IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Anti Terrorism Jail Appeal No. 05 of 2008 &

Sp. Anti Terrorism Jail Appeal No. 29 of 2007

 

 

 Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Irfan Saadat Khan.

 

J U D G M E N T

 

Dates of hearing                 :        10.12.2009, 26.01.2010, 03.2.2010,

17.2.2010 & 02.3.2010.

Appellants through              :        Mr. Abdul Razaq Advocate.

Respondent  through           :        Mr. Khadim Hussain D.P.G.   

 

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GULZAR AHMED, J.:- These two jail appeals have been filed against a common judgment dated 30.10.2007 passed by learned Judge Anti Terrorism Court-I, Karachi in Special Case No.20 of 2007, by which both the appellants have been convicted under Section 7(e) of the Anti Terrorism Act, 1997 and sentenced to life imprisonment and forfeiture of their property to the extent of Rs. 2,00,000/- each and in default/non-recovery to suffer R.I. for six months more with benefit of Section 382-B Cr.P.C.

 

Brief facts of the matter are that one Kashif Khan son of Dr. (H) Abdul Wahab Khan has lodged an FIR No. 202 of 2007 at Police Station Shahra-e-Noor Jehan, North Nazimabad, Karachi on 14.4.2007 at 0200 hours alleging that his father Dr. (H) Abdul Wahab Khan, aged 50 years, is a doctor and running a clinic near Orangi Town, Qatar Hospital with the name and style of Atif Poly Clinic. On 12.4.2007 at about 5:00 p.m. his father left the house on motorcycle No.KAZ-6080, CD-70, Black color model 1990 by informing his mother Mst.Mairaj Bano that he is going to visit a patient at New Karachi Sindhi Hotel near Ameen Hotel on telephonic request of a lady. Until 12 midnight the father of the complainant did not return upon which search was started with no result. The complainant also called on the cell phone No. 0321-8721899 of his father but found the same to be switched off. He then got a report registered at Police Station Shahra-e-Noor Jehan, North Nazimabad, Karachi of missing of his father and continued the search. On 14.4.2007 at about 12 1/2 at night a call was received from the cell phone No. 0321-8721899 of complainant’s father on the landline No. 6626302 of the house which was received by complainant’s uncle Tassaduq Ali Khan when the unknown person informed the complainant’s uncle that father of complainant is with them and till 12:00 noon Rs. 20,00,000/- be paid to them otherwise father of complainant will be killed. On receipt of this call, the complainant went to Police Station and lodged the complaint of abduction of his father for ransom against unknown accused persons.

 

It appears that subsequently on negotiations with the accused on telephone the ransom amount was agreed at Rs. 40,000/- with a mobile telephone set at appointed place about which the complainant party informed the I.O. On receipt of ransom amount the accused were apprehended and the ransom amount is said to have been recovered from them and on the pointation of accused abductee was recovered from their house. There were two accused who disclosed their names as Dr. Muhammad Abrar Younus and Mst. Huma. The accused were arrested and after usual investigation were challanned and the case was transferred to Anti Terrorism Court-I, Karachi for disposal in accordance with law. Charge was framed to which both the appellants pleaded not guilty and claimed to be tried. 

 

Prosecution examined SIP Muhammad Hanif who recorded FIR and produced the same in Court as Exh:5/A, PW Mst. Mairaj Bano wife of abductee who produced memo of inspection as Exh: 6/A and memo of arrest of accused persons and seizer as Exh: 6/B, PW Dr. (H) Abdul Wahab Khan, the abductee, who produced Mashirnama of recovery of his motorcycle as Exh:7/A and memo of recovery of his Surgical kit as Exh: 7/B, PW Shabbir Ahmed from whose house the surgical kit was recovered and he admitted his signature on memo of recovery Exh: 7/B, PW Shakir Abbas the owner of the house of which accused Dr. Muhammad Abrar Younus was tenant, who produced tenancy agreement as Exh: 9/A, PW Kashif Khan complainant who admitted his signatures on FIR Exh:5/A and the memo of arrest and seizure Exh:6/B and produced memo of recovery of abductee and seizure as Exh:10/A, PW Abdul Wajid, who admitted his signature on Exh:7/A being memo of recovery of motorcycle of abductee, PW Abdul Rauf Khan the brother of the abductee who produced photocopy of Entry No. 38 of Station Diary dated 13.4.2007 as Exh: 12/A, PW Bashir Ahmed the I.O who produced copy of letter dated 14.4.2007 of SSP Investigation AVCC CCP Karachi for conducting investigation as Exh: 13/A, letter addressed to CPLC for keeping observation on abductee’s mobile phone and PTCL line of abductee’s house as Exh: 13/B, attested copy of station diary No. 18 dated 15.4.2007 as Exh: 13/C, the receipt of handing over the abductee to his son as Exh: 13/D, copy of letter dated 16.4.2007 to SSP AVCC Karachi for obtaining details of calls and names of owner of mobile telephone  and PTCL No. as Exh: 13/E, inspection memo of place of abduction as Exh: 13/F, seizer memo of audio cassette as Exh: 13/G, details of calls of mobile phone No. 0321-8721899 as Exh: 13/H, details of calls of mobile phone No. 0321-2537665 as Exh: 13/I, memo of seizer of phone calls print as Exh: 13/J, subscriber information of mobile phone No. 0345-2537667 as Exh: 13/K. Court witness Osman Maftun of Warid Telecom who produced Exh: 16/A to Exh: 16/J, Court witness Norbert J. Almeida, Assistant Manager Telenor produced document Exh: 17/A to 17/E. All the PWs and Court witnesses were cross examined by the counsel for defence. The trial Judge also made a local inspection of the house where abductee was kept as Exh: 19. On the closure of side of prosecution, statement under section 342 Cr.P.C. of appellant Dr. Muhammad Abrar Younus and appellant Huma was recorded. The appellants did not examine themselves on oath nor they produce any defence witness. Upon hearing the Advocate for the parties the impugned judgment was announced convicting and sentencing the appellant as noted above.

