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Petitioner: Dr. AKMAL WAHEED and anothers VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Muhammad Afzal Soomro Title: Dr. AKMAL WAHEED and anothers vs THE STATE Case No.: Special A.T. Appeal No.15 of 2005 Date of Judgment:2006-03-10 Reported As: 2006 YLR 1317 Result: Appeal accepted
JUDGMENT
JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 14-3- 2005 passed by the Special Judge, Anti-Terrorism Court No.II, Karachi in Special Case No.59 of 2004 by which the learned Judge convicted the appellants- for offences punishable under sections 201, 212, 216 and 34, P.P.C. Read with section 21-J of Anti Terrorism Act, 1979 (in short Act, 1997) and sentenced each of them to various terms of imprisonment and fine. Maximum sentence was seven (7) years. The learned Judge directed the sentences to run concurrently with benefit of section 382-B, Cr.P.C. 2. Brief facts of the prosecution case are that the P.W.14 SIP Sain Muhammad received a handwritten report of P.W.7 Inspector Muhammad Tariq of Police Station Boat Basin alleging therein that during investigation of F.I.R. No.165 of 2004 Police Station Boat Basin, Karachi, he interrogated the arrested accused persons namely Shahzad Bajwa and Atta-ur-Rehman of the said case. They informed him that they had association with Jundullah, a terrorist group, involved in various terrorist acts and the appellants Dr. Akmal Waheed and Dr. Arshad Waheed were the founders and supporters of the said group; that the appellants provided various facilities and financial help to them and arranged terrorist training to the members of the group; that they were sent to Wana before Abid Khan, brother of Naik Muhammad through Kashif PA to Dr. Akmal Waheed. The complainant was further informed that the terrorist got training of operating KK, LMG and other modern weapons, bomb and explosive making from one Abu Hamza Uzbek; that the appellants protect those persons, AlQaida and Jundullah persons that in case of any terrorist sustained injury in terrorist act the appellants provided medical treatment to them. The complainant further came to know that on 19-3-2004, the same group attacked a Ranger's mobile at Baloch Colony Bridge, as
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such, two persons died and other persons sustained injuries, therefore, F.I.R. No.179 of 2004 was registered against the culprits. The terrorist Shahzad Ahmed Bajwa was injured and for his treatment terrorist Ataur Rehman made telephone call from his Cell Phone No.333- 2202544 to Dr. Akmal Waheed on his (Dr. Akmal Waheed) Phone No.0300-8207522 who was present in Shan Hospital. N.I.P.A., Chowrangi in connection with preparation of conference at PIMA. Dr. Akmal Waheed called the injured Shahzad Bajwa at Shan Hospital and unlawfully got him treated through Dr. Saqib, Dr. Rehana, Dresser and Ex-Ray Operator. 3. The complainant also came to know that on 10-6-2004 the same group attacked a convoy of Corp Commander at Clifton Bridge, Karachi, in which few persons died and some persons received injuries. In this incident the absconder terrorist Muhammad Qasim also got injuries. He was treated by Dr. Arshad Waheed in the house of Attaur Rehman at Model Colony, Karachi. It was alleged in the complaint that both the doctors (appellants) did not inform the police with regard to terrorist acts and injuries to the terrorists, as such, they committed offences punishable under sections 11-H, 11-L, 11-B, 11-N, 21-C and 21-J read with sections 201, 212 and 216, P.P.C. It is pointed out that the contents of F.I.R. Are based on hearsay evidence, which is inadmissible in evidence, as Shahzad Bajwa and Atta-ur-Rahman were not examined in the Court. Further the same are also inadmissible under section 162, Cr.P.C. And Article 38 of Qanun-e-Shahadat Order, 1984. 4. The police after usual investigation challaned the appellants in the Court. In order to prove the case the prosecution examined 14 witnesses. The appellants, in their statements recorded under section 342, Cr.P.C., denied all the allegations of the prosecution. The appellant Dr. Akmal Waheed filed written statement which is as under:-- "WRITTEN STATEMENT OF DR. AKMAL WAHEED ' I am submitting the following facts for the kind attention of this Honourable Court to reveal the actual story hidden behind this case. 1. That I have been working as RMO (Resident Medical Officer) at NICVD (National Institute of Cardiovascular Diseases) Karachi since 1987. 2. That I have also been the member of a non-political, professional organization PIMA (Pakistan Islamic Medical Association) and an active participant of its medical relief services in any disaster within Pakistan and other Muslim countries. 