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Petitioner: Dr..KHALID MOIN and others VS Respondent: THE STATE and otherss
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Muhammad Afzal Soomro Title: Dr..KHALID MOIN and others vs THE STATE and otherss Case No.:Special A.T. Appeals Nos.69, 70, 71, 75 and Special A.T. Acquittal Appeal
JUDGMENT
Reported As: 2006 P Cr. L J 639 Result: Appeals accepted Judgment JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Special Anti-Terrorism Appeals Nos.69 of 2002 to 71 of 2002, 75 of 2002 and Special Acquittal Appeal No,73 of 2002 as they arise out of a common judgment. 2. Brief facts giving rise to the present appeals are that on 17-1-2000 the complainant Abdul Razaq lodged F.I.R. On the information supplied to him by Muhammad Ilyas (P.W.3) who informed the complainant that on the said date he along with abductee Muhammad Rafiq (P.W.5) were going in a car bearing Registration No,V-0901 to their office situated at New Challi Campbell Street. At about 11-00 a.m. They reached near Dada Bhai Chorangi near Peoples House, a car having G.S. Number plate intercepted their car in which four persons were sitting. Out of them, three persons came and took Muhammad Rafiq (P.W.5) with them and made him sit in their car whereas one person sat in his (P.W.3) car. On inquiries, the person who sat with P.W.3 disclosed to him that they were making some inquiry against them. When the car reached at Aisha Manzil, P.W.3 was allowed to go alone whereas P.W.5 was abducted by the said four persons. Later on the culprits ordered P.W.5 to talk to P.W.3 on the mobile phone No,0300-253065 to pay the ransom amount otherwise they, would kill the abductee. 3. The police recorded the said F.I.R. And sealed it. However, the police started investigation after desealing it on 22-2-2000. On the next day viz. 18-1-2000, the abductee P.W.5 returned to his house in a rickshaw. He was tired and sleepy, therefore, he went to sleep. On the next day of the arrival of the P.W.5 he informed the complainant and P.W.4 and other persons that he had been released by the culprits on the promise of paying Rs,15,00,000 to them as a ransom within a period of one
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month. He further informed them that the abductors had threatened him not to disclose the facts to police or CPLC. 4. After return of the abductee, the police contacted him for recording his 161, Cr.P.C. Statement but he refused to give the said statement. The police also did not record the statement of P.W.3 during this period. In the meanwhile on 19-2-2000, the complainant and P.W.3 went out of Pakistan to perform Hajj. On 22-2-2000 the F.I.R. Was desealed. On 26-2-2000 the abductee (P.W.5) showed the place of incident to the police. The police recorded the statement of P.W.5 in respect of showing the place of incident. On 27-2-2000, the appellant were arrested except Saleem Memon. They were put in identification test before a Magistrate through P.W.5 where he identified the appellants to be the culprits. On 14-3-2000 police submitted the challan against the appellants showing Saleem Memon as absconder. The acquitted accused Saleem Memon was also arrested.. On 28-3-2000, the complainant and P.W.3 returned to Pakistan after performing Hajj. On 29-3-2000, the complainant party allowed the police to record their statements. Therefore, on the said date the police recorded the statements of P.W.3 and P.W.5 about the incident of abduction. 5. On 27-6-2002, the learned Judge, Anti-Terrorism Court-II, framed the charge against the appellants. In support of the case the prosecution examined 13 witnesses. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellants in their further statements stated as under:-- (1) Appellant Dr. Khalid Mom "I was working as Deputy Medical Superintendent, Abbasi Shaheed Hospital, and incharge of Medical Aid Committee MQM Mutehida (Altaf Group). This being important I was also provided official police guard. Budget of Rs,22 crore was at my disposal for purchasing medicines and medical equipment, purchase of Ambulance, maintenance of Hospital and purchasing of stores etc. In the month of October, 1999, Saleem TanOli came to me with 2/3 persons along with so- called abductee Rafiq Memon, with problem of Chanda and to resolve the same. I was told that my persons of MQM belonged to PIB Colony demanded Chanda and harass so-called abductee. I investigated their complaint and reverted back and re-held committee meeting and I told Union that the said persons of PIB Colony are defaming MQM and then they are not my persons. So- called Rafiq Memon insisted that those persons are my persons and I demanded Chanda through them and consequently, it burst to hot talk and at that time Rafiq Memon threatened that he will see to it and teach me lesson. On 19-2-2002 there was MQM strike at the request of my Qaid Sayed Altaf Hussain and I was arrested and false cases of Arms Ordinance were registered and kept at Mubina Town Police Station from where my custody was taken by ACLC, even before transfer of further investigation in Crime No,10 of 2000, where so-called abductee Rafiq Memon was called by Inspector Hafeez Junejo Investigating Officer of this case, where so-called abductee Rafiq Memon after seeing me said that he is same person and his personal men of