JAMSHAID alias BABLU vs State art — 2022 YLR 1822 LAHORE-HIGH-COURT-LAHORE

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JAMSHAID alias BABLU VS State art. 22---Test identification parade---Purpose and object---Purpose of identification parade is to find out whether accused was the actual perpetrator of the crime in question---If the name of the offender was not known to those who claimed to be eyewitnesses of the crime, but they stated that although they did not know the offender earlier, they could recall his facial features, physique and age in sufficient detail and would also be able to identify him if and when that accused is brought before them again---Purpose of prior test identification parade is to test and strengthen the veracity of eyewitnesses---Such test identification parade is beneficial, for both, the accused and the Investigating agency---Test identification parade enabled the Investigating Officer to determine whether the witnesses had actually witnessed the perpetrator of the crime and test their capacity to identify him and thereby to exonerate the accused or implicate him on the strength of incriminatory evidence in shape of test identification parade. Ss. 365-a, 210 & 34---anti-Terrorism act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), art. 129(g)---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---appreciation of evidence---Withholding of material evidence---Scope---accused were charged for kidnapping the grandson of the complainant for ransom---Record showed that one of the eye-witnesses of payment of ransom and release of minor was given up by the prosecution without any plausible explanation---Such fact led to an adverse inference under art. 129(g) of Qanun-e-Shahadat, 1984, that had he been produced in the dock he would have not supported the prosecution case---Only substantive evidence against the accused persons available on the record was testimony of a witness who paid ransom to two unknown accused persons and third unknown accused released the minor allegedly kidnapped---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Benefit of doubt---Principle---Not necessary, that there should be several circumstances for extending benefit of doubt, rather one reasonable doubt was sufficient to acquit an accused, not as a matter of grace but as of right. art. 22---Test identification parade---Scope---Substantive evidence is the evidence of identification by witness in court and the test identification parade provided corroboration to the identification of the accused in court---Test identification parade is only considered as corroborative piece of evidence. Ss. 365-a, 210 & 34---anti-Terrorism act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---appreciation of evidence---Call Data Record---Scope---accused were charged for kidnapping the grandson of the complainant for ransom---Record revealed that the investigation of the case was conducted by three Investigating Officers, but none of them got verified the ownership of SIM (Subscriber Identity Module) allegedly used by the accused persons for demanding ransom from the complainant to connect them with the commission of alleged offence---Call Detail Record (CDR) was tendered in evidence by the prosecution but said record did not provide any details qua the ownership of mobile number allegedly used by the accused persons---Call Detail Record of another mobile number was tendered in evidence but nothing was available on the record that in what context said mobile number was used---Such Call Detail Record should conclusively show that mobile phone used in the occurrence was owned by the accused and should also show the location from where calls were made---Call Detail Record available on the record neither showed that mobile number used for demand of ransom amount was owned by any of the accused persons nor competent witness who generated such record and provided to investigating agency was produced before the Trial Court---Said circumstances compelled to hold that Call Detail Record, as tendered by the prosecution, did not advance its case and evidentiary value of such record was next to nothing being inconclusive--- Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Ss. 365-a, 210 & 34---anti-Terrorism act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---appreciation of evidence---Payment of ransom amount and release of minor---Scope---accused were charged for kidnapping the grandson of the complainant for ransom---Prosecution version was that after negotiation ransom amount to the tune of Rs.9,00,000/- for the release of the minor kidnapee was settled between the complainant and accused persons---Witnesses stated that ransom amount was allegedly paid to two of the accused persons by them and thereafter minor was released within their sight after ten minutes by accused---One of the said witnesses did not point his finger at the accused persons in Court rather, astonishingly, ascribed roles according to their sitting arrangements during Test Identification Parade---admitted fact that the complainant was not the eyewitness of the case from kidnapping to payment of ransom and release of his minor grandson---Prosecution did not examine the minor kidnapee as a witness---Entire prosecution case revolved around the testimony of witness, paying the ransom amount---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Ss. 365-a, 210 & 34---anti-Terrorism