3. That being Incharge of Medical Relief Operations (South Zone), I was deputed by PIMA for medical relief work in the refugee camps of Afghanistan, temporarily established in Spin Boldak (Afghanistan), just adjacent to the Pak-Afghan border at Chaman (Balochinstan) in the year 2000, just after the American attack on Afghanistan. These voluntary medical relief services remained continued under my supervision through "PIMA Medical Relief Camp: established at Chaman (Balochistan) until 2002. Their booklets in support of my averments are attached herewith and marked as exhibits 1, 2, 3. The purpose of this Association is to provide medical relief team to any Muslim country or within. Pakistan affected by any medical disaster. In the year 2001 after attack on Afghanistan I went to Afghanistan as a member, of PIMA for medical relief and allied social work. I continued rendering voluntary services until 2002. Three booklets in support of my averments is attached and marked as Exhibits 1, 2 and 3. 4. That during this period there, the American soldiers along with the Afghan Government authorities visited twice over "PIMA-Mercy Medical Center", established with the collaboration of "PIMA Relief" and "Mercy Malaysia" (A Malaysian NGO), in the area of the refugee camps at Spin- Boldak, Afghanistan, where they interviewed me in detail. 5. That in January, 2003, an unknown agency along with two foreigners raided our house in Malir and searched the house for hours together and interrogated the household members about our volunteer work, Afghanistan and our relationship with Al-Qaida and nothing incriminating was
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recovered from our house, they left threatening that in the event we disclose this, we shall have to face dire consequences. 6. That the following day of this raid, I held a press conference at Karachi Press Club from the joint platform of PIMA (Pakistan Islamic Medical Association) and PMA (Pakistan Medical Association), protesting to this illegal and immoral activity of the agencies. All renowned newspapers of the city published my that press conference and projected it prominently on 10th January, 2003, two of which are filed herewith and marked as exhibits 4 and 5. The response of the Government/Law enforcing authorities to this press conference was extremely hopeless and nobody contacted me at all to ask about this unpleasant event. 7. That in February, 2004 I received a phone call from a person who introduced himself as Douglas Matthews, the US Consul at Karachi office of Pakistan. He asked me to meet Mr. Alix in the office of the American Consulate Karachi. As it was a dubious phone call so keeping in my mind the above mentioned raid at my house, I did not respond to this call. Furthermore, I wrote and submitted a letter to the Chairman governing body of my institute. NICVD and sent its copies to the President of Pakistan, Prime Minister of Pakistan, Chief Justice of Pakistan, Chief Justice of Sindh High Court, Governor Sindh, Corps Commander, Karachi and I.-G. Sindh. Unfortunately, I again experienced a cold shoulder as no response by any of the above mentioned authorities including the Chairman Governing Body of NICVD, Karachi. This can be confirmed by the Executive Director NICVD (National Institute of Cardiovascular Diseases), Karachi. 8. On 22nd March, 2004, when I was busy in the all Pakistan biennial Convention 2004 of PIMA (Pakistan Islamic Medical Association) at Pearl Continental Hotel, Karachi, a foreigner met me and introduced himself as Douglas Mtthews, the American Consul who phoned me earlier in February, 2004 which I already mentioned above. He talked to me about 1 1/2 hours in respect of the medical relief work of PIMA in Afghanistan and subsequently he offered me to visit United States under "United States Government's International Visitors program" for a period of three weeks. I replied that for this purpose he should have to write official to the Executive Director of NICVD (National Institute of Cardiovascular Diseases) Karachi because I am a Federal Government employee and this is their discretion to allow me for this or not. Very next day i.e. On 23rd March, 2004 he sent an email to Dr. Azhar Masood Farooqi, the Executive Director of NICVD Karachi regarding this offer. Copy of this e-mail is attached here as exhibit 6, while further confirmation can be made by asking the Executive Director, NICVD, Karachi. 