MQM were extorting Chanda and harassing and both Investigating Officer and Rafiq Memon said that it was right time to take revenge by taking advantage of situation. In .Case if I have any interest of need of taking money it was very easy for me to take'benefit of my official position and would have taken funds from the budget of the hospital by mixing with contractors of the hospital, and I have not done so. It is matter of record that contractors of Abbasi Shaheed Hospital became hostile and inimical as I had stopped their false and manufactured bills. I am victim of the circumstances and so-called revenge of the so-called abductee as I have also never indulged in demanding Chanda. I am son of the very famous Dr. Who served in Pakistan Army and then was sent to Iran on deputation where I was educated and for purpose of doing M.B.,B.S., I came to Pakistan. My humbleness and competency is known to everybody who has been treated by me. Earning of my father, house, plots and Defence Saving Certificates were purchased in my name, my sister and my father's name, which after maturing date were re-invested and one plot was also sold by my father as I
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remember in 1990 I sold and invested and re-invested in purchasing Defence Saving Certificate. The purpose of purchasing and repurchasing of Defence Saving Certificates was desire of my father to build a free hospital for the needy people. My father is very old and my two sisters and one brother are mentally retarded and I am the only person maintaining them. My father never charged more than Rs,10 from a patient including consultations and medicine, his humbleness and humanity is known to everybody in the area. I being such a respectable person and officer of Grade-18 cannot imagine and think to commit any unlawful act of alleged abduction. I am peaceful and law abiding citizen and providing all my medical services to general public to the best of my abilities and capabilities I may kindly be provided justice." (2) Appellant Saleem Khan Tanoli "Yes Sir, in October, 1999, the alleged abductee Rafiq Memon and Illyas came to my house with reference of Peoples Party Workers and stated that some MQM people of PIB Unit were demanding Chanda from them. They asked me to get them out of this problem. I contacted Dr. Khalid Moin who was Incharge of Abbasi Shaheed Hospital and was also an office-bearer of MQM. Then I managed the meeting between Rafiq Memon and Illyas, myself and Dr. Khalid Moin in the Abbasi Shaheed Hospital, while co-accused Altaf Hussain was also with me. In that meeting Rafiq Memon and Illyas told Dr. Khalid Moin that we are paying the Chanda to MQM through their Memon Association and this is wrong that people of PIB Unit are directly asking for Chanda from us. Dr. Khalid Moin during this meeting enquired from the PIB Unit of MQM regarding the complaint of Chanda. Then Dr. Khalid Moin told Rafiq Memon and Illyas that no one from PIB Unit had demanded Chanda from them and that they were free to lodge F.I.R. The persons who were demanding the Chanda and that they were not belonging to the MQM. On this Rafiq and Ilyas got annoyed and exchanged hot talks with Dr. Khalid and said that they will see him. At that time co-accused Salimuddin was the official police guard of Dr. Khalid Moin and during the above hot talk, he asked Rafiq Memon to get out of room of Dr. Khalid, as I used to reside in District Central, I look after the affairs of the People's Party Workers of the District Central, and I used to submit the complaints in connection with disputes with MQM people to the Head Office of the MQM or to any other office- bearer of the MQM for the purpose of peaceful running of the Party's affairs. Above F.I.R. Is the false F.I.R. I. Do not know anything about the incident stated in the F.I.R. I believe that Rafiq and Illyas have taken revenge of Chanda incident and implicated me in the false case." (3) Respondent Saleem Memon "Sir, my statement is same as that of co-accused Salim Tanoli and further say that I am active worker of Peoples Party and I am working under Saleem Tanoli in my District Central, Unit Office. I have been falsely implicated in this case in revenge of above said Chanda dispute. I am innocent." (4) Appellant Saleemuddin "Sir, my statement is same as that of co-accused Salim Tanoli. I further state that in November, 1999, I reported back to duty in police line District Central and deposited my SMG in the office as I was called back from the official Guard Duty of Dr. Khalid Moin. P.C. Malik Sher Afzal B.No,4366 was posted in my place as official Police Guard of Dr. Khalid Moin. On 17-1-2000, I was on duty in Police Line District Central. The record of my duty is available in the case file of Crime No,50 of 2000 of Police Station North Nazimabad. The above F.I.R. Is a false F.I.R. As I believe it was not in the knowledge of alleged abductee Rafiq Memon and Illyas that I had been removed as official guard of Khalid Moin in November, 1999." (5) Appellant Muhammad Altaf Hussain "Sir, my statement is same as that of co-accused Salim Tanoli and further say that I am active worker of People's Party and I am working for Saleem Tanoli in my District Central Unit Office. I have been falsely implicated in this case in revenge of above said Chanda dispute. I am innocent.