 

Learned counsel for the appellants has contended that there is no unimpeachable evidence on the record of demand of ransom and evidence of mobile phone does not connect the appellants as the mobile phone was not in the name of abductee. He further contended that even the evidence of tape recording or cassette produced in evidence has no bearing as neither the copy of cassette was provided to the appellants nor the cassette was played in the Court. He contended that non-playing of cassette in Court amounted to non-production of evidence or raises adverse inference against the prosecution. As regards recovery of ransom amount, he states that currency notes were not tainted and were not shown to I.O. and compliance of section 103 Cr.P.C. was not made of the recovery of ransom amount although the recovery was made in a public place. He further contended that no recovery of any arm or even a stick or Danda was made from the appellants and there was no possibility of the appellant abducting and keeping the abductee in chain for almost three days. He further contended that in the absence of arm, it cannot be expected that alleged abductee would not resist his abduction and would have not made hue and cry attracting the Muhalla people where he was kept abducted and further nothing has been said in the evidence as to who gave food to the abductee and who took him to the bathroom etc. He further contended that the abductee and appellant Dr. Muhammad Abrar Younus were known to each other being both Homeopathic Doctors and had clinic on same road and PW 4 Shabbir Ahmed in his evidence has deposed that he has seen the abductee and appellant Dr. Muhammad Abrar Younus together. He further contended that the appellant Dr. Muhammad Abrar Younus in his statement under Section 342 Cr.P.C. has stated that the abductee was on visiting terms with him and the abductee has intended to marry co-accused Mst. Huma who rejected the abductee and further the abductee had borrowed Rs.150,000/- from Mst. Huma and she demanded the return of said amount from him and on this count the abductee was angry and that SIP Ch.Manzoor Ahmed due to fight between his brother Ch.Nisar Ahmed  and appellant Dr. Muhammad Abrar Younus at railway station Pcca Aana during Local Government Elections 2000 joined hands with abductee and in collusion with police implicated him in the false case. Learned counsel further contended that although the incident is alleged to have been taken place on 12.4.2007 at 5:00 p.m. but its FIR was lodged on 14.4.2007 at 2:00 a.m. with unexplained delay. He has contended that the very FIR is doubtful, manipulated and based upon afterthought. As regards identification, he contended that appellants were not known to PWs except abductee. He contended that there was no deliberate delay on the part of the appellants in filing of the appeals which was occasioned due to non compliance of rule 90 of Jail Rules by the Superintendent Central Prison Karachi. He further contended that in any case while admitting appeal the Court has already condoned the delay. In support of his submissions he has relied upon the case of ASIF HUSSAIN V/S State (2005 MLD 1911), MUHAMMAD AKRAM V/S STATE (2009 SCMR 230),  IRSHAD ALI ALIAS ISHOO V/S STATE (PLD 2006 Karachi 178), MURSAL KAZMI ALIAS QAMAR SHAH  V/S STATE (2009 SCMR 1410),  SHEIKH MUHAMMAD RASHID V/S MAJID NIZAMI, EDITOR-IN-CHIEF, THE NATION AND NAWA-E-WAQAT, LAHORE (PLD 2002 SC 514) and SHAHID ALIAS KALOO V/S STATE (2009 SCMR  558).

 

On the other hand, learned DPG contended that even if the evidence regarding use of abductee mobile phone and that of his wife is disregarded still there is evidence that several calls were made from the mobile phone of appellant Huma to the wife of abductee. He has contended that mobile phone is in her name and the ownership of the mobile phone by the appellant Huma and making of calls to the abductee’s wife are supported by the evidence of Court witness No. 2 namely Norbert J.Almeida whose evidence was not called in question. He further contended that evidence of Court witness No. 1 namely Osman Maftun shows that the mobile phone of abductee was activated with the old number in May 2007 after the abductee has produced the jacket of mobile phone from which mobile phone calls were received at the abductees house. He contended that the jacket is the evidence and on the jacket there is a sticker which contains SIM number but the sticker was misplaced which has no relevance as the mobile phone company has activated the mobile phone of the abductee with the same old number. He contended that ransom calls were made from the mobile phone which is established. The learned DPG further contended that as the cassette was not played in the Court, it is not a material piece of evidence and he does not rely upon it. He contended that the provision of section 103 Cr.P.C. was complied with inasmuch as Kashif son of abductee was the Mashir of recovery of the abductee and a natural witness and he has no reason to falsely implicate the appellants in the case. He further contended that no private person involves himself in criminal cases by giving statement. He further contended that recovery of ransom amount is sufficient evidence to connect the appellants and there was no need for having ransom amount tainted. He further contended that PW 7 Abdul Wajid who was Mashir of recovery of motorcycle of abductee is a natural witness so also PW Shabbir Ahmed and all the prosecution witnesses have supported the prosecution case. He contended that the case has been proved against the appellants beyond doubt and there is no contradiction in the statement of any of the witnesses. He contended that it was not necessary for the appellant to be armed for abduction of abductee as some threat to life is sufficient. He further contended that abductee did not know the appellants and that there may be some minor irregularities which are not material but curable. The ground of delay in filing of appeal was not pressed by the learned DPG.  He finally contended that both the appeals are liable to be dismissed. In support of his submission, he has relied upon the case of  SHARAFAT ALI  V/S THE STATE (1999 SCMR 329).

 

Learned counsel for appellants argued in rebuttal that it has come in evidence that abductee was put in chain but it is not stated anywhere that he could not have moved and stood up and made noise and that this fact is intriguing as to why the abductee did not raise any hue and cry and sought help from the neighbors of the house where he is said to have been kept in abduction.

 

We have considered the submissions made by the learned counsel and have also gone through the record.

 

The main witnesses in the case are PW 2 Mst. Mairaj Bano the wife of abductee, PW 3 Dr.(H) Abdul Wahab Khan the abductee and PW 6 Kashif Khan the son of the abductee and PW 9, I.O.Bashir Ahmed.  

