' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Special Anti-Terrorism Appeals Nos.69 of 2002 to 71 of 2002, 75 of 2002 and Special Acquittal Appeal No,73 of 2002 as they arise out of a common judgment.
2. Brief facts giving rise to the present appeals are that on 17-1-2000 the complainant Abdul Razaq lodged F.I.R. On the information supplied to him by Muhammad Ilyas (P.W.3) who informed the complainant that on the said date he along with abductee Muhammad Rafiq (P.W.5) were going in a car bearing Registration No,V-0901 to their office situated at New Challi Campbell Street. At about 11-00 a.m. They reached near Dada Bhai Chorangi near Peoples House, a car having G.S. Number plate intercepted their car in which four persons were sitting. Out of them, three persons came and took Muhammad Rafiq (P.W.5) with them and made him sit in their car whereas one person sat in his (P.W.3) car. On inquiries, the person who sat with P.W.3 disclosed to him that they were making some inquiry against them. When the car reached at Aisha Manzil, P.W.3 was allowed to go alone whereas P.W.5 was abducted by the said four persons. Later on the culprits ordered P.W.5 to talk to P.W.3 on the mobile phone No,0300-253065 to pay the ransom amount otherwise they, would kill the abductee.
3. The police recorded the said F.I.R. And sealed it. However, the police started investigation after desealing it on 22-2-2000. On the next day viz. 18-1-2000, the abductee P.W.5 returned to his house in a rickshaw. He was tired and sleepy, therefore, he went to sleep. On the next day of the arrival of the P.W.5 he informed the complainant and P.W.4 and other persons that he had been released by the culprits on the promise of paying Rs,15,00,000 to them as a ransom within a period of one month. He further informed them that the abductors had threatened him not to disclose the facts to police or CPLC.
4. After return of the abductee, the police contacted him for recording his 161, Cr.P.C. Statement but he refused to give the said statement. The police also did not record the statement of P.W.3 during this period. In the meanwhile on 19-2-2000, the complainant and P.W.3 went out of Pakistan to perform Hajj. On 22-2-2000 the F.I.R. Was desealed. On 26-2-2000 the abductee (P.W.5) showed the place of incident to the police. The police recorded the statement of P.W.5 in respect of showing the place of incident. On 27-2-2000, the appellant were arrested except Saleem Memon. They were put in identification test before a Magistrate through P.W.5 where he identified the appellants to be the culprits. On 14-3-2000 police submitted the challan against the appellants showing Saleem Memon as absconder. The acquitted accused Saleem Memon was also arrested.. On 28-3-2000, the complainant and P.W.3 returned to Pakistan after performing Hajj. On 29-3-2000, the complainant party allowed the police to record their statements. Therefore, on the said date the police recorded the statements of P.W.3 and P.W.5 about the incident of abduction.
5. On 27-6-2002, the learned Judge, Anti-Terrorism Court-II, framed the charge against the appellants. In support of the case the prosecution examined 13 witnesses. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellants in their further statements stated as under:--
(1) Appellant Dr. Khalid Mom "I was working as Deputy Medical Superintendent, Abbasi Shaheed Hospital, and incharge of Medical Aid Committee MQM Mutehida (Altaf Group). This being important I was also provided official police guard. Budget of Rs,22 crore was at my disposal for purchasing medicines and medical equipment, purchase of Ambulance, maintenance of Hospital and purchasing of stores etc. In the month of October, 1999, Saleem TanOli came to me with 2/3 persons along with so- called abductee Rafiq Memon, with problem of Chanda and to resolve the same. I was told that my persons of MQM belonged to PIB Colony demanded Chanda and harass so-called abductee. I investigated their complaint and reverted back and re-held committee meeting and I told Union that the said persons of PIB Colony are defaming MQM and then they are not my persons. So- called Rafiq Memon insisted that those persons are my persons and I demanded Chanda through them and consequently, it burst to hot talk and at that time Rafiq Memon threatened that he will see to it and teach me lesson. On 19-2-2002 there was MQM strike at the request of my Qaid Sayed Altaf Hussain and I was arrested and false cases of Arms Ordinance were registered and kept at Mubina Town Police Station from where my custody was taken by ACLC, even before transfer of further investigation in Crime No,10 of 2000, where so-called abductee Rafiq Memon was called by Inspector Hafeez Junejo Investigating Officer of this case, where so-called abductee Rafiq Memon after seeing me said that he is same person and his personal men of MQM were extorting Chanda and harassing and both Investigating Officer and Rafiq Memon said that it was right time to take revenge by taking advantage of situation. In .Case if I have any interest of need of taking money it was very easy for me to take'benefit of my official position and would have taken funds from the budget of the hospital by mixing with contractors of the hospital, and I have not done so. It is matter of record that contractors of Abbasi Shaheed Hospital became hostile and inimical as I had stopped their false and manufactured bills. I am victim of the circumstances and so-called revenge of the so-called abductee as I have also never indulged in demanding Chanda. I am son of the very famous Dr. Who served in Pakistan Army and then was sent to Iran on deputation where I was educated and for purpose of doing M.B.,B.S., I came to Pakistan. My humbleness and competency is known to everybody who has been treated by me. Earning of my father, house, plots and Defence Saving Certificates were purchased in my name, my sister and my father's name, which after maturing date were re-invested and one plot was also sold by my father as I remember in 1990 I sold and invested and re-invested in purchasing Defence Saving Certificate.
