' 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 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 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 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 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; ' 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 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 longest term of imprisonment provided for the offence, or with fine, or with both.
"Offence" in this section includes any act committed at any place out of Pakistan, which, if committed in Pakistan, would be punishable under any of the following sections, namely,, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459, and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in Pakistan.
' Exception. This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender."
"21J. Harbouring.---(1) A person commits an offence if he harbours any person who has committed an offence under this Act.
(2) A person guilty of an offence under subsection (1) shall be liable on conviction to punishment as provided in sections 216 and 216A of the Pakistan Penal Code (Act XLV of 1860). District Superintendent of Police."
19. The word 'harbour' has not been defined under the Act, 1997 but the same has been defined under section 52-A of P.P.C., that reads as under:-- "52-A. "Harbour".---Except in section 157, and in section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word "harbour" includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the same by any means, whether of the same section or not, to evade apprehension."
20. From the definition of word 'harbour' it is clear that the instances of harbour mentioned in section 52-A shall be for assisting a person in any manner and shall be done with intention to evade the apprehension of person who is harboured. The perusal of other' provision of law reveals that main ingredients for proving the case are (i) that an offence was committed by the offender that is the person harboured; (ii) such offence was either punishable with death or imprisonment for life or imprisonment with other terms of punishment; (iii) that the accused harboured or concealed the offender knowing or having reason to believe that he committed the offence and
(iv) that the accused thereby intended to screen the offender.
21. In order to prove the first ingredient, the prosecution has produced the copies of F.I.Rs. Nos.179 of 2004 and 165 of 2004 which show that offence of F.I.R. No.179 of 2004 was committed on 19-3-2004 whereas offence of F.I.R. No.165 of 2004 was committed on 10-6-2004. The said F.I.Rs. Were lodged for offences punishable under section 302 and other offences, as such, the said offences were carrying death penalty. The crucial point in this case is the proof of third ingredient i.e. As to whether the appellants knew or had reason to believe that the person allegedly harboured had committed the offence. For both the appellants different allegations have been levelled.
22. As regards appellant No.1 the allegation is that he harboured Shahzad Bajwa, who is allegedly involved in Crime No.179 of 2004. The copy of F.I.R. Exh.82 reveals that offence took place on 19-3- 2004 at 3-40 p.m. It is alleged that Shahzad Bajwa reached Bismillah Hospital at about 4-00 p.m.
As per P.W.4 whereas according to P.Ws. 1 and 2 he reached the hospital at about 4-00 or 5-00 p.m.
The incident took place at the bridge of Baloch Colony whereas Bismillah Hospital is situated at NIPA Chowrangi, Gulshan-eIqbal, therefore, it would have not been possible for Shahzad Bajwa to reach hospital at 4-00 p.m. Within 10 minutes. However, he could have reached the hospital in between 4-00 p.m. And 5-00 p.m. The question involved in the case is whether the appellant No.1 knew that offence of Crime No.179 of 2004 was committed. The prosecution did not lead any evidence to prove the above fact as the prosecution did not examine any witness to show that appellant knew that above offence was committed. On the contrary, the F.I.R. Of Crime No.179 of 2004 Exh.82 shows that even the police did not have the information of the commission of said offence upto 5-00 p.m. Or before 8-15 p.m. As the F.I.R. Was lodged on 19-3-2004 at 8-15 p.m. Mere commission of offence would not ipso facto prove the fact that the appellant No.1 knew that the offence was committed unless a positive evidence in this regard is led by the prosecution so as to attract the ingredients of above offence. Further, the prosecution was required to prove that at the relevant time the appellant knew that Shahzad Bajwa had committed the offence of crime of F.I.R.
No.179 of 2004. No evidence was pointed out by the learned Special Prosecutor on the above point.