 

          The only direct evidence available on the record of the abduction of the abductee is that of abductee himself. So for the demand of ransom is concerned, the only evidence available on the record is that of PW Mairaj Bano. The PW Kashif Khan has lodged the FIR and has followed his mother PW Mairaj Bano for payment of ransom amount and is also a Mashir of arrest and recovery of property made from the appellants so also is the Mashir of recovery of abductee from the house of appellants. 

 

PW Dr. (H) Abdul Wahab Khan, the abductee in his evidence stated that he is a practicing Homeopathic Doctor since last 10/11 years having clinic near Qatar Hospital Orangi Town, Karachi. On 11.4.2007 at noon time he has received a call at his house PTCL line No. 021.6626302 from a lady caller asking him to perform circumcision of her son to whom he replied that since she was unknown to him he could not do that without making mind and thinking over it. On 12.4.2007 again at noon time he received a call at his same residential telephone and caller repeated the same thing and enquired as to whether he has made up his mind and insisted that he should do the same and he replied that she was not known to him. The caller stated that she knew him and he should go to Sindhi Hotel near Ameen Hotel and she would contact him there to which he agreed to reach there at about 1730 hours. After informing his wife PW Mairaj Bano he left the house at about 1700 hours along with medical kit on his black motorcycle Registration No. KAZ-6080 and reached at Ameen Hotel at about 1730 hours where the caller lady came in contact with him and boarded on his motorcycle and took him to her house in Sector 5/E, North Karachi. He parked his motorcycle at the door of her house and entered the house and enquired from the lady about her children/son on which she replied that they have gone to Medressah. In the meanwhile her husband also came in the house and captured him. Both, the husband and wife dragged him towards the kitchen and iron cot and forced him to sit on it and then put iron chain in his hand and after making him captive issued threats that in case he cried they would kill him. The abductee further stated that in the night of 13/14.4.2007 the male accused snatched his mobile phone bearing No. 0321-8721899 and from it called at his residential telephone number and told the responding person that he has been kidnapped and made captive and demanded ransom of Rs.20,00,000/- as condition for his release and thereafter gave the mobile telephone to the abductee for brief talk with his wife and he has said to his wife PW Mairaj Bano that he was in difficulty and not feeling well and she should do her best for his release. The abductee has further stated that on 15.4.2007 at night time police party came to the house of the accused along with his son PW Kashif Khan and both the accused handcuffed and Police released him by removing the chain and his son Kashif Khan brought him home. He has stated that Police prepared memo of his recovery/release. On 17.4.2007 he was called by I.O. Bashir Ahmed when HC Danish was also present alongwith male accused and the accused led to recovery of his motorcycle from Rajput Milk Shop and its Mashirnama was prepared. The abductee further showed the Police the place of his kidnapping of which Mashirnama was prepared and then male accused led the Police for recovery of medical kit from house No.L-556, Sector 36-H, Taiser Town near Lyari Expressway whose Mashirnama was prepared. In cross examination he has denied the suggestion of knowing anything about Faiz-e-Aam Clinic or its location or knowing accused Huma an employee of Faiz-e-Aam Clinic or working as supplier of potency medicines of homeopathic or having borrowed Rs.1,50,000/- from Huma for investment in his business or that he had knowledge of Huma having obtained divorce from her previous husband and he intended to marry her and that on demand of loan by Huma and her marriage to co-accused Abrar he has got them falsely implicated in the crime. Apart from this evidence of the abductee about his abduction, his son PW Kashif Khan is a Mashir along with SIP Ch. Manzoor Ahmed of recovery of abductee. The IO Bashir Ahmed in his evidence has stated that both the accused have led the police to their house from which the abductee was recovered. PW Mairaj Bano the wife of the abductee in her evidence has stated that on 12.4.2007 at about 1700 hours her husband has left the house on his motorcycle informing her that he is going for examination of a patient on a call of a women at New Karachi near Ameen Hotel and when her husband did not return by about 2200 hours, she became worried and in the meanwhile her son PW Kashif Khan also came and she and her son reached him in neighbourhood until 2400 hours. Consequently her son with his uncle PW Abdul Rauf went to the Police Station for recording report of missing of her husband. She also stated that she has received telephone calls from the accused demanding ransom for release of abductee her husband and that while paying the ransom amount the accused were arrested and her son had proceed with the Police party for recovery of her husband. These are the material piece of evidences regarding establishing the fact of abduction of the abductee.

         