act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---appreciation of evidence---Recovery of ransom amount and other articles---Reliance---Scope---accused were charged for kidnapping the grandson of the complainant for ransom---Record showed ransom amount comprising of currency notes worth Rs.9,00,000/- bearing signatures of the complainant on its back on their pointing out after about one month and twenty days of alleged occurrence was recovered---allegedly in pursuance of disclosures made by the accused persons, Rs.2,00,000/- were recovered on the pointing out of accused, Rs.2,00,000/- on the pointing out of co-accused and Rs.5,00,000/- on the pointing out of other co-accused---Complainant, who was a layman having no acquaintance with law, without the legal advice by the Investigating Officer put his signatures on the currency notes on his own apparently for the reason that when the same would be recovered at subsequent stage, it would lend strong corroboration to his case---In the same way, amazingly the accused persons kept the tainted money in their houses and did not spend even a penny, which was not appealable to a man of prudent mind---Recovery of ransom amount on the pointing out of the accused persons, in circumstances, seemed to be planted just to strengthen the prosecution case---So far as recovery of motorcycle and mobile phone along with two batteries on the pointing out of an accused was concerned, the Investigating Officer during cross-examination, in categorical terms, deposed that there was no record on file regarding ownership of said articles in the name of said accused---Even otherwise it was not the prosecution case that the recovered motorcycle was used by any of the accused persons during the commission of alleged occurrence---Recovery was considered as corroborative piece of evidence and where substantive evidence was not worthy of reliance, the same could not be taken into consideration to sustain conviction---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Ss. 365-a, 210 & 34---anti-Terrorism act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), art. 22---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---appreciation of evidence---Joint test identification parade---Scope---accused were charged for kidnapping the grandson of the complainant for ransom---Record showed that the test identification parade in the case was conducted jointly, wherein the accused persons were identified in one go while sitting jointly in three rows---Joint test identification parade had been rendered unsafe and untrustworthy by the Supreme Court, hence, same was not worthy of reliance---Such factums adversely hit the sanctity of test identification parade, therefore, no credence could be attached to it---Joint test identification parade, where no roles had been ascribed to the accused persons in which capacity they participated in the occurrence and where no description of suspected accused and other dummies had been provided in proceedings of test identification parade, was not worthy of reliance---High Court observed that no other option than to hold that reliance could not be placed to sustain the conviction of the accused persons on test identification parade conducted in sheer violation of settled law, therefore, same was discarded--- Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt--- appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Ss. 365-a, 210 & 34---anti-Terrorism act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---appreciation of evidence---Benefit of doubt---accused were charged for kidnapping the grandson of the complainant for ransom---Record showed that the alleged occurrence took place at Sham Wela and none had seen the accused persons while kidnapping the minor---Matter was reported to the police by complainant on the next day at 11:00 a.m. with the assertion that the unknown accused persons had kidnapped his grandson for some unknown reasons---Complainant, in the crime report, did not mention the factum of receiving telephonic call of unknown accused on his mobile phone demanding ransom for release of his grandson---Notwithstanding the fact that soon after 2/3 hours of alleged occurrence, complainant supposedly received telephonic call made by the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Ss. 365-a, 210 & 34---anti-Terrorism act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---appreciation of evidence---Non-production of minor/kidnapee---Scope---accused were charged for kidnapping the grandson of the complainant for ransom---Minor, who was allegedly kidnapped, did not appear as a witness before the Trial Court---Non-production of kidnapped child before the Trial Court, casted a serious doubt on the prosecution version---Child, irrespective of his age, was competent to appear as a witness before the Trial Court, subject to his fulfilling the conditions precedent provided under articles 3 and 17 of the Qanun-e-Shahadat, 1984---Prosecution should have produced the minor allegedly kidnapped in the case and it was the Trial Court to determine his competence to be a witness after applying the rationality test---Non-appearance of the kidnapped child before the Trial Court proved as the last nail in the coffin of prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

JAMSHAID alias BABLU vs State art — 2022 YLR 1822 LAHORE-HIGH-COURT-LAHORE

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