On the contrary, on 19-3-2004 nobody knew as to who committed such offence as F.I.R. No.179 of 2004 was lodged against unknown persons and police came to know about the offenders after the arrest of accused Shahzad Bajwa who allegedly confessed on 30-6-2004 that he was the offender of the crime. Thus the police also came to know about the said fact on 30-6-2004, which was much after the incident. The above facts have brought on the record by the prosecution themselves. Therefore, there is no evidence on the record led by the prosecution to prove that the appellants had knowledge that above offence was committed on 19-3-2004 at 3-40 p.m. By Shahzad Bajwa so as to attract the provisions of above offence in respect of appellant No. 1.
23. As regards the case against appellant No.2, the prosecution alleged that Muhammad Qasim accused involved in Crime No.165 of 2004 was allegedly treated by the appellant No.2. The F.I.R. Of said crime has been produced as Exh.83 which shows that the incident took place on 10-6-2004 at 2-45 p.m. And the F.I.R. Was lodged on the same date at 5-30 p.m. The learned Special Prosecutor was asked to point out any evidence as to on what date and time the appellant No.2 allegedly gave treatment to Muhammad Qasim to which he failed to point out any evidence except the statement of the appellant No.2 before the police officer which he allegedly gave at the time of pointing a bed in the house. The said statement of appellant No.2 was made during the period when he was in police custody and such statement would come within the ambit of confession, as such, under Article 38 of Qanun-e-Shahadat Order, 1984 the said statement is inadmissible, hence it cannot be treated as evidence in the case. However, learned Special Prosecutor has conceded that apart from the said statement there is no other evidence led by the prosecution to show that the appellant No.2 had knowledge of the commission of the Crime No.165 of 2004. As such, the main ingredients of the offence in respect of appellant No.2 have also not been established by the prosecution.
24. As regards other ingredient of offence that the appellants in allegedly harbouring the accused involved in the Crimes Nos.179 of 2004 and 165 of 2004 had done so with intention to screen the offenders of the said crimes. The prosecution have also not led any evidence on the said point nor the learned Special Prosecutor could show any such evidence. Furthermore, the above two F.I.Rs.
Were lodged against unknown persons. The prosecution was required to prove that Shahzad Bajwa and Muhammad Qasim were the offenders of said F.I.Rs. At the time of alleged harbour and that the appellants knew that they had committed the offence. It is pointed out that even police did not know that the said persons were offenders of the above mentioned F.I.Rs. On the day when the appellants allegedly provided them medical help, but the police came to know such fact after the arrest of accused persons. Hence the prosecution has failed to prove the main ingredients of the above mentioned offence.
25. As regards the recovery of car from the possession of the appellants, which was allegedly rented out to Shahzad Bajwa, in this connection it is pointed out that the case of the appellants is that they were taken away by some agency people on 17-6-2004. The father of the complainant Hafiz Waheeduddin Khan lodged the report of missing of the appellants on 18-6-2004 at 2-00 p.m.
And thereafter some of the doctors took up the matter, where after several processions and protests were lodged in that respect. Thus, there is counter-version on the same point. If the theory advanced by the appellants about their missing from 17-6-2004 is accepted then the recovery of the car, in the circumstances mentioned by the prosecution, appears to be highly doubtful." Even otherwise mere recovery of car would not attract the provisions of the offences under which the appellants have been convicted by the trial Court. According to P.W.6 Matiur Rahman, owner of Orient Rent-A-Car, the car was given on rent on 26-5-2004 and the car was not returned for a long period though he could have lodged a report but no such report or complaint was made. Thus, the said piece of evidence would not help the prosecution in any manner.
26. The learned Special Prosecutor has argued that the appellant No.1 was involved in treating the offenders of Crime No.179 of 2004, in this connection he has referred to the evidence of P. Ws. 1 to 4.