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6. The accused Saleem Memon examined D.W. Muhammad Yousuf. He produced certain documents. The appellants and accused Saleem Memon did not examine themselves on oath. The appellants also did not examine any witness in their defence. 7. After considering the evidence and hearing the parties counsel, the learned trial Judge acquitted the accused Saleem Memon whereas convicted the appellants for offences punishable under sections 365-A, 34, P.P.C. Read with section 6(2)(e) of Anti-Terrorism Act, 1997 and sentenced each of them to suffer imprisonment for life and forfeited their properties. However, they were given benefit of section 382-B, Cr.P.C. 8. The appellants were dissatisfied with the said judgment, therefore, they have filed the present appeals whereas the State was dissatisfied with the judgment of acquittal of accused Saleem Memon, therefore, they have filed Acquittal Appeal No,73 of 2002. 9. We have heard the Advocates for the appellants, acquitted accused Saleem Memon, complainant, A.A.-G. For the State and perused the record of this case very carefully. 10. The learned Advocates for the appellants and Saleem Memon have contended that the case of the prosecution rests upon the evidence of two witnesses viz. Abductee P.W.5 and eye-witness P.W.4; that their evidence is contradictory to each other, full of exaggerations and improvements, therefore, their evidence cannot be relied upon; that the statements under section 161; Cr.P.C. Of these witnesses were recorded after more than 2-1/2 months without furnishing any explanation, therefore, their evidence is untrustworthy. They have relied upon the cases of Muhammad Khan v. Moula Bakhsh 1998 SCMR 570; Muhammad Sadiq v. State PLD 1960 SC 223; Qabil Shah v. State PLD 1960(?) Kar. 697; Jalal v. State PLJ 1974 Cr.C. (Kar. 244; Saeed Muhammad Shah v. State 1993 SCMR 550; Asfandyar Wali v. State PLD 1978 Pesh. 38; Muhammad Rafiq v. State 1974 PCr.LJ 391 and Aamir v. State 1968 Lah. 49. 11. They have further stated that the identification test is not a substantive piece of evidence and the conviction cannot be based solely on the said evidence as it is a corroborative piece of evidence; that-the identification test is doubtful as only few dummies were changed at the time of identification of each accused; that the prosecution has relied upon recovery of mobile phone from the possession of appellant Dr. Khalid Moin but the said evidence has also not been proved in accordance with law, therefore, they have prayed for the acquittal of the appellants. 12. Conversely the learned A.A.-G. And Advocate for the complainant have stated that the prosecution case rests upon; (1) ocular testimony consists of abductee P.W.5, corroborated by P.W.3 and the complainant, (2) identification test; and (3) recovery of mobile phone from the possession of appellant Dr. Khalid Moin. They have stated that all the pieces of evidence have been proved in accordance with law. 13. First of all we will take up the ocular testimony which consists of abductee P.W.5 and eye- witness P.W.3 corroborated by complainant. The evidence of P.W.5 and P.W.3 reveals that on 17-1- 2000 they left their house at 10-45 a.m. In their car. At about 11-00 a.m. They reached near Dada Bhai Chorangi where a car having G.S. Number plate intercepted them. Out of them two person, one was in police uniform, came to them. They also alighted from the car. The person who was in police uniform was subsequently identified to be appellant Muhammad Altaf. The said appellant told P.W.3 that P.W.5 was required in any inquiry; therefore, they took him and made him sit in their car having G.S. Number plate whereas appellant Altaf sat with P.W.3. Both the cars proceeded further, when they reached Yasinabad Chorangi near two Marriage Halls, PW.3 was allowed to go whereas, P.W.5 was taken away with direction to P.W.3 that they would contact him on his phone and obtained his phone number. This is the basic story of abduction. 14. P.W.5 took the story further by alleging that in the car he was blindfolded with black tape and he was made to wear dark glasses. Then he was taken to a house where his hands were tied and he