As regards the case of demand for ransom is concerned,  PW Mairaj Bano the wife of the abductee in her evidence has stated that as many as seven telephone calls were received for demand of ransom, the first one of which was received at 0030 hours on 14.4.2007 from the mobile phone of her husband which was received by Tassaduq Ali Khan (the brother in law i.e. abductee sister's husband) who informed PW Mairaj Bano that her husband has been made captive and Rs.20,00,000/- is to be paid for his release. Tassaduq Ali Khan has not been examined and this piece of evidence can easily be overlooked as mere hearsay. PW Mairaj Bano has further deposed that after the caller has finished the talk with Tassaduq Ali Khan, again a call was received when she talked with her husband who informed her that he is in captivity and asked her to fulfill the demand of the accused. After this telephone call her son PW Kashif Khan went to Shahrah-e-Noor Jehan Police Station and lodged report of abduction of her husband for ransom and while returning home he brought a tape recorder supplied by Police/CPLC which was connected to the PTCL No. 021-6626302 for recording subsequent conversation of the accused. She has further stated that on 15.4.2007 at about 1700-1730 hours she received telephone call from the accused using the mobile telephone of her husband on her PTCL line when demand for ransom was repeated and at her request the ransom amount was agreed at Rs.40,000/-. Such amount was to be paid to accused at Shershah near Hub River Road. She stated that she could not go to the given place and again at 1930 hours a call from her husband's mobile telephone on PTCL line was received when the accused asked her as to why she has not reached with the ransom amount at the given place on which she informed that she could not arrange the ransom amount upon which the accused asked her to arrange the same with an additional demand of mobile telephone set and should reach there. She has stated that she could not arrange purchasing of mobile telephone set in such a short time and decided to give her own telephone set to the accused. At 0200 hours the accused reminded her and she gave him SIM number of her set being No. 0321-2537665 and this time the accused changed the place for receiving the ransom and mobile telephone set at Nagan Chowrangi, Karachi  Broast Restaurant and asked her to reach their by 2130 hours. She further deposed that she narrated this fact to her son PW Kashif Khan who arranged a taxi car for going to the place and PW Kashif Khan also informed I.O. Bashir Ahmed  of this development. She proceeded in taxi car while PW Kashif Khan and Arif Khan followed on motorcycle and motor car respectively and reached Nagan Chowrangi at 2100 hours where I.O. Bashir Ahmed met them. She stated that she went near Karachi Boast Restaurant and at 2130 hours and she received call on her mobile telephone number when she informed that she is standing near Karachi Broast Restaurant. After 10 minutes another call was received on her mobile telephone when she was advised to stand near Agha Juice Centre and Peshawari Ice cream in front of Iqbal Plaza and that a woman will come to receive the ransom amount. While she was standing on footpath on Shahrah-e-Noor Jehan, a Yamaha motorcycle registration No. OK-5678 came with a male and female on it and female took from her the polythene bag of white colour containing Rs.40,000/- in 40 currency notes of Rs.1000 denomination and while the women set on motor cycle and it was about to move, I.O. Bashir Ahmed and his staff caught the accused and recovered ransom amount from the women and seized the motorcycle. In all this, witness has mentioned that a total of seven telephone calls were received  for demand of ransom, first one of which as stated above was received by Tassaduq Ali Khan which as stated by this witness was made from the mobile telephone of her husband. Out of the six telephone calls which this witness has herself received, she has stated that two calls were received from the mobile telephone of her husband on the PTCL line while in respect of two telephone calls she gave no description as to on which telephone line the calls were received and from which telephone number. The last two telephone calls she has stated to have received on her own mobile telephone.

 

          The record regarding the ownership of and outgoing-incoming calls of mobile telephone of the abductee and that of PW Mairaj Bano has been produced by the Court witness namely PW Osman Maftun, Manager Government Relations, Warid Telecom Karachi. Norbert. J Almeida, Assistant Manager Safety & Security, Telenor Pakistan has produced record of ownership of mobile telephone of accused Huma and of its outgoing-incoming calls. I.O.Bashir Ahmed has also produced record of outgoing-incoming calls of the abductee and PW Mairaj Bano mobile telephones and subscriber information of accused Huma mobile telephone.

 

          The prosecution has heavily relied upon the evidence of mobile telephone to connect the accused with the commission of crime and therefore this piece of evidence needs close examination.  

 

With regard to mobile telephone No. 0321-8721899 which was stated by PW Mairaj Bano to be belonging to her husband was stated by Court witness Osman Maftun was registered in the name of one Salamat Zar from December 2006. He has stated that in May 2007 the said telephone number was changed from the name of Salamat Zar to the name of the abductee Dr. (H) Abdul Wahab Khan on showing of jacket of the SIM. I.O. Bashir Ahmed in his evidence has stated that accused Muhammad Abrar Younus during interrogation has informed him that he has lost the mobile phone of the abductee. The mobile phone of the abductee has not been recovered nor produced in evidence. Court witness Osman Maftun in his evidence has stated that the mobile telephone No. 0321-8721899 was changed in the name of Dr. (H) Abdul Wahab Khan the abductee in May 2007 when he had come with jacket of the SIM and on verification of the jacket of the SIM, the said mobile number was changed in the name of Dr.(H) Abdul Wahab Khan. In his cross-examination he has admitted that the jacket Ex-16/D produced to him did not carry sticker of SIM number. He voluntary stated that at the time of production of the jacket by Dr. (H) Abdul Wahab Khan the sticker must be available with the jacket and might have been misplaced in the company. He admitted in his cross- examination that there is no visible mark on jacket Ex-16/D at the moment to indicate that any sticker was ever pasted on it. This Court witness has produced Cellular Services Agreement Form in the name of Salamat Zar as Exh:16/B. Such Cellular Services Agreement Form does contain SIM Card No. 50031944. In the Cellular Services Agreement Form of Abdul Wahab Khan, the abductee, produced as Exh: 16/C, the column provided for SIM Card number is blank. Screen Shot Exh: 16/E in the name of Abdul Wahab, the abductee, also does not contain the SIM number.

 

Thus, it becomes apparent from the above evidence that mobile telephone No. 0321-8721899 did not exist in the name of Dr. (H) Abdul Wahab Khan, the abductee, until May 2007 and that transferring of said telephone number in his name in May 2007 was obtained without there being SIM number of registered owner of said mobile number.

 

PW Mairaj Bano has claimed to be owner of mobile telephone No. 0321-2537665. Court witness Osman Maftun in his evidence has clearly stated that this mobile telephone number is registered in the name of Muhammad Umar Khan since November 2006 and in this respect has also produced Cellular Services Agreement Form in the name of Muhammad Umar Khan with SIM number as Exh: 16/H. Thus, this mobile telephone number never came to be registered in the name of PW Mairaj Bano. It may be noted that the mobile telephone of Dr. (H) Abdul Wahab Khan, the abductee nor of Mst. Mairaj Bano ever came to be recovered nor were they produced in Court. Thus, the very evidence as appearing on the record creates very serious doubt as to whether there were mobile telephones with Dr. (H) Abdul Wahab Khan, the abductee, and PW Mairaj Bano.

 

Although, conclusion drawn from the evidence available on the record is that Dr. (H) Abdul Wahab Khan, the abductee and PW Mairaj Bano did not possess the mobile telephone as claimed by them and in such eventuality the considering of outgoing and incoming calls made on these mobile telephone numbers become of little significance but in any case such aspect has also been examined with due care and caution.

