses had attributed different
roles to the appellants before the trial court and, thus, such identification of the
appellant has failed to inspire our confidence".
(Empha sis provided)
12. It is the case of prosecution that encounter took place on 17.01.2022 at 06:30 a.m.,
while the appellant was arrested on the same day at 05:00 p.m. The Investigation Officer has alleged that the appellant was arrested from the area of Had ian Tehsil Gwargo in wounded
condition and subsequently at 05:30 p.m. was brought to the Civil Hospital for treatment and
medical examination. The perusal of Medico Legal Certificate ('MLC') of appellant narrates
a different story as it is mentioned that the injury received by the appellant in between thumb
and index figure of right hand is one or two days old, so the MLC contradicts the prosecution version that encounter took place at 06:30 a.m. and appellant was arrested approximately 11 hours later, on s ame day. This contradiction has also caused doubts about the veracity of
prosecution version.
13. The Investigation Officer did not collect any blood sample from the place of incident
where according to prosecution story the encounter had taken place, so t he place of incident
where the encounter took place has become suspicious. Absolutely no role has been assigned
to the appellant during the encounter and when allegedly he was arrested, subsequently no
weapon was recovered from his possession which could c onnect him with the commission of
alleged offence. All these aspects of the matter have cast doubts upon the prosecution
version. Reliance in this regard is placed upon Naveed Asghar3 case.
The upshot of above deliberations is: the statements of abductees are in conflict with
each other to the extent of identification of the appellant; the MLC of appellant is also contradicting the prosecution case; no role has been attributed to the appellant either in abduction or subsequently in the alleged encounter; n othing has been recovered from the
appellant which could be incriminatory or corroboratory in nature, therefore, we are not convinced by learned Additional Prosecutor General to maintain the sentences awarded to the appellant.
In the wake of above deliber ations, the impugned judgments passed by the trial Court
are set aside and while extending benefit of doubt, the appellant Abdul Ghaffar son of Brahim is acquitted of the charge in FIR No.10/2022 under sections 365, 395, 34, P.P.C., FIR No.02/2022 under se ctions 365, 34, P.P.C. and FIR No.01/2022 under sections 324, 353,
186, 34, P.P.C. The appellant is behind the bars, he be released forthwith, if not required in any other case for the purpose of detention.
JK/201/Bal. Appeal allowed.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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