All these witnesses are employees of Bismillah Hospital. The evidence of P.W.1 Dr. Rehana reveals that she was Resident Medical Officer at the said hospital and she was performing the duty in the hospital on that date. Her senior Dr. Saqib, P.W.3 referred her a patient having head injury which was a superficial with direction that the patient should be given proper treatment. She referred the patient for dressing to P.W.2. The said patient had disclosed his name as "Abdullah" who was subsequently found to be Shahzad Bajwa. P.W.2 Abdul Razzak was Nurse Aid in the hospital. His evidence reveals that on 19-3-2004 at 4-00 or 5-00 p.m. P.W.1 Dr. Rehana examined a patient in his presence and she told him to dress the patient which he did. The patient had head injury and then the said patient was referred for X-Ray. The said patient's name was "Abdullah" who was subsequently found to be Shahzad Bajwa. P.W.3 Dr. Saqib deposed that in the month of March, 2004 there was conference in the hospital in which well-known doctors had participated. The conference was to be held in Hotel Pearl Continental but the doctors were collected in Bismillah Hospital for making necessary arrangements. He was busy in the arrangements of the conference and was also attending the patients. During the preparation and arrangements of the conference the appellant No.1 met with him in the hospital, at that time he was going to attend a patient but the appellant No.1 informed him that the patient, which he was going to attend, was known to him, therefore, he should take good care of him. Thereafter he went to emergency ward where the said patient was being attended to by Dr. Rehana. On inquiry Dr. Rehana informed him that the patient was not serious as he had suffered injury because of fall from motorcycle and that she was attending him properly. After hearing such facts he was satisfied and then returned. Subsequently, the police showed him a photograph of a person but initially he did not recognize the person of the said photograph. He, then was produced before a Magistrate to identify a person whose photograph was shown to him and he identified the said person to be the person whose photograph was shown to him by the police, he was Shahzad Bajwa. The witness was declared hostile by the prosecutor. He was cross-examined in which he admitted that he had identified the person in the identification test whose photograph was shown to him by the police and that was the same person who was referred by him to Dr. Rehana. P.W.4 Syed Ali Murtaza was X-Ray Technician in Bismillah Hospital. His evidence shows that on 19-3-2004 at about 3-00 or 4-00 p.m.
He received the patient by the name of "Abdullah" who was subsequently known to be Shahzad Bajwa for X-Ray as the patient was referred to him by Dr. Rehana.
27. From the above evidence of all the four witnesses except the evidence of Dr. Saqib P.W. 3 the evidence of other three witnesses is not on the direct point as the patient was not received by them through appellant No.
1. It was P.W.3 who stated that patient was received through appellant No.1 but this witness was declared hostile by the prosecution. As the witness was declared hostile, therefore, the learned Advocate for the appellants argued that his entire evidence is to be taken out of consideration and relied upon a case of Prasanna Deb's case (AIR 1946 PC 47). He had also referred to Habibur Rehman Khan's case (PLD 1989 SC 20) in which it was observed that no importance can be attached to a hostile witness. However, subsequently the Honourable Supreme Court of Pakistan. In the cases of The State v. Abdul Ghaffar (1996 SCM R 678) and Zarid Khan's case (1972 SCM R 597) observed that the evidence of a hostile witness is not to be left out of consideration but entire evidence of such witness is to be examined and to see as to which part is to be relied upon but his evidence requires corroboration.