The purpose of purchasing and repurchasing of Defence Saving Certificates was desire of my father to build a free hospital for the needy people. My father is very old and my two sisters and one brother are mentally retarded and I am the only person maintaining them. My father never charged more than Rs,10 from a patient including consultations and medicine, his humbleness and humanity is known to everybody in the area. I being such a respectable person and officer of Grade-18 cannot imagine and think to commit any unlawful act of alleged abduction. I am peaceful and law abiding citizen and providing all my medical services to general public to the best of my abilities and capabilities I may kindly be provided justice."
(2) Appellant Saleem Khan Tanoli "Yes Sir, in October, 1999, the alleged abductee Rafiq Memon and Illyas came to my house with reference of Peoples Party Workers and stated that some MQM people of PIB Unit were demanding Chanda from them. They asked me to get them out of this problem. I contacted Dr. Khalid Moin who was Incharge of Abbasi Shaheed Hospital and was also an office-bearer of MQM. Then I managed the meeting between Rafiq Memon and Illyas, myself and Dr. Khalid Moin in the Abbasi Shaheed Hospital, while co-accused Altaf Hussain was also with me. In that meeting Rafiq Memon and Illyas told Dr. Khalid Moin that we are paying the Chanda to MQM through their Memon Association and this is wrong that people of PIB Unit are directly asking for Chanda from us. Dr. Khalid Moin during this meeting enquired from the PIB Unit of MQM regarding the complaint of Chanda. Then Dr. Khalid Moin told Rafiq Memon and Illyas that no one from PIB Unit had demanded Chanda from them and that they were free to lodge F.I.R. The persons who were demanding the Chanda and that they were not belonging to the MQM. On this Rafiq and Ilyas got annoyed and exchanged hot talks with Dr. Khalid and said that they will see him. At that time co-accused Salimuddin was the official police guard of Dr. Khalid Moin and during the above hot talk, he asked Rafiq Memon to get out of room of Dr. Khalid, as I used to reside in District Central, I look after the affairs of the People's Party Workers of the District Central, and I used to submit the complaints in connection with disputes with MQM people to the Head Office of the MQM or to any other office- bearer of the MQM for the purpose of peaceful running of the Party's affairs. Above F.I.R. Is the false F.I.R. I. Do not know anything about the incident stated in the F.I.R. I believe that Rafiq and Illyas have taken revenge of Chanda incident and implicated me in the false case."
(3) Respondent Saleem Memon "Sir, my statement is same as that of co-accused Salim Tanoli and further say that I am active worker of Peoples Party and I am working under Saleem Tanoli in my District Central, Unit Office. I have been falsely implicated in this case in revenge of above said Chanda dispute. I am innocent."
(4) Appellant Saleemuddin "Sir, my statement is same as that of co-accused Salim Tanoli. I further state that in November, 1999, I reported back to duty in police line District Central and deposited my SMG in the office as I was called back from the official Guard Duty of Dr. Khalid Moin. P.C. Malik Sher Afzal B.No,4366 was posted in my place as official Police Guard of Dr. Khalid Moin. On 17-1-2000, I was on duty in Police Line District Central. The record of my duty is available in the case file of Crime No,50 of 2000 of Police Station North Nazimabad. The above F.I.R. Is a false F.I.R. As I believe it was not in the knowledge of alleged abductee Rafiq Memon and Illyas that I had been removed as official guard of Khalid Moin in November, 1999."