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was being tortured and demand of Rs,400,00,000 was made but he told them that he had no money. He was made to talk to P.W.3 on phone and told him that they should pay Rs,400,00,000 to abductors. However, on the next day at about 5-00 p.m. He (P.W.5) was released on a promise that he would pay Rs,15,00,000 within a period of one month with threats that he should not disclose the facts to police or CPLC people. He, returned to his house and went to sleep because he was given some injections. On the next date he informed the complainant and P.W.3 that the culprits had released him on the promise of payment of Rs,15,00,000 within one month. He also informed them that the accused had threatened him not to disclose the facts to police or CPLC. 15. We have gone through the evidence of all the 'three witnesses and found that the basic story has been enlarged to such an extent that the examination-in-chief of P.W.1 complainant spread into 3-1/2 pages. He gave all the details which occurred in the office when he reached in the office of P.W.3 on the telephone call received from one Yousuf Bhai who was also present in the office. Several questions were asked from this witness that the details mentioned by him in his deposition were not disclosed by him in the F.I.R. He admitted that such facts were not disclosed by him in the F.I.R. 16. It is pertinent to point out that according to the complainant; he received information on 17-1- 2000 at about 12-10 noon, which was conveyed to him by one Yousuf Bhai. He along with P.W. Pervez went to the office of P.W.3 where he remained up to 3-15 p.m. He gave the details of various conversations took place between him and acquitted accused Saleem Memon and other persons viz. Yousuf Bhai, Rafiq Bhai and Muhammad Illayas (P.W.3). He also gave the details of various telephone calls received by P.W.3 allegedly made by the culprits and then went to police station for lodging the report. In spite of knowledge of all the facts he did not disclose these facts in the F.I.R. He admitted that such facts were not disclosed by him in the F.I.R. Such portions of the statements are improvements in the evidence. We are conscious of the fact that it is not necessary that all the details should be given in the F.I.R. But at least major and important points are required to be mentioned in the F.I.R. But the complainant did not do so. From these improvements it appears that the improvements have been made in order to make the evidence in accord with the evidence of P.W.3 who had ample opportunity to consult with the complainant and others so as to fit in the circumstances of the case. The Honourable Supreme Court of Pakistan examined this question in the case of Shahbaz Khan Jakhrani v. Lal Beg Jakhrani 1984 SCMR 42. In that case the witnesses improved their oral evidence so as to make in accord ocular testimony with medical evidence, therefore, such evidence was held to be causing serious doubt about veracity of such witness. In the case of Sayed Saeed Muhammad Shah v. State 1993 SCMR 550 improvements in statement made by witness in the Court to strengthen the prosecution case was held to be not worthy of reliance. Thus, the improvements made by the witness in his evidence are not worthy of reliance, as such, they affect his credibility. 17. The Honourable Supreme Court of Pakistan in the case of Liaqat Ali v. State 1992 SCMR 372; has observed that when a witness is partly disbelieved, though he is not an interested witness rule of prudence demands that testimony should not be made a sole basis of conviction without corroboration by some other reliable evidence or circumstances. The complainant has been examined to corroborate the statement of P.W.3 as the F.I.R. Was lodged on the information supplied to him by P.W.3. The P.W.3 in his statement Exh.33 stated that immediately after return from the place of incident he narrated the whole incident to Yousuf Bhai and Majeed Bhai, but surprisingly none of them has been examined to support and corroborate the P.W.3. However, he further stated that when complainant came to his office at that time he came to know that P.W.5 was abducted as he received telephone call from culprits who demanded ransom amount of Rs,5,00,00,000 for his release. He simply informed Razaq Bhai, the complainant and P.W. Pervez Bhai 'that:- Rafiq Bhai had been kidnapped". He did not state that he disclosed any other facts to Razaq
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Bhai about the incident or details of the incident, as such, the statement of the complainant with regard to details of abduction are coming within the ambit of hearsay evidence which is inadmissible under the Qanun-eShahadat Order, 1984. 18. His further statement with regard to other details which he mentioned in his examination-in- chief, which is spread into 3-1/2 pages, the defence counsel inquired from him as to whether he stated such facts in his further statement under section 161, Cr.P.C. Recorded on 29-3-2000 to which he replied in affirmative. The trial Court took upon itself by examining the further statement under section 161, Cr.P.C. Of the complainant and made observation that such statements were not recorded in the said statement. 