P L D 2006 Supreme Court 519

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Raja Fayyaz Ahmed, JJ

MUSHTAQ HUSSAIN alias MUSHTAQI and another—Petitioners

Versus

THE STATE—Respondent

Jail Petitions Nos. 9 and 10 of 2005, decided on 4th January, 2006.

(On appeal from the judgment of the Lahore High Court, Lahore dated 26-11-2004 passed in Criminal Appeals Nos.6-19 and 239 of 2004).

(a) Penal Code (XLV of 1860)—

—-Ss. 392 & 353—Anti-Terrorism Act (XXVII of 1997), S.7(i)—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Prosecution had substantiated the accusation by producing cogent and concrete evidence; conscious analysis of the depositions of the eye-witnesses would reveal that accused persons had played pivotal role in the commission of alleged offence; no glaring contradiction could be pointed out in their statements and in so far as the minor contradictions were concerned the same did creep in with the passage of time and could be ignored safely; in spite of exhaustive cross-examination nothing advantageous could be elicited rendering any help to the case of accused persons; statements of prosecution witnesses had rightly been considered and relied upon by the Trial Court who made it abundantly clear in their statements that alleged offences were committed by the accused persons; amount in question was looted by the accused who were duly armed with fire-arms and one of them was apprehended at the spot by the police officials who were by chance available at the place of occurrence and looted amount was also recovered which was a strong piece of corroboration and could not be discarded; all the prosecution witnesses were natural and impartial having no enmity or rancour against the accused persons—In view of such overwhelming evidence the question of false implication of accused persons did not arise who were apprehended at the spot duly armed and besides the looted amount was also recovered; identification parade was immaterial if the identification of the accused persons was proved by other convincing evidence; statements of prosecution witnesses were indicative of the fact that there was absolutely no doubt in their minds qua identification of accused who was apprehended at the spot; so far as injuries sustained by accused, who was apprehended at the spot were concerned a plausible justification had been given by the prosecution that the same were caused due to accident as the police vehicle hit the motorcycle which was being driven by the accused along with a co-accused and resultantly the accused had fallen on ground and sustained few injuries—In view of such a plausible justification no adverse inference could be drawn—Such aspect of the matter further lent corroboration to the prosecution case and if the defence version was kept in juxtaposition which being false, fabricated and an afterthought, had rightly been rejected by the Courts below and evidence which had come on record had rightly been appreciated by the Trial Court determination whereof had been upheld by the High Court which being well-reasoned and unexceptionable did not call for any interference by the Supreme Court for which no lawful justification or concrete reasoning was available—Petitions for leave to appeal being devoid of merit were dismissed by supreme Court and leave refused.

The State v. Farman Hussain Shah PLD 1995 SC 1 and Muhammad Afzal v. The State 1982 SCMR 129 ref.

(b) Penal Code (XLV of 1860)—

—-Ss. 392 & 353—Anti-Terrorism Act (XXVII of 1997), S.7(i)—Reappraisal of evidence—Identification parade—Necessity—Identification parade was immaterial if the identification of accused persons was proved by other convincing evidence. s

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitoners (in both cases),

Sh. Mahmood Ahmed, advocate Supreme Court for the State.

Date of hearing: 4th January, 2006.

ORDER

JAVED IQBAL, J.—These petitions for leave to appeal are directed against the judgment dated 26-11-2004 whereby the criminal appeal preferred on behalf, of petitioners has been dismissed and the judgment dated 9-2-2004 passed by learned Special Court III, Lahore constituted under the Anti-Terrorism Act, 1997 has been kept intact, whereby the petitioners were convicted and sentenced as follows:–

(i) Under section 7(i) of Anti-Terrorism Act, 1997.– to four years’ R.I. each.

(2) Under section 392, P.P.C.—to seven years’ R.I. each with a fine of Rs.50,000 each in default whereof to further undergo R.I. for six months each.

(3) Under section 353, P.P.C.-to a fine of Rs.1,000 each in default whereof to undergo R.I. for one week each.

(4) Benefit of section 382-B,Cr.P.C.-was extended to them and the sentence were directed to run concurrently.

2. “The prosecution story, as unfolded through F.I.R. registered on the statement of the complainant, briefly stated is that on 22-1-2003, the complainant Sher Ali Bhatti along with his employee Muhammad Riaz came to Standard Charted Bank, Garden Town, Lahore and got an amount of Rs.6,90,000. He put Rs.6,00,000 in bag and the remaining Rs.90,000 were given by him to his employee Muhammad Riaz. They proceeded for Citibank, Alfalah Building Branch, The Mall Road, Lahore, in their car No.LOY-989. When they reached near Alhamra Art Council at 11-30 a.m., both the accused stopped their motorcycle No.LRB-753 in front of their car forcing them to stop their car on pistol point, both the accused snatched the said amount from the complainant and his employee Muhammad Riaz and ran away on their motorcycle. Meanwhile, some police officials in an official vehicle reached there. The complainant informed them about the occurrence. The police chased the accused persons whereupon the accused persons started firing on the policy party. On reaching Chowk Faisal, the police gave a push of official vehicle to the motorcycle of the accused-persons fell down along with their motorcycle. However, Muhammad Saleem accused succeeded to run away making firing along with Rs.90,000 from the spot while his companion Mushtaq Hussain alias Mushtaqi was caught hold of by the police and Rs.6,00,000 were recovered from him along with a .30 bore pistol and live bullets. The motorcycle of the accused person was also taken into possession by the police. Musthtaq Hussain accused was injured due to fall on the ground from his motorcycle, as the motorcycle was given a push by the vehicle of the police. Later on, Muhammad Saleem accused was arrested and Rs.40,000 were recovered from him besides a .30 bore pistol and live bullets. Separate cases for unlicensed arms were got registered against both the accused-persons under the Arms Ordinance.” The petitioner was sent up for trial along with co-accused namely Muhammad Saleem and on conclusion whereof the petitioners were convicted and sentenced as per details mentioned in the preceding paragraph.