(5) Appellant Muhammad Altaf Hussain "Sir, my statement is same as that of co-accused Salim Tanoli and further say that I am active worker of People's Party and I am working for Saleem Tanoli in my District Central Unit Office. I have been falsely implicated in this case in revenge of above said Chanda dispute. I am innocent.
6. The accused Saleem Memon examined D.W. Muhammad Yousuf. He produced certain documents. The appellants and accused Saleem Memon did not examine themselves on oath. The appellants also did not examine any witness in their defence.
7. After considering the evidence and hearing the parties counsel, the learned trial Judge acquitted the accused Saleem Memon whereas convicted the appellants for offences punishable under sections 365-A, 34, P.P.C. Read with section 6(2)(e) of Anti-Terrorism Act, 1997 and sentenced each of them to suffer imprisonment for life and forfeited their properties. However, they were given benefit of section 382-B, Cr.P.C.
8. The appellants were dissatisfied with the said judgment, therefore, they have filed the present appeals whereas the State was dissatisfied with the judgment of acquittal of accused Saleem Memon, therefore, they have filed Acquittal Appeal No,73 of 2002.
9. We have heard the Advocates for the appellants, acquitted accused Saleem Memon, complainant, A.A.-G. For the State and perused the record of this case very carefully.
10. The learned Advocates for the appellants and Saleem Memon have contended that the case of the prosecution rests upon the evidence of two witnesses viz. Abductee P.W.5 and eye-witness P.W.4; that their evidence is contradictory to each other, full of exaggerations and improvements, therefore, their evidence cannot be relied upon; that the statements under section 161; Cr.P.C. Of these witnesses were recorded after more than 2-1/2 months without furnishing any explanation, therefore, their evidence is untrustworthy. They have relied upon the cases of Muhammad Khan v.
Moula Bakhsh 1998 SCMR 570; Muhammad Sadiq v. State PLD 1960 SC 223; Qabil Shah v. State PLD 1960(?) Kar. 697; Jalal v. State PLJ 1974 Cr.C. (Kar. 244; Saeed Muhammad Shah v. State 1993 SCMR 550; Asfandyar Wali v. State PLD 1978 Pesh. 38; Muhammad Rafiq v. State 1974 PCr.LJ 391 and Aamir v. State 1968 Lah.
49.
11. They have further stated that the identification test is not a substantive piece of evidence and the conviction cannot be based solely on the said evidence as it is a corroborative piece of evidence; that-the identification test is doubtful as only few dummies were changed at the time of identification of each accused; that the prosecution has relied upon recovery of mobile phone from the possession of appellant Dr. Khalid Moin but the said evidence has also not been proved in accordance with law, therefore, they have prayed for the acquittal of the appellants.
12. Conversely the learned A.A.-G. And Advocate for the complainant have stated that the prosecution case rests upon; (1) ocular testimony consists of abductee P.W.5, corroborated by P.W.3 and the complainant, (2) identification test; and (3) recovery of mobile phone from the possession of appellant Dr. Khalid Moin. They have stated that all the pieces of evidence have been proved in accordance with law.
13. First of all we will take up the ocular testimony which consists of abductee P.W.5 and eye- witness P.W.3 corroborated by complainant. The evidence of P.W.5 and P.W.3 reveals that on 17-1- 2000 they left their house at 10-45 a.m. In their car. At about 11-00 a.m. They reached near Dada Bhai Chorangi where a car having G.S. Number plate intercepted them. Out of them two person, one was in police uniform, came to them. They also alighted from the car. The person who was in police uniform was subsequently identified to be appellant Muhammad Altaf. The said appellant told P.W.3 that P.W.5 was required in any inquiry; therefore, they took him and made him sit in their car having G.S. Number plate whereas appellant Altaf sat with P.W.3. Both the cars proceeded further, when they reached Yasinabad Chorangi near two Marriage Halls, PW.3 was allowed to go whereas, P.W.5 was taken away with direction to P.W.3 that they would contact him on his phone and obtained his phone number. This is the basic story of abduction.