19. It is pertinent to point out that the trial Court was not justified in examining the F.I.R. Or 161, Cr.P.C. Statement to record such observation, for the simple reason, that the said statements were not recorded by any Court in any judicial proceedings nor a presumption of genuineness and truthfulness is attached to such statements under Qanun-e-Shahadat Order, therefore, such observation should have not been made by the trial Court with regard to statement recorded by the police. 20. Under Article 140 of Qanun-e-Shahadat Order a separate procedure has been provided to prove the contradictions from the previous statement of a witness. The said procedure should have been adopted by the defence counsel. The correct procedure for obtaining contradictions of a statement recorded in Court from the statement recorded by the police under section 161, Cr.P.C. Statement is that the attention of the witness is drawn towards the said portion of the statement and if the witness admits the said portion then an explanation is required to be obtained from the witness about the contradictory statement made by him in the Court from his 161, Cr.P.C. Statement. If he denies, then the same question is required to be asked from the Investigating Officer, who recorded such statement to ascertain whether he recorded such statement and whether or not the witness had stated such facts in the said statement. After that such contradiction is required to be exhibited in evidence and then it can be used while assessing the evidence of witness. It is well-settled principle of law that if any act is required to be'done in a particular manner then it should be done in that manner, otherwise, it should not be done at all. It appears that the learned trial Judge was ignorant of the above provisions of law. He did not pay adequate attention in recording the evidence. However, such questions were not asked from the Investigation Officer who recorded further statement of complainant on 29-3-2000. When it was pointed out to the learned counsel for the appellants that no such questions were asked from Investigating Officer who recorded such statement and procedure to prove contradictions as required under Article 140 of Qanun-e-Shahadat Order was not adopted, then they frankly conceded that the contradictions have not been proved in accordance with law as such they cannot be called contradictions. 21. A perusal of statements of P.W.3 reveals that the examinationin-chief of this witness is spread into 4-1/2 pages. Examination-in-chief of P.W.5 abductee is spread into 6-1/2 pages. They have apparently made improvements in their evidence recorded in Court from their statements recorded by the police. Their evidence is also hit as discussed above while discussing the evidence of complainant. As such their evidence has been affected in view of rule laid down by the Honourable Supreme Court in the above mentioned authorities. Therefore, their evidence also requires independent corroboration. 22. From the assessm ent of their evidence it is clear that their evidence requires independent corroboration. It is well-settled that if a piece of evidence requires corroboration then that piece of evidence cannot corroborate an other piece of evidence which also require corroboration. Reference is invited to Ali Akhtar Hussain v. State 1972 SCMR 40. In the present case the evidence of P.Ws. 3 and 5 requires independent corroboration; therefore, they cannot corroborate each other.
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Hence the prosecution was required to lead independent evidence, which can corroborate their evidence, but the same is lacking in the case. 23. The learned Advocate for the appellants have mainly attacked the evidence of P.Ws. 3 and 5 and further statement of complainant on the ground that their statements were recorded after more than 2-1/2 months and without any explanation. On the other hand the learned A.A.-G. Took the view that the delay in recording the statement is due to the fact that the witnesses were under threat and fear of culprits, therefore, a reasonable explanation has been furnished, hence their evidence has no infirmity. 24. The Honourable Supreme Court of Pakistan examined the question of delay in recording the statement under section 161, Cr.P.C. In the authorities referred to by the learned Advocates for the appellants. The Honourable Supreme Court in the case of Muhammad Khan (supra) has observed that statement under section 161, Cr.P.C. Recorded with delay without any plausible explanation causes serious suspicion on the credibility of witnesses, therefore, such evidence was not relied upon. In the case of Muhammad Sadiq (supra) there was delay of 24 hours. The witness was friend of the deceased but he did not disclose to any one for the said period that he saw the murder, therefore, such evidence was not relied upon. In the case of Sahib Gul v. Ziarat Gul, 1976 SCMR 236, there…
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