3. Mr.Zulfiqar Khalid Maluka, learned Advocate Supreme Court entered appearance on behalf of the petitioners and mainly contended that a false and concocted case was got registered by the police to show its efficiency but the accusation could not be substantiated by producing cogent and concrete evidence. It is next contended that statements of police officials should have been discarded being interested witnesses who have deposed falsely in order to get the conviction of the petitioners. It is argued that the prosecution has concealed the factum of injuries sustained by the petitioner which creates doubt about the prosecution story benefit whereof should have been given to petitioner. It is next contended that no identification parade could be held and thus the identification of the petitioners being doubtful no conviction could have been awarded. It is also contended that prosecution has failed miserably to prove that by whom the bag containing the alleged recovered amount was snatched which is demonstrative of the fact that prosecution has concocted a false story. It is also pointed out that the material contradictions in the statements of prosecution witnesses have been ignored having a substantial bearing on merits of the case which resulted in serious miscarriage of justice.

4. Sh. Mahmood Ahmed, learned Advocate Supreme Court appeared on behalf of State and supported the judgment impugned for the reasons enumerated therein with the further submission that overwhelming incriminating evidence has come on record showing that petitioners were responsible for the commission of alleged euffences. It is also submitted that prosecution. has established the guilt beyond any shadow of doubt by producing worthy of credence evidence and the alleged amount was also recovered from the petitioner which lends corroboration to the eye-account furnished by the prosecution witnesses.

5. We have carefully examined the contentions as agitated on behalf of the parties, scanned the entire evidence which has come on record by keeping the defence version in juxtaposition and perused the judgment of learned trial Court as well as the judgment impugned. A careful scrutiny and in-depth evaluation of the entire evidence would reveal that prosecution “has substantiated the accusation by producing cogent and concrete evidence. In this regard the eye account has been furnished by Muhammad Arshad (P. W .3), Sher Ali Bhatti (P. W .10) Naseem-ul-Hye/Inspector Police (P.W.12), can be referred. A conscious analysis of the deposition of the above mentioned P.Ws. would reveal that petitioners have played a pivotal role in the commission of alleged offences. No glaring contradiction could be pointed out in their statements and in so far as the minor contradictions are concerned the same do creep in with the passage of time and can be ignored safely. It is worth mentioning that in spite of exhaustive cross-examination nothing advantageous could be elicited rendering any help to the case of petitioners. The statements of Muhammad Arshad (P.W.3) and Sher Ali Bhatti (F. W.10) have rightly been considered and relied upon by the learned trial Court who made it abundant clear their statements that alleged offences were committed by the petitioners. The amount in question was looted by the petitioners who were duly armed with fire arms and Mushtaq Hussain (petitioner) was apprehended at the spot by the police officials who were fortunately available at the place of occurrence and looted amount was also recovered which is a strong piece of corroboration and cannot be discarded. We are of the firm opinion that all the prosecution witnesses were natural and impartial having no enmity or rancour against the petitioners. In view of the overwhelming evidence as mentioned hereinabove the question of false implication of the petitioners does not arise who were apprehended at the spot duly armed with .30 bore pistol and besides that the looted amount was also recovered as mentioned hereinabove. We are not persuaded to agree with the prime contention of learned Advocate Supreme Court that no identification parade could be held and therefore the identification of petitioners being doubtful, they should have been given benefit of doubt for the simple reasons that identification parade was absolutely unnecessary because it become essential if a witness gets a momentary glips of the accused and he claims that he would be able to identify the accused in such an eventuality identification test becomes inevitable which is to be conducted in accordance with law as laid down by this Court in case State v. Farman Hussain Shah PLD 1995 SC 1. Even otherwise the identification parade is immaterial if the identification of the accused is proved by other convincing evidence. In this regard reference can be made to the case of Muhammad Afzal v. The State 1982 SCMR 129. The statements of prosecution witnesses specially Sher Ali Bhatti P.W. 10 and Muhammad Arshad P.W.3 are indicative of the fact that there was absolutely no doubt in tier minds qua identification of petitioner who was apprehended at the spot. In such view of the matter identification parade was not necessary at all. In so far as the injuries sustained by the petitioner are concerned a plausible justification has been given by the prosecution that the same were caused due to accident as the police vehicle hit the motorcycle which was being driven by the petitioner along with co-accused and resultantly the petitioner had fallen on ground and sustained a few injuries. In view of such a plausible justification no adverse inference as pressed time and again by the learned Advocate Supreme Court on behalf of petitioners can be drawn. In our considered opinion this aspect of the matter further lends corroboration to the prosecution case.

6. We have also kept the defence version in juxtaposition which being false, fabricated and an afterthought has rightly been rejected by the Courts below. No other point was argued. The evidence which has come on record has rightly been appreciated by the learned trial Court determination whereof has been upheld by the learned High Court vide judgment impugned which being well reasoned and unexceptionable does not call for any interference for which no lawful justification or concrete reasoning is available. The petitions being devoid of merit are dismissed and leave refused.

M.B.A./M-83/S Petition dismissed.

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