14. P.W.5 took the story further by alleging that in the car he was blindfolded with black tape and he was made to wear dark glasses. Then he was taken to a house where his hands were tied and he was being tortured and demand of Rs,400,00,000 was made but he told them that he had no money. He was made to talk to P.W.3 on phone and told him that they should pay Rs,400,00,000 to abductors. However, on the next day at about 5-00 p.m. He (P.W.5) was released on a promise that he would pay Rs,15,00,000 within a period of one month with threats that he should not disclose the facts to police or CPLC people. He, returned to his house and went to sleep because he was given some injections. On the next date he informed the complainant and P.W.3 that the culprits had released him on the promise of payment of Rs,15,00,000 within one month. He also informed them that the accused had threatened him not to disclose the facts to police or CPLC.
15. We have gone through the evidence of all the 'three witnesses and found that the basic story has been enlarged to such an extent that the examination-in-chief of P.W.1 complainant spread into 3-1/2 pages. He gave all the details which occurred in the office when he reached in the office of P.W.3 on the telephone call received from one Yousuf Bhai who was also present in the office.
Several questions were asked from this witness that the details mentioned by him in his deposition were not disclosed by him in the F.I.R. He admitted that such facts were not disclosed by him in the F.I.R.
16. It is pertinent to point out that according to the complainant; he received information on 17-1- 2000 at about 12-10 noon, which was conveyed to him by one Yousuf Bhai. He along with P.W.
Pervez went to the office of P.W.3 where he remained up to 3-15 p.m. He gave the details of various conversations took place between him and acquitted accused Saleem Memon and other persons viz. Yousuf Bhai, Rafiq Bhai and Muhammad Illayas (P.W.3). He also gave the details of various telephone calls received by P.W.3 allegedly made by the culprits and then went to police station for lodging the report. In spite of knowledge of all the facts he did not disclose these facts in the F.I.R.
He admitted that such facts were not disclosed by him in the F.I.R. Such portions of the statements are improvements in the evidence. We are conscious of the fact that it is not necessary that all the details should be given in the F.I.R. But at least major and important points are required to be mentioned in the F.I.R. But the complainant did not do so. From these improvements it appears that the improvements have been made in order to make the evidence in accord with the evidence of P.W.3 who had ample opportunity to consult with the complainant and others so as to fit in the circumstances of the case. The Honourable Supreme Court of Pakistan examined this question in the case of Shahbaz Khan Jakhrani v. Lal Beg Jakhrani 1984 SCMR 42. In that case the witnesses improved their oral evidence so as to make in accord ocular testimony with medical evidence, therefore, such evidence was held to be causing serious doubt about veracity of such witness. In the case of Sayed Saeed Muhammad Shah v. State 1993 SCMR 550 improvements in statement made by witness in the Court to strengthen the prosecution case was held to be not worthy of reliance. Thus, the improvements made by the witness in his evidence are not worthy of reliance, as such, they affect his credibility.
17. The Honourable Supreme Court of Pakistan in the case of Liaqat Ali v. State 1992 SCMR 372; has observed that when a witness is partly disbelieved, though he is not an interested witness rule of prudence demands that testimony should not be made a sole basis of conviction without corroboration by some other reliable evidence or circumstances. The complainant has been examined to corroborate the statement of P.W.3 as the F.I.R. Was lodged on the information supplied to him by P.W.3. The P.W.3 in his statement Exh.33 stated that immediately after return from the place of incident he narrated the whole incident to Yousuf Bhai and Majeed Bhai, but surprisingly none of them has been examined to support and corroborate the P.W.3. However, he further stated that when complainant came to his office at that time he came to know that P.W.5 was abducted as he received telephone call from culprits who demanded ransom amount of Rs,5,00,00,000 for his release. He simply informed Razaq Bhai, the complainant and P.W. Pervez Bhai 'that:- Rafiq Bhai had been kidnapped". He did not state that he disclosed any other facts to Razaq Bhai about the incident or details of the incident, as such, the statement of the complainant with regard to details of abduction are coming within the ambit of hearsay evidence which is inadmissible under the Qanun-eShahadat Order, 1984.