 

It may be noted that PW Mairaj Bano has claimed as many as seven calls were received out of which the first one was attended by Tassaduq Ali Khan. The details of the calls received are as follows:

 

 

1.

 

14.4.2007

 

0030 hours

 

From abductee’s mobile telephone on PTCL line

 

Attended by Tassaduq Ali Khan.

 

 

 

2.

 

 

-----

 

 

-----

 

From which telephone number this call was received and on which telephone not mentioned.

 

 

Abductee talked with her wife PW Mairaj Bano.

 

 

3.

 

 

15.4.2007

 

1700-1730 hours

 

From abductee’s mobile telephone on PTCL line

 

 

Attended by PW Mairaj Bano

 

4.

 

15.4.2007

 

1930 hours

 

 

From abductee’s mobile telephone on PTCL line

 

 

Attended by PW Mairaj Bano

 

 

5.

 

 

15.4.2007

 

 

2000 hours

 

From which telephone number this call was received and on which telephone not mentioned.

 

 

Attended by PW Mairaj Bano

 

 

6.

 

 

15.4.2007

 

 

2130 hours

 

Call received on PW Mairaj Bano on her mobile telephone. From which telephone number not mentioned.

 

 

Attended by PW Mairaj Bano

 

7.

 

15.4.2007

 

2140 hours

 

Call received on PW Mairaj Bano on her mobile telephone. From which telephone number not mentioned.

 

 

Attended by PW Mairaj Bano

 

The Exh:16/G produced by Court witness Osman Maftun shows that following telephone calls were received on 14.4.2007 from mobile telephone No. 0321-8721899 on PTCL line No. 021-6626203:

 

 

Sr.No.

Date

Time

01

14.4.2007

00:50:53

02

14.4.2007

14:27:55

03

14.4.2007

14:29:20

 

 

The telephone calls claimed by PW Mairaj Bano to have been received on her PTCL line do not tally with the calls which are shown in Exh:16/G inasmuch as not only there is considerable difference of time but the latter two calls are not even mentioned by PW Mairaj Bano. Court witness Norbert J. Almeida has produced record of outgoing and incoming calls from mobile telephone No.0345-2537667 belonging to accused Huma as Exh:17/D, the details of which are as follows:

 

Sr.No.

Date

Time

 

1.

15.4.2007

20:28:02

On the mobile phone of PW Mairaj Bano

2.

15.4.2007

20:04:04

On PTCL Line of PW Mairaj Bano

3.

15.4.2007

21:06:45

On the mobile phone of PW Mairaj Bano

4.

15.4.2007

21:08:06

On PTCL Line of PW Mairaj Bano

5.

15.4.2007

21:24:33

On the mobile phone of PW Mairaj Bano

6.

15.4.2007

21:29:56

On the mobile phone of PW Mairaj Bano

7.

15.4.2007

21:35:47

On the mobile phone of PW Mairaj Bano

8.

15.4.2007

21:42:53

On the mobile phone of PW Mairaj Bano

9.

15.4.2007

21:44:29

On the mobile phone of PW Mairaj Bano

 

 

PW Mairaj Bano in her evidence has nowhere stated that she has received any telephone call from mobile telephone of accused Huma nor has she mentioned of having received any one call from mobile telephone No. 0345-2537667. PW Kashif Khan in his cross-examination has specifically admitted that there had been no conversation between him and the culprit/caller on telephone. Besides, in Exh: 6/B which is memo of arrest of accused persons and seizure there is overwriting in mentioning the telephone No. 0345-2537667 said to have been recovered from the accused which overwriting has not been explained as to when and how this telephone number came to be written in the memo of arrest and seizure. The total calls which PW Mairaj Bano in her evidence stated to have received on PTCL line and mobile telephone are seven in numbers while the Exh:7/D shows that total nine calls seem to have been made from the very mobile of accused Huma. Yet again, Exh: 16/J which has been produced by Court witness Osman Maftun, which contains the details of telephone calls received on mobile telephone of PW Mairaj Bano from the mobile telephone of Huma altogether omits telephone call appearing at serial No. 2, 3 & 4 made from the mobile telephone of accused Huma. Thus, the omission of three calls from Exh:16/J from one reflected in Exh:17/D makes both the documents not much reliable as in order to make the documents fully reliable, they should have been ad idem being computer generated record of the two mobile telephones.  Yet again, time of the calls made from mobile telephone of accused Huma do not precisely tally with the time of telephone calls which PW Mairaj Bano in her evidence has stated to have received either on her PTCL line or on her mobile telephone. This piece of evidence of telephone calls said to have been received at the house of PW Mairaj Bano or on her mobile telephone is inconsistent and does not corroborate the statement of PW Mairaj Bano and thus cannot safely be relied upon. Yet no document has also been produced by the prosecution to show that PTCL line No. 021-6626302 was installed at the house of PW Mairaj Bano.

 

The other major factor which has created a serious dent in the prosecution case is with regard to establishing of the fact of demand of ransom said to have been recorded on a cassette through Tape Recorder. PW Mairaj Bano in her evidence has stated that after the telephone call, demanding ransom, was received on 14.4.2007, her son PW Kashif Khan went to the Police Station Shahra-e-Noor Jehan and lodged the report on 14.4.2007 at 0200 hours of kidnapping for ransom of her husband and on return from the Police Station brought with him Tape Recorder supplied by police/CPLC and same was connected with her PTCL line for recording subsequent conversation with the culprits and she has also stated in her evidence that subsequently telephone calls were received on the PTCL line where the demand for ransom was repeated. PW Kashif Khan in his evidence has stated that Tape Recorder was provided by AVCC on 14.4.2007 at morning time without any documentation and the same was installed by them in his absence. I.O. Bashir Ahmed, who is a SIP Investigation of AVCC Karachi, in this respect made the following statement in his cross examination:

 

“ I say that I had neither provided nor installed ‘Tape recorder’ at the residence of victim with his PTCL No. 021-6626302. it is incorrect to say that it was not in my knowledge that CPLC authorities had provided/installed ‘ Tape recorder ’ with the victim’s domestic PTCL number mentioned above. It is correct to say that I had not recorded 161 Cr.P.C. statement of any person from CPLC in connection with providing/installing ‘Tape recorder’ with cassette (article P/9) at the victim’s domestic telephone number nor that of any expert.”

 

 

PW Kashif Khan in his evidence has stated that audio cassette containing the recording of conversation between them and culprit/caller was produced by him to I.O. Bashir Ahmed and such audio cassette was produced in Court as article P/9. I.O.Bashir Ahmed in his cross-examination admitted the suggestion that there was no specific mark on the audio cassette (article P/9) tending to show that it related to this case and to have been provided/installed by any government functionary nor he himself put any specific mark on it on its production by complaint PW Kashif Khan to him and securing the same. He denied the suggestion that the audio cassette article P/9 does not contain/carry the voice/sound of accused, victim and PW Mairaj Bano. Now, as is apparent from the evidence that audio cassette was produced in Court as article P/9 but it never came to be played in Court nor was there any evidence of Expert witness to connect the voice recorded in audio cassette with that of accused, the abductee and PW Mairaj Bano. Even the learned DPG in his arguments has given up this piece of evidence for supporting the prosecution case. PW Mairaj Bano in her cross-examination has stated that she cannot say if the person who called her and demanded ransom for the release of her husband was accused Dr.Muhammad Abrar Younus.

 

Prosecution had in its custody prime corroborative piece of evidence in the shape of audio cassette said to be containing conversation between accused, abductee and PW Mairaj Bano and demand of ransom amount for release of the abductee. The prosecution, however, did not chose to have this prime corroborative evidence established in Court by not playing the audio cassette and by not obtaining Expert’s opinion on it. The corroborative evidence is meant to test the veracity of oral evidence and both are required to be read together and not in isolation and if such prime corroborative evidence is omitted to be produced in Court, the only inference that can be drawn from it would be that had the audio cassette been played in Court it would have not supported the prosecution story.

 

The other discrepancies/contradictions in the prosecution evidence are that PW Dr. (H) Abdul Wahab Khan in his evidence has stated that he left the house along with medical kit. PW Mairaj Bano though stated that her husband left on his motorcycle and even gave its registration number but did not mention that he took the medical kit with him. PW Mairaj Bano in her evidence has stated the her husband did not return home by 2200 hours and PW Kashif Khan in the meanwhile also came home, she and her son searched for the victim in the neighborhood upto 2400 hours. PW Kashif Khan in his evidence did not say anything about he and PW Mairaj Bano searching his father in the neighborhood. PW Mairaj Bano in her evidence stated that when her husband talked to her on telephone he advised her to fulfill the demand of culprits while PW Dr.(H) Abdul Wahab Khan, the abductee in his evidence stated that he has said to his wife to do her best for his release. PW Kashif Khan in the FIR has stated that he has tried to contact his father on his mobile telephone but it was found switched off but neither PW Mairaj Bano nor PW Kashif Khan said anything in their evidence about making calls on the mobile telephone of Dr.(H) Abdul Wahab Khan, the abductee. PW Mairaj Bano in her evidence stated that ransom amount was handed over by her to woman accused in polythene bag of white colour but PW Kashif Khan in his evidence has stated that ransom amount was wrapped in a piece of cloth.

 

The other interesting factor regarding payment of ransom amount is that as per PW Mairaj Bano the accused have demanded not only the ransom amount of Rs. 40,000/- but had made an additional demand of mobile telephone set and she had also made up her mind to give her own mobile telephone set but while handing over the ransom amount, she only handed over the ransom amount of Rs.40,000/- and not the mobile telephone set. In view of the fact that the ransom amount of Rs. 40,000/- with mobile telephone set was demanded by the accused for the safe release of the abductee the husband of PW Mairaj Bano, it could not be expected that PW Mairaj Bano will save her mobile telephone set and put the life of her husband in grave danger by not complying with the full demand of accused persons. PW Mairaj Bano in her evidence has stated that police reached at Nagan Chowrangi prior to her arrival while I.O. Bashir Ahmed in his evidence stated that complainant party reached at Nagan Chowrangi prior to the police party. PW Mairaj Bano in her evidence has stated that after the call was received from the accused for delivery of ransom amount at Karachi Broast Restaurant at 0200 hours, she told this fact to her son PW Kashif Khan as he then was available at the house and her son PW Kashif Khan informed the police about the culprit having given the place of receiving the ransom amount on telephone. PW Kashif Khan in his evidence stated that he does not remember as to when caller’s call came for handing over the ransom amount to culprit at Nagan Chowrangi and when his mother PW Mairaj Bano told him about it. As regard informing the police of such fact, he does not say that he himself informed the police but stated that ‘We’ informed the police of such fact. PW Mairaj Bano in her evidence has stated that the place of handing over the ransom amount was fixed near Agha Juice and Peshawari Ice Cream in front of Iqbal Plaza. PW Kashif Khan in his evidence has stated that he had not seen any Iqbal Plaza situated near Nagan Chowrangi. PW Mairaj Bano in her examination-in-chief has stated that from the male accused recoveries were made at the time of arrest which included the bunch of six keys and all the recovered properties including the ransom amount was sealed on the spot by the I.O. Bashir Ahmed, who obtained her signature on sealed packet. In cross-examination she admitted that the bunch of keys, recovered from the accused, was not sealed on the spot. I.O. Bashir Ahmed in his evidence has stated that he has recorded statement of PW Mairaj Bano. PW Mairaj Bano stated in her cross-examination that police recorded her statement in this case thrice.

         

The other intriguing factor that emerges from the evidence of I.O.Bashir Ahmed is that though he was informed that ransom amount of Rs. 40,000/- is to be paid, he took no steps for having the notes of ransom amount tainted or prepared their inventory. This was very necessary to establish that the ransom amount recovered from the accused is the same which was delivered by PW Mairaj Bano. Not having done so, it cannot be said with surety that the ransom amount recovered from the accused is the same which was delivered by PW Mairaj Bano.  