9. That on 13th June, 2004 news was flashed in the BBC Urdu transmission that Dr. Akmal Waheed has been arrested. For the evidence a copy of tracing from the web site "B.B.C.Urdu.Com" on 13th June, 2004 is attached herewith as exhibit 7. This totally false news surprised and worried me too much. Since there was no response to my earlier application to the President and others, I planned to hold a press conference in this regard. On 17th June, 2004 when I was going to arrange this press conferenee along with my younger brother Dr. Arshad Waheed in my friend's car, Suzuki Cultus, Registration No.AFH-874, heading towards "Karachi Press Club" three cars, near Karachi Sheraton Hotel suddenly blocked our car. Several armed persons, without any uniforms came out of these cars and forcibly took both of us in their car. They immediately covered our faces with black masks and hardly after 5-10 minutes drive they reached to an interrogation center where they locked us in separate 3' x 6' cells, having no fans or light. There they told us that news of our kidnapping for ransom has been published and our Car No.AFH-874 was parked on a road side, about which the area police has been informed. We were detained in that interrogation center from 17th June, 2004 to 1st July, 2004. ' During this period I was given an extreme mental and physical torture besides hurling of obscene abuses and threats blaming that I belonged to Al-Qaida and Jundullah groups and that attack on Corps Commander was done with my conspiracy and so was attack on Rangers mobile and that I
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am responsible for treatment of the injured in those attacks. This way I was forced to admit and confess for the crime that I had never committed. 10. That during this period my father registered the F.I.R. No.132 of 2004 dated 18-6-2004 at Jackson Police Station, copy of which is attached herewith as exhibit 8, while my friend recovered his Car No.AFH-874 from the custody of Jackson Police Station on My father also held a press conference protesting this illegal act of the agencies which was prominently published in all the renowned newspapers of the city, one of which is attached herewith as exhibit 9. Again very unfortunately as per tradition, no positive response was shown from any Government or law-enforcing authorities. 11. That on 1st July, 2004, in the night time, we were transferred from that interrogation center and handed over to the special Investigation center, Saddar, Karachi in separate vehicles and on 3rd July, 2004, we were produced before Anti-terrorism Court where initially 12 days police remand and subsequently 6 days police remand was taken during which we were imprisoned in AVCC. Here also we were given inhuman mental and physical torture and threats of severe consequences and we were forced to write down and to record on video, the confessional statements as per their direction and also obtained our signatures on few blank papers. 12. That no evidence in regard to our complicity was found in F.I.R. 165 of 2004 of Boat Basin Police Station and 179 of 2004 of Ferozabad Police Station, as a result of which on 14th July, 2004, a report under section 169, Cr.P.C. Was filed and we were exonerated from both the cases. However, on account of American pressure on agencies, a new F.I.R. 305 of 2004 was registered at Gulshan-e- Iqbal Police Station. 13. That I respectfully submit that the only offence that I have committed is to help the poor, helpless, injured Afghan refugees beneath the border of Pakistan as just a voluntary medical aid where I had gone with the grant of visa by the Government of Pakistan on my passport. But since the Government policies took a U-turn, on account of American pressure, every person who puts his foot in Afghanistan is considered a member of Al-Qaida, whether his action of aiding human suffering, voluntary help in providing free medical help or not. 14. That I vehemently deny the false allegation of helping or assisting or training knowingly any person involved in any crime much less heinous crimes like attacking on Corps Commander Convoy or Rangers. ' I pray for justice." 5. The written statement of Dr. Arshad Waheed is on the same line, therefore, it is not reproduced. 6. The appellants examined 12 witnesses to prove their case. The learned trial Judge, after considering the evidence available on the record and hearing the parties' counsel, convicted the appellants as mentioned above under the impugned judgment. 7. We have heard the Advocate for the appellants, Special Prosecutor for the State and perused the record of this case very carefully. 