18. His further statement with regard to other details which he mentioned in his examination-in- chief, which is spread into 3-1/2 pages, the defence counsel inquired from him as to whether he stated such facts in his further statement under section 161, Cr.P.C. Recorded on 29-3-2000 to which he replied in affirmative. The trial Court took upon itself by examining the further statement under section 161, Cr.P.C. Of the complainant and made observation that such statements were not recorded in the said statement.
19. It is pertinent to point out that the trial Court was not justified in examining the F.I.R. Or 161, Cr.P.C.
Statement to record such observation, for the simple reason, that the said statements were not recorded by any Court in any judicial proceedings nor a presumption of genuineness and truthfulness is attached to such statements under Qanun-e-Shahadat Order, therefore, such observation should have not been made by the trial Court with regard to statement recorded by the police.
20. Under Article 140 of Qanun-e-Shahadat Order a separate procedure has been provided to prove the contradictions from the previous statement of a witness. The said procedure should have been adopted by the defence counsel. The correct procedure for obtaining contradictions of a statement recorded in Court from the statement recorded by the police under section 161, Cr.P.C.
Statement is that the attention of the witness is drawn towards the said portion of the statement and if the witness admits the said portion then an explanation is required to be obtained from the witness about the contradictory statement made by him in the Court from his 161, Cr.P.C.
Statement. If he denies, then the same question is required to be asked from the Investigating Officer, who recorded such statement to ascertain whether he recorded such statement and whether or not the witness had stated such facts in the said statement. After that such contradiction is required to be exhibited in evidence and then it can be used while assessing the evidence of witness. It is well-settled principle of law that if any act is required to be'done in a particular manner then it should be done in that manner, otherwise, it should not be done at all. It appears that the learned trial Judge was ignorant of the above provisions of law. He did not pay adequate attention in recording the evidence. However, such questions were not asked from the Investigation Officer who recorded further statement of complainant on 29-3-2000. When it was pointed out to the learned counsel for the appellants that no such questions were asked from Investigating Officer who recorded such statement and procedure to prove contradictions as required under Article 140 of Qanun-e-Shahadat Order was not adopted, then they frankly conceded that the contradictions have not been proved in accordance with law as such they cannot be called contradictions.
21. A perusal of statements of P.W.3 reveals that the examinationin-chief of this witness is spread into 4-1/2 pages. Examination-in-chief of P.W.5 abductee is spread into 6-1/2 pages. They have apparently made improvements in their evidence recorded in Court from their statements recorded by the police. Their evidence is also hit as discussed above while discussing the evidence of complainant. As such their evidence has been affected in view of rule laid down by the Honourable Supreme Court in the above mentioned authorities. Therefore, their evidence also requires independent corroboration.
22. From the assessm ent of their evidence it is clear that their evidence requires independent corroboration. It is well-settled that if a piece of evidence requires corroboration then that piece of evidence cannot corroborate an other piece of evidence which also require corroboration.
Reference is invited to Ali Akhtar Hussain v. State 1972 SCMR 40. In the present case the evidence of P.Ws. 3 and 5 requires independent corroboration; therefore, they cannot corroborate each other.
Hence the prosecution was required to lead independent evidence, which can corroborate their evidence, but the same is lacking in the case.
23. The learned Advocate for the appellants have mainly attacked the evidence of P.Ws. 3 and 5 and further statement of complainant on the ground that their statements were recorded after more than 2-1/2 months and without any explanation. On the other hand the learned A.A.-G. Took the view that the delay in recording the statement is due to the fact that the witnesses were under threat and fear of culprits, therefore, a reasonable explanation has been furnished, hence their evidence has no infirmity.
24. The Honourable Supreme Court of Pakistan examined the question of delay in recording the statement under section 161, Cr.P.C. In the authorities referred to by the learned Advocates for the appellants. The Honourable Supreme Court in the case of Muhammad Khan (supra) has observed that statement under section 161, Cr.P.C. Recorded with delay without any plausible explanation causes serious suspicion on the credibility of witnesses, therefore, such evidence was not relied upon. In the case of Muhammad Sadiq (supra) there was delay of 24 hours. The witness was friend of the deceased but he did not disclose to any one for the said period that he saw the murder, therefore, such evidence was not relied upon. In the case of Sahib Gul v. Ziarat Gul, 1976 SCMR 236, there was delay of four days in recording the statement by the police when the P.Ws. Were running shops near the place of the incident and also going with the complainant to the police station, therefore, the evidence was not relied upon. In the case of Sayed Saeed Muhammad Shah (supra) statement under section 161, Cr.P.C. Was recorded after delay without explanation of such delay.