 

Besides above, no independent person was examined by the police who have gathered at the place of delivery of ransom amount and arrest of the accused and the I.O. remained contented in making the PW Mairaj Bano, PW Kashif Khan and not examined S.I. Ch.Manzoor Ahmed as Mashir of arrest and recovery. This was clear violation of section 103 Cr.P.C.

 

Over all assessment of above evidence looking at the factor that Tassaduq Ali Khan is not examined who has received first telephone call where demand for ransom of Rs. 20 lac was made, the other evidence produced by the prosecution does not prove the case of demand of ransom beyond reasonable doubt and to this extent the prosecution has failed to establish the fact of demand of ransom for release of abductee.

 

As regards the case of abduction of Dr. (H) Abdul Wahab Khan the direct evidence in this regard is that of Dr.(H) Abdul Wahab Khan himself who has narrated story of his abduction already mentioned above. The very fact that on 11.4.2007 when he received call of lady for performing circumcision of his son and the abductee said to her that he did not know her and needs time to think over it and on 12.4.2007 he agreed with the lady, he has went to Sindhi Hotel near Ameen Hotel where the lady approached him and boarded his motorcycle and they together went to lady’s house in Sector 5/E, North Karachi does not appear to be natural way of a doctor visiting the house of patient. It also seems strange that the abductee has agreed to meet the lady caller at a place away from her house and had traveled alone with unknown lady. Further important fact regarding abduction is that abductee has not alleged that any sort of arm was used by the accused against him and as it appears from his evidence that he simply allowed the accused to put him in chains in their house. It was a small house in a building having three portions; one below and another above in a thickly populated area also having shops. It seems very unnatural and very intriguing that alleged abductee did not make hue and cry to attract the people; more so, when the accused were totally unarmed even not a stick is stated to be with them and he has no reason to feel threat to his life at the hands of accused. At the same time it is also noted from the evidence of the abductee that his hands were chained meaning thereby he could have moved and walked around in the house. Further the abductee has also not stated in his evidence that he was constantly under vigilance of accused persons. PW Kashif Khan in the FIR has stated that he has tried to contact the abductee on his mobile telephone which was found to be switched off. The abductee in his evidence has stated that in the night of 13 & 14.4.2007 the male accused has snatched his mobile telephone. From 5:00 p.m. on 12.4.2007 until the midnight of 13-14.4.2007 mobile telephone remained with the abductee and the fact that it was snatched from the abductee means that he was carrying the same in his hand and as to why all this time the abductee did not even attempted to contact PW Mairaj Bano or PW Kashif Khan or any of his relatives informing them about his abduction and keeping him at the place is altogether not explainable; more-so when the very evidence does not show that he was under constant vigilance by accused. I.O. Bashir Ahmed in his evidence has stated that at the time of recovery of abductee, he was in semi-conscious condition. Mashirnama of recovery of abductee Exh:10/A does not say that the abductee was in semi-conscious condition. The abductee in his evidence has stated that on his release and removing of chains his son PW Kashif Khan brought him at home and police prepared memo of recovery/release from the captivity of accused. Had the abductee been in semi-conscious condition he would have not remembered the preparation of memo by the police and it also appear unnatural that abductee was not taken to the doctor/hospital rather he was taken to home by PW Kashif Khan. There is no medical report of the abductee suffering semi-conscious condition.

 

The abductee in his evidence has altogether denied knowledge about Faiz-e-Aam Medical Centre although he admits that he is owner of a house and shop built over Plot No. 1134 in Sector 4/A, Surjani Town, Karachi. PW Shabir Ahmed in his evidence stated that he was tenant of the abductee of one of the shops on Plot No. 1134 in Sector 4/A, Surjani Town, Karachi and that Faiz-e-Aam Medical Centre is located on the same very road on which the house and shops of abductee is located. PW Shabir Ahmed stated that he is a painter and knows accused Dr. Muhammad Abrar Younus as he has prepared the signboard of his clinic. PW Mairaj Bano in her evidence admitted that abductee used to visit his house in Surjani Town. The abductee in his evidence stated that he did not know anything about Faiz-e-Aam Medical Center and its location. He has denied the suggestion that he knew accused Huma who was an employee of Faiz-e-Aam clinic and that he has borrowed an amount of Rs.150,000/- from accused Huma for investment in his business. He has further denied the suggestion that he has knowledge about accused Huma having obtained divorce from her previous husband and he intended to marry her. He further denied the suggestion that on making of demand for return of loan by accused Huma and her marriage with Dr.Muhammad Abrar Younus he has implicated both accused in the false case. PW Shabir Ahmed in his evidence has stated that he has once seen Dr. (H) Abdul Wahab the abductee at the clinic of Dr. Muhammad Abrar Younus prior to the incident. This evidence of Shabir Ahmed has altogether demolished the case of prosecution that Dr. (H) Abdul Wahab Khan, the abductee, had no knowledge about clinic of Dr. Muhammad Abrar Younus rather the evidence of PW Shabir Ahmed who is neutral person goes to establish the fact that Dr. (H) Abdul Wahab Khan, the abductee had known previously not only the Faiz-e-Aam Clinic but also accused Dr. Muhammad Abrar Younus and accused Huma being employed in his clinic must have also been known to him.

 

The accused Dr.Muhammad Abrar Younus in his 342 Cr.P.C. statement denied as false prosecution evidence that Dr. (H) Abdul Wahab Khan was abducted by him and his wife accused Huma at their house and demand for ransom was made from PW Mairaj Bano, the wife of the abductee. He also denied as false that he and accused Huma were arrested while receiving the ransom amount and denied the fact of recovery of motorcycle of the abductee as well as surgical kit of abductee and denied that any offence was committed by him. He stated that Dr. (H) Abdul Wahab Khan, the abductee, has visiting terms with him and co-accused at Faiz-e-Aam Clinic, Sector 4/A, Surjani Town, Karachi and he intended to marry co-accused Huma but she rejected the abductee and contracted marriage with him; more over the abductee had borrowed 150,000/- from accused Huma who demanded return of said amount and on this count abductee was angry and SIP Ch.Manzoor Ahmed due to fight with his brother Ch. Nisar Ahmed and him at railway station Pcca Aana during Local Government Elections 2000 joined hands with abductee Dr. (H) Abdul Wahab Khan and they in collusion with police implicated him in the false case. This accused also denied ownership of recovered motorcycle Yamaha bearing registration No. OK-5678.

 

Accused Huma in her statement under Section 342 Cr.P.C. also stated similar facts as accused Dr. Muhammad Abrar Younus but did not say anything about the fight between Ch.Nisar Ahmed the brother of SIP Ch. Manzoor Ahmed with Dr. Muhammad Abrar Younus. The statement of accused made under section 342 Cr.P.C. to the extent that Dr. (H) Abdul Wahab Khan, the abductee was visiting Faiz-e-Aam Clinic of Dr. Muhammad Abrar Younus is supported the PW Shabir Ahmed and thus it cannot be said that Dr. (H) Abdul Wahab Khan, the abductee had no knowledge about Faiz-e-Aam Clinic or did not know Dr. Muhammad Abrar Younus and accused Huma. The establishing of the fact that Dr. (H)

Dr. (H) Abdul Wahab, the abductee  previously knew Dr. Muhammad Abrar Younus and Accused Huma could only led to conclusion that Dr. (H) Abdul Wahab the abductee had some thing against Dr. Muhammad Abrar Younus and accused Huma to falsely implicate them in the case of his abduction for ransom. During the whole of investigation I.O. Bashir Ahmed has prepared memo of inspection of the house where the abductee resided Exh: 6/A, memo of arrest of accused and seizure Exh: 6/B, memo regarding pointation of accused and seizure of motorcycle Exh: 7/A, pointation memo and seizure of medical kit Exh: 7/B, memo of recovery of abductee and inspection of place of abduction Exh: 10/A, pointation memo of place of abduction Exh: 13/F, seizure memo of Audio Cassette Exh: 13/G and seizure memo of mobile phone calls prints Exh: 13/J. In none of the above memos I.O. associated the persons of locality at which these memos were prepared rather I.O. has felt content in associating either complainant party or police officials as mashirs of these memos except Exh: 7/A memo of recovery of motorcycle of abductee which is also signed by PW Abdul Wajid and Exh: 7/B memo of recovery of medical kit which is also signed by PW Shabir Ahmed. This action of the I.O. was totally in contravention of the provisions of Section 103 Cr.P.C. and is not supported by the evidence of respectable inhabitant of the locality where the Mashirnamas are said to have been prepared.

 

Another factor, very glaring on the record is that though it is stated that Dr. (H) Abdul Wahab Khan was abducted and there were several telephonic conversations between the accused and PW Mairaj Bano in which the demand for ransom is said to have been made and PW Mairaj Bano having agreed to pay ransom amount of Rs.40,000/- with mobile telephone set and the place and time of delivery of ransom amount was also agreed but none of the prosecution witnesses in their evidence have uttered a single word that when and in what manner the abductee was to be released and handed over to the complainant party. Evidence in this regard is altogether silent and it does not appeal to mind that though the ransom amount is being paid but nothing is being agreed with regard to release of abductee. This one very grueling fact which is missing in the prosecution story makes the case of prosecution regarding abduction and demand for ransom altogether untenable.

 

Though surgical kit is stated to have been recovered from the house of Shabir Ahmed which has also been produced but the very abductee in his cross-examination has admitted the suggestion that the surgical kit is a common commodity and that recovery on pointation of accused Dr. Muhammad Abrar Younus, being Article P/7, does not carry any specific mark or description tending to show that the same belongs to him. PW Shabir Ahmed in his cross-examination admitted the suggestion that there is no specific mark/description on the surgical kit and bag (Article P/7) to establish that it was the same which belonged to victim and that it was taken from the bag by the accused and produced before the police. I.O. in this cross examination also admitted the suggestion that in memo Exh: 7/B he has not given details of instruments comprising the surgical kit of victim. He also admitted the suggestion that such like bag and instrument/kit are the common commodity and could be purchased from the market any time easily. Thus, the fact that the surgical kit did not had any mark on it to show that it specifically belonged to abductee, takes away the very utility of this evidence for establishing the fact of recovery of surgical kit. There only remains evidence of recovery of a motorcycle from Rajput Milk Shop. This piece of evidence though may be in the nature of corroboration, it in itself will not establish the fact of abduction and demanding ransom for release of abductee.

 

For giving benefit of doubt it is not necessary that there should be many circumstances creating doubts. A single circumstance creating reasonable doubt in a prudent mind about guilt of accused makes him entitled to its benefit, not as matter of grace and concession but as a matter of right. Reference in this regard is made to the case of TARIQ PERVEZ V/S THE STATE (1995 SCMR 1345) and MUHAMMAD AKRAM V/S THE STATE (2009 SCMR 230).

 

As discussed above, there being evidence that the abductee having known the accused party prior to the incident, this very fact in itself establish some motive to the complaint party to implicate accused in the case and, therefore, it cannot be said that evidence of prosecution witnesses are altogether impartial. Thus, the case law relied upon by the learned DPG apparently has no application to the facts and circumstances of the present case.

 

In view of the above discussion, we are satisfied that the prosecution has not been able to prove the case of abduction of Dr. (H) Abdul Wahab Khan and making of demand and payment of ransom for his release beyond reasonable doubt and appellants are entitled to grant of benefit of doubt. We, therefore, allow both these jail appeals, set aside the impugned judgment and direct that appellants be released forthwith if not required in any other case.

 

Both these jail appeals in the above terms stand disposed off.

 

          Office is directed to send a certified copy of this judgment immediately to the Karachi Registry of Hon’ble Supreme Court of Pakistan.

 

 

J U D G E

 

 

                     J U D G E