28. Keeping in view the rule laid down by the Honourable Supreme Court of Pakistan for assessing the evidence of hostile witness' we have examined his evidence with the evidence of other witnesses to see whether or not the evidence of P.W.3 has been corroborated. From the evidence of P.W.3 the presence of appellant No.1 has been shown in the hospital on the ground that there was a conference which was to be held in the Hotel Pearl Continental and the doctors had assembled in the hospital for making necessary arrangements and during the period appellant No.1 met with him. There is no evidence on the record from any of the witnesses of Bismillah Hospital that doctors had assembled in Bismillalt Hospital for the arrangement or preparation of conference. It was a big event, therefore, the employees and doctors working in the hospital would have come to know about the assembly of large number of various doctors but none of these witnesses viz. P.Ws. 1, 2 and 4 deposed that doctors from various hospitals had assembled in Bismillah Hospital. Secondly, P.W.3 disclosed that appellant No.1 told him that the patient which he was going to visit was to be looked after properly. From thig admission it is clear that the P.W.3 was already going to examine the patient which was allegedly recommended by appellant No.1, hence the patient was already admitted in the hospital and was being looked after by the doctor. However, there is no evidence that anybody had seen appellant No.1 talking with P.W.3. Thus, on the point that appellant No.1 met or talked to P.W.3 has not been corroborated by any piece of evidence available on the record. The evidence of P.W.3 further reveals that when he went to the emergency ward the said patient was being attended to by Dr. Rehana P.W.1. This piece of evidence is also not corroborated by P.W.1 as she did not state that she was already attending the patient. His evidence further reveals that on his inquiry P.W.1 informed him that the patient was not serious and he had suffered injury because of fall from the motorcycle and that she was attending him properly. From the above statements it is manifest that the patient was already admitted and was under treatment of Dr. Rehana. She had already examined him and found that the injury was not serious and she informed P.W.3 that the patient had received injury from the fall of motorcycle but P.W.1 did not state so. His evidence further reveals that after hearing the reply of P.W.1 he was satisfied and then returned. Such piece of statement is also not corroborated by P.W.1.
29. From the above position it is clear that the evidence of P.W.3 has neither been supported nor corroborated by any piece of evidence so as to attract the rule laid down by the Honourable Supreme Court of Pakistan in the above mentioned authorities for assessing and appreciating the evidence of a hostile witness. Thus, his evidence cannot be safely relied upon. If his evidence is taken out of consideration then there is nothing on the record which can show that the appellant No.1 got treated Shahzad Bajwa in the hospital or any treatment was given to him under his instructions. There is also no evidence on the record to show that the appellant No.1 had brought Shahzad Bajwa in the hospital or anybody had seen the appellant No.1 with Shahzad Bajwa in the hospital or they were together before, during or after the treatment.
30. As regards the name supplied by Shahzad Bajwa as "Abdullah" in the hospital, suffice it to say that it was not the appellant No.1, who gave a fictitious name of the patient but it was the patient himself who gave his name and the record was prepared on his information and not on the information supplied by the appellant No.l. As such, the appellant No.1 cannot be saddled with the said responsibility.
31. The allegation against the appellant No.2 is that he gave treatment to Muhammad Qasim involved in Crime No.165 of 2004 in a house which subsequently pointed out by him. In this 'connection the prosecution led evidence of three witnesses viz. P.W.13 Muhammad Jamil, Investigating Officer; P.W.8 P.C. Ali Raza; and P.W.10 Photographer Abbas Feroz Hassan. The evidence of P.W.13 reveals that during interrogation the appellant No.2, who was in custody, led to a house and pointed a bed inside a room of the said house by disclosing that he had treated Muhammad Qasim on the said bed. P.W.8, being the Mashir, supported P.W.13 and P.W.10, being the Photographer, supported them that he took the photographs which have been produced in the evidence. As regards the statement of the appellant No.2, in custody before a police officer that he had treated Muhammad Qasim on the bed comes within the definition of confession which is inadmissible in evidence under Article 38 of Qanun-e-Shahadat Order, 1984. Therefore, the said portion of his statement has to be excluded from consideration. There remains only the evidence of pointing towards a bed by the appellant No.2. Nothing was secured from the bed or from the room.
As such, there was no discovery from the said place. Merely, pointing to a place would not come within the ambit of discovery as provided under Article 40 of Qanun-e-Shahadat Order, 1984.
Reference is invited to Naeem Akhtar v. Shate (1993 PCr.LJ 769) and Muhammad Ramzan v. State (PLD 1957 (W.P.) Lahore 956) in which the Full Bench of Shariat Bench has held that if the accused pointed only to a place then it would not come within the scope of Article 40. The learned Special Prosecutor was inquired as to whether there was any other evidence on the above point to which he replied in negative. As such, merely pointing towards a bed is not enough to prove the allegation levelled by the prosecution against the appellant No.2. As such, this piece of evidence has also not been proved against the appellants.