The said statement was ruled out of consideration. Similar view was taken by High Courts of Sindh, Lahore and Peshawar in the above referred authorities relied upon by the learned Advocates for the appellants.
25. From the above case-law it is clear that if the police did not record the statement of witness immediately and delay is caused in recording such statement then a reasonable explanation is required to be furnished by the prosecution for such delay. If a reasonable explanation is furnished then the evidence of witnesses can be relied upon. If not, then such delay affect the veracity of witnesses and the, evidence is to be disbelieved and discarded as held by the Honourable Supreme Court of Pakistan.
26. It is an admitted position that there is delay of about 2-1/2 K months in recording the statements of witnesses. Now it is to be seen whether or not such inordinate delay has been explained by the prosecution.
27. We have examined the evidence on the above subject and found that the complainant, P.Ws.3 and 5 deposed that they were under fear, therefore, they did not allow the police to record their statements. Now it is to be seen as to how far the above stand taken by the witnesses is correct.
28. The incident took place on 17-1-2000 at about 11-00 a.m. P.W.3 reached his office at about 12-00 noon but before that he informed the details to Yousuf Bhai and Majeed Bhai big businessmen of the locality (not examined in the Court). They accompanied P.W.3 to his office. Yousuf Bhai intimated the facts to the complainant who reached in the office of P.W.3. There were consultations and discussions between the P.Ws. The culprits were in constant contact with the P.Ws. And were allegedly issuing threats. The complainant called CPLC people. (none from CPLC examined). They allegedly started monitoring the telephones of P.W.3. At 6-00 p.m. The complainant went to police station and lodged the F.I.R. Thereafter, they allegedly went to S.S.P. And met with him in his office, which was near their house. The S.S.P. Then allegedly showed them some photographs from an album to identify the culprits. They allegedly informed the S.S.P. That the culprits had made threats not to contact the police but in spite of that they had lodged the F.I.R. But the S.S.P. Informed them that the F.I.R. Was sealed and nobody would come to know that they had contacted with police.
(S.S.P. Not examined). Then they returned to their office. From the next day, the P.Ws. Were performing their business regularly and meeting with people of their association. On 1-2-2000, the complainant and P.W. Muhammad Illyas left for Saudi Arabia to perform Hajj. During this period their, statements under section 161, Cr.P.C. Were not recorded. However, P.W.5, was also meeting with the people and he was going to his office regularly. On 22-2-2000 F.I.R. Was desealed. On 26- 2-2000, 'the P.W.5 was called by police. He went to police station and showed them the place of incident. Then the police recorded his statement with regard to showing the place of incident. As per statement of P.W.2, he visited the place of the incident as shown by P.W.5 and then recorded his statement on the said aspect. But no detail of the incident was narrated to the said officer. Then on 1-3-2000 the P.W.5 went to Court of Magistrate where he identified the appellants. Even thereafter, his statement was not recorded nor did he give details of the incident to police. On 14-3-2000, the police submitted the challan in the Court against the appellants showing acquitted accused Saleem Memon as absconder. After submission of challan, on 21-3-2000, the P.W.5 went to police station and from there he and police went to PIDC House where on his pointation acquitted accused Saleem Memon was arrested. Even then he did not give details of his abduction. On 28-3- 2000, the complainant and P.W.3 returned from Saudi Arabia. On 29-3-2000, the police recorded the statements under section 161, Cr.P.C. Of P.Ws. 3 and 5 and further statement of complainant.
29. From the above sequence of details of the facts it is clear that the complainant P.W.1, P.Ws.3 and 5 from the very start were in contact with police, though it is alleged that they were under threat, but it appears that the said threats were not such where they were prevented from approaching the police and lodging the F.I.R. In the meantime, the police also approached them for recording their statements. They did not allow them to record their statements though the complainant and P.W.3 allegedly met with S.S.P. And the S.S.P. Showed them photographs of some persons to identify the culprits. This could have been possible only when they had narrated the facts to S.S.P. Under section 551, Cr.P.C. The S.S.P. Being the superior in rank of an officer of police station could have exercised the same powers as might have been exercised by the said officer. It is not expected from a Senior Police Officer that he would have not exercised such powers but it is surprising to note that the said S.S.P. Was not examined by the prosecution in this case in order to support the above version of the complainant and P.Ws. This clearly demonstrates that the P.Ws. Were improving their case slowly and gradually to justify and explain the delay in giving full details of the incident to the police on uncorroborated version.