8. Learned Advocate for the appellants has stated that the prosecution has failed to prove the ingredients of the offences punishable under sections 201, 212 and 216, P.P.C. And section 21-J of the Act, 1997 under which the appellants have been convicted; that the allegations against the appellant No.1 Dr. Akmal Waheed is that he had provided medical treatment and harboured one Shahzad Ahmad Bajwa involved in Crime No.179 of 2004; that in order to prove the said facts the prosecution relied upon four witnesses of Bismillah Hospital out of them the statement of one witness P.W.3 Dr. Saqib is relevant but that witness was declared hostile, therefore, his evidence is not sufficient to prove the said allegation without any corroborative piece of evidence. He has relied upon Prasanna Deb v. Tanjina Khatun (AIR 1946 Privy Council 47). Habibur Rehman Khan v. Mustafa Abbas (PLD 1989 SC 20), State v. Abdul Ghaffar (1996 SCM R 678) and Zarid Khan v. Gulsher (1972 SCM R 597). He has contended that the allegations against the appellants No.2 Dr. Arshad Waheed is that he provided medical treatment to one Muhammad Qasim involved in Crime No.165
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of 2004; that the prosecution has not led any evidence to show that the appellant No.2 had provided any treatment to Muhammad Qasim but the evidence led by the prosecution is of simply showing the place where it was alleged that the appellant admitted before the police that he provided medical treatment to the said accused person; that the confession of the appellant before the police officer is inadmissible under Article 38 of Qanun-eShahadat Order, 1984 and that simply pointing of place does not come within the discovery as provided under Articles 40 of Qanun-e-Shahadat Order, 1984; that the said piece of evidence is not sufficient to involve the appellant for the said allegation. He has relied upon Hidayatullah v. State (1994 PCr.LJ 20) and Muhammad Aslam v. The State (2001 PCr.LJ 86). He has further stated that the prosecution has relied upon the confessions of Shahzad Ahmed Bajwa and Ataur Rehman involved in Crimes Nos.179 of 2004 and 165 of 2004; that the said persons have not been examined in the Court; that the said confessions cannot be considered in the evidence as it is hit by Article 43 of the Qanun-e- Shahadat Order, 1984. He has further argued that the identification test of identifying Shahzad Ahmed Bajwa through emr:oyees of Bismillah Hospital simply ,hows that Shahzad Ahmed Bajwa was ..Reated in the hospital but without furthg,f proof that the said Shahazad Ahmed Bajwa was treated by the appellant or under his instructions is not enough; that the witnesses had seen the photographs of Shahzad Ahmed Bajwa before the identification test. As such, the said identification test carries no weight. He has further stated that joint trial of the appellants is illegal as the allegation against both the appellants are different and distinct, therefore, the appellants cannot be tried together. 9. Conversely, the learned Special prosecutor for the State has stated that joint trial is permissible under section 21-A of the Act, 1997; that the pointing of place by the appellant No.2 was admissible under Article 40 of Qanun-e-Shahadat Order, 1984 and has also relied upon Hidayatullah's case (1994 PCr.LJ 20). He has further stated that ingredients of sections for which the appellants have been convicted have been proved; that the appellants made statements before the police during investigation of Crime No.179 of 2004 in which they admitted the entire case of prosecution and the said statements have been produced in evidence as Exhs.58 and 59; that the said statements can be relied upon to convict the appellants; that Shahzad Ahmed Bajwa and Ataur Rahman, accused of Crimes Nos. 179 of 2004 and 165 of 2004, have implicated the appellants in their judicial confessions which can be taken into consideration against the appellants to convict them. He has further stated that the car which was hired by Shahzad Ahmed Bajwa was recovered from the possession of appellants, therefore, the case has been prove against them. He has supported the impugned judgment. 10. We have given due consideration to the arguments, gone through the material available on the record and found that the learned trial Judge convicted the appellants for offences punishable under sections 201, 212, 216, P.P.C. And 21-J of the Act, 1997. Section 201, P.P.C. Reads as under:-- "201. Causing disappearance of evidence of offence or giving false information to screen offender. Whoever, knowing or having reason to believe that an offence has been committed, causes and evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; ' if a capital offence; shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; ' if punishable with imprisonment for life; and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