32. The Special Prosecutor has relied upon the confessions of Shahzad Bajwa and Ataur Rahman recorded in F.I.Rs. Nos. 179 of 2004 and 165 of 2004 respectively. The Photostat copies of the confessions have been produced by P.W.12 Rajab Ali. Judicial Magistrate. The learned Advocate for the appellants has raised objection that the allegation against the appellants is only mentioned in the last lines of the confessions which were subsequently added in them so as to involve the appellants in this case.
33. It is an admitted position that both these confessions have been recorded in other crimes which are not the subject-matter of this appeal. The said cases are pending adjudication before the competent Courts of law in which the value of the confessions are to be examined. It will not be proper for this Court at this stage to make any comments on the said confessions as it might prejudice the case of the parties. However, it is admitted fact that Shahzad Bajwa and Ataur Rahman were not tried with the appellants in this crime. If the prosecution wanted to use the confessions of Shahzad Bajwa and Ataur Rahman in this case then they could have examined them as witnesses in the case so as to prove the allegation made in these confessions but the prosecution did not examine them as witnesses apparently for the reason that they retracted from confessions as stated by the learned Advocate for the appellants and confirmed by the Special Prosecutor. However, a confession of an accused can be used against co-accused if they are being tried together for one and same offence as provided under Article 43 of Qanun-e-Shahadat Order, 1984, that reads as under:-- "43. Consideration of proved confession affecting person making it and others jointly under trial for same offence.---When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved.--
(a) such confession shall be proof against the person; making it; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person. Explanation.--"Offence", as used in this Article, included the abetment of or attempt to commit, the offence."
34. Shahzad Bajwa and Ataur Rahman were not tried together with the appellants, therefore, the allegation made by them in the confessions cannot be used as circumstantial evidence against the appellants. Therefore, the said confessional statements carry no weight at all in this case.
35. The learned Special Prosecutor has emphasized upon the statements (Exhs.58 and 59) made by the appellants before the police officers which were made by them during the interrogation while the offence of Crime No.179 of 2004 was being investigated. Admittedly, these statements were made by the appellants when they were in police custody in that case. Such statements cannot be used in any manner in view of provisions of section 162, Cr.P.C. Or Article 38 of Qanun-e- Shahadat Order, 1984 as the statements disclose commission of offence. Thus, these statements have no evidentiary value and cannot be relied upon.
36. As regards the identification test of Shahzad Bajwa through P.Ws. 1 to 3, suffice it to say that the police had shown the photographs of Shahzad Bajwa to the P.Ws. 1 to 3 in the hospital and after confirming his identity, Shahzad Bajwa was put to identification test supervised by the Magistrate.
Such identification test hardly carries any weight, as it does not eulfil the requirements of law for the simple reason that the witnesses had seen the face of the person through his photograph before his identification test. Reference is invited to Muhammad Aslam v. State (2006 SCM R 198).
37. As regards the defence taken by the appellants they have examined 12 witnesses, majority of the witnesses are in respect of protest lodged by some doctors and such news published in the newspapers. It is well-settled principle of law that prosecution is required to prove the case against the accused beyond reasonable doubt and then the defence can be examined in juxta-position with the prosecution case. However, the weakness in defence, if any, would not be taken adversely against the accused persons. Without making further comments on the defence of the appellants we are of the considered view that the prosecution has failed to prove the case against the appellants, therefore, we do not find any justification to examine the defence of the appellants in detail.
38. In the light of what has been discussed above, we are of the considered view that the prosecution has miserably failed to prove the case against the appellants, therefore, the conviction and sentence awarded to the appellants under the impugned judgment are set aside. The appellants are acquitted and set at liberty. The appellants are in custody. They should be released forthwith if not required in any other custody case. The appeal is allowed.