30.. It is also pertinent to point out that the complainant and P.Ws.3 and 5 were narrating the incident to various persons including the persons of their association, CPLC people and their relatives but they were not disclosing the details of incident to police. None of the above persons and persons from CPLC have been examined to, support their above plea. If the fear of the culprits was so severe then they would have kept quiet and would have not disclosed the facts to anybody including any person of his association or CPLC people. Not only that, during the entire period the witnesses were meeting with police. They were assisting them in the investigation through various modes including showing the place of incident, identifying the accused in identification test and getting their statements recorded on other aspects of the case but did not tell the police about details of the incident. In spite of that the P.Ws. Had shown the place of the incident to P.W.2. Not only that; the police had submitted the challan of the case on 14-3-2000 but P.W.5 did not disclose the facts of the incident to the police and allow them to record his statement. There should have been no fear in the mind of P.Ws. After identification of the accused in the Court before the Magistrate or submission of challan before the Court. P.W.5 .Took the police to PIDC House on 21-3- 2000 when he assisted them in arresting the acquitted accused Saleem Memon but even then he did not disclose the facts to police but waited for the return of complainant and P.W.3 and after their return from Hajj on 29-3-2000, they allowed the police to record their statements and gave the details of the incident.
31. All the above facts clearly show that there were consultations between the witnesses. From the record it is clear that the improvements have been made in their statements so as to fit in the circumstances of the case. Thus, the explanation furnished by the P.Ws. Has not been proved, therefore, the rule laid down by the Honourable Supreme Court of Pakistan in the above mentioned authorities is fully applicable to the facts and circumstances of the present case. As such we hold that the witnesses are untrustworthy and unreliable, therefore, no implicit reliance can be placed on such type of evidence, without any corroborative piece of evidence, which is lacking in the present case.
32. As regards the identification parade, suffice it to say, that it is a corroborative piece of evidence.
It is not a substantive piece of evidence on which conviction can be based. It can only corroborate the substantive evidence. When substantive piece of evidence is disbelieved then merely on corroborative piece of evidence it would not be sufficient to award conviction. In the identification parade except for the first identification test, only few dummies were changed from the dummies in respect of identification test of other accused persons.
33 . As regards the recovery of mobile phone of abductee (P.W.5) allegedly produced by appellant Dr. Khalid, the prosecution relied upon four witnesses viz. Abductee (P.W.5), Magistrate (P.W.7).
Mashir Muhammad Sharif (P.W.9) and Investigation Officer (P.W.13). The evidence of P.W.9 and P.W.13 reveals that during investigation of another Crime No,50 of 2000, the appellant Dr. Khalid led the police to his house and apart from other articles; he produced a mobile phone which was secured by the P.W.13 in presence of P.W.9 on 23-2-2000. Both the witnesses have supported the prosecution case. The evidence of P.W.7 Magistrate reveals that on 14-3-2000 the abductee (P.W.5) identified a mobile phone from four other mobile phones. The evidence of P.W.5 reveals that he identified a mobile phone in the identification test held before the Magistrate.
34. The prosecution was required to connect the mobile phone produced by the appellant with the mobile phone of P.W.S. When the evidence of P.Ws.5 and 7 was recorded, at that time the mobile phone was not produced in Court nor shown to the witnesses nor exhibited in evidence. As such at the time of recording the evidence of P.Ws.5 and 7, they did not identify any mobile phone present in the Court but their evidence is that a mobile phone of Sonny Company was identified by P.W.S.
35. It is pertinent to point out that the evidence of P. Ws. 5 and 7 was recorded on 2-7-2002 and 3- 7-2002 respectively. The evidence of P.W.9 was recorded on 5-7-2002, whereas the evidence of P.W.13 was recorded on 9-7-2002. At the time of recording the evidence of P.W.9, a mobile phone was brought before the Court in a sealed condition. The learned Judge desealed the mobile phone and the P.W.9 identified the said mobile phone to be the phone recovered from appellant Dr. Khalid.