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' if punishable with less than ten years' imprisonment, and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both." 11. In order to prove the said charge the prosecution is required to prove following facts:-- ' the accused knew or had reasons to believe that the offence was committed; (ii) the accused caused evidence of committing of such offence to disappear; (iii) the accused gave false information respecting the said offence which he knew as believed to be false; (iv) the accused did so intending to screen the offenders; (v) that the offence was punishable with death or imprisonment for life or for a shorter term. 12. The most important fact which the prosecution is required to prove is that the accused had caused any evidence of commission of offence to disappear or gave false information in respect of offence to screen the offender. There is no allegation B of the prosecution that the appellants gave false information to screen the offender but the prosecution case rests upon, the allegation that they caused evidence of commission of offence of Crimes Nos.179 of 2004 and 165 of 2004 to disappear. 13. The learned Special Prosecutor was asked to point out any evidence led by the prosecution to show that any evidence collected in the above mentioned crimes was caused to disappear by the appellants but he could not point out any such evidence. He simply stated that as the appellants had treated the accused involved in the above mentioned crimes, therefore, they are involved in the case. Before giving such finding the prosecution is required to prove that the appellants had knowledge that offence was committed and evidence of that offence was caused to disappear by them. As regards the first point, that will be dealt with separately in subsequent part of the judgment. As regards second point, we have also gone through the evidence but could not find any evidence led by the prosecution to show that any evidence collected by the prosecution in the abovementioned crimes was caused to disappear by the appellants. The learned Special Prosecutor asserted that as accused of the crimes of 179 of 2004 and 165 of 2004 were treated by the appellant, therefore, it will cover the case. Suffice it to say that the accused of the said crimes themselves would not come within the definition of evidence, as evidence has been defined in Qanun-e-Shahadat Order, 1984 under Article 2(c), that reads as under:-- 2(c) "evidence" includes--- (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called or evidence; and (ii) all documents produced for the inspection of the Court; such documents are called documentary evidence." 14. From the above definition it is clear that the accused persons by themselves would not come within the definition of evidence but the evidence, as provided under Article 2(c) means the statements of witnesses or documents which come within the above scope would be the evidence. Under the law the evidence is to be collected to use against the accused for his conviction, thus the main ingredients of section 201, P.P.C. Are not attracted in this case. 15. As regards the provisions of section 216, P.P.C. The relevant portion of the said section reads as under:-- "Harbouring offender who has escaped from custody or whose apprehension has been ordered. Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody." 16. The main ingredients of the section are that (i) the person was in lawful custody and escaped from such custody; (ii) that the accused knew of such escape of the custody; (iii) that the accused
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with such knowledge harboured or concealed such offender with the intention of preventing him from being apprehended; and (iv) that the offence was punishable with death or imprisonment for life or for a shorter term. ' Act, 1997, the said sections read as under:-- "212. Harbouring offender.--- ' Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment; ' if a capital offence; shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; ' if punishable with imprisonment for life, or with imprisonment, and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; 17. When inquired from the Special Prosecutor as to whether the prosecution led any evidence to show that Shahzad Bajwa or Muhammad Qasim escaped from the custody to which he replied in negative nor he could point out any evidence showing that the said persons were ever arrested and escaped from the custody or that the appellants knew of such escape from the custody. He frankly conceded that the section 216, P.P.C. Is not applicable in the case. 18. As regards the offences punishable under sections 212, P.P.C. And 21-.1 of the and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment Tribunal of the description provided for the offence for a term which may extend to one-fourth part of the…
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