P.W.13 also identified the said mobile phone. From the record it is manifest that mobile phone which was produced by P.W.9 and exhibited in evidence as article 2 was for the first time produced in Court on 5-7-2002. As such, P.Ws.5 and 7, whose statements were recorded on 2-7-2002 and 3-7- 2002 respectively, had no occasion to see the said mobile phone article 2 so as to identify the said phone to be that of P.W.S. If the mobile phone was produced subsequently by P.W.9, after recording the evidence of P.Ws.5 and 7, then the prosecution was required to have recalled the P.Ws.5 and 7 to show them the said mobile phone in order to verify as to whether or not the mobile phone article 2 was the same mobile phone which belonged to P.W.5 but the prosecution did not do so. From the evidence it is manifest that the mobile phone article 2 has not been connected with P.W.5 and the crime. Thus, the prosecution has failed to prove this piece of evidence.
36 .The prosecutions has also led circumstantial evidence by alleging that the appellants had shown the place of abduction, place of offence and place of leaving the abductee. The place of abduction was already shown to the police by P.W.5, as such, it was already known to everybody.
Hence, the said discovery would not come within the ambit of Article 40 of Qanun-e-Shahadat Order. As regards the showing of remaining places, no further evidence was led by the prosecution through any of the witnesses, particularly, the abductee to prove that the said places were the same places as disclosed by the appellants. In absence of such evidence, the above piece of circumstantial evidence is of no help to the prosecution.
37. It has come in the evidence through P.W.13 Investigation Officer Abdul Hafeez Junejo that the F.I.R. Dated 17-1-2000 was sealed but it was desealed on 22-2-2000. The learned Advocates for the appellants have taken exception to such act of the police and argued that there is no provision in law under which F.I.R. Can be sealed. They have further argued that by sealing F.I.R., various provisions of Cr.P.C. Would be violated; such as, sections 156 and 157, Cr.P.C. Learned A.A.-G. Has stated that there is no direct provision in Cr.P.C. For sealing the F.I.R. But the police have power under section 157(1)(b), Cr.P.C. Not to investigate a case, therefore, the F.I.R. Can be sealed indirectly under the said provision of law.
38. We have given due consideration to the arguments and noticed that the tendency of sealing the F.I.Rs, by the police is increasing. A perusal of Criminal Procedure Code reveals that there is no provision in the Code for sealing the F.I.R. But on the contrary if an information is received by the Officer Incharge of police station in respect of an offence and if the said officer forms opinion that a cognizable offence has been committed then he is bound by law to register F.I.R. Under section 154, Cr.P.C. Under section 156, Cr.P.C. The police have been given power to investigate the case without obtaining the order from the Magistrate. The law has gone to such an extent that even if a Police Officer is not empowered to investigate the case and he conducted the investigation then such proceedings of Police Officer are not required to be called in question on any ground. Thus, the intention of the law is that as soon as a cognizable offence is committed, the F.I.R. Is to be registered and then the police are required to investigate the case immediately and complete the same within 24 hours as provided under section 61 read with section 167, Cr.P.C. If any delay is caused then the Police Officer is required to explain such delay and such column has been mentioned in 154, Cr.P.C. Book. The wisdom behind immediate action of the police is that incident showing the facts is immediately brought to the notice of area Magistrate to take further action if he so desires; that the evidence should not be destroyed and it should be immediately procured so that a real culprit can be convicted. It is further pointed out that as soon as the F.I.R. Is lodged then under section 157(1), Cr.P.C. Such officer is required to immediately send such F.I.R. To the Magistrate empowered to take cognizance. It is the mandate of the law that copy of the F.I.R. Is to be sent to Magistrate so that he should know that an offence has been committed within his jurisdiction on certain facts so that he may take further action. A copy of F.I.R. Can be obtained from the Court of Magistrate by an interested person or public at large after fulfilment of conditions for obtaining such copy. As such concerned person would come to know about the facts of the case. The law and procedure are so clear and transparent that they do not visualise sealing of F.I.R.
39. If the F.I.R. Is sealed then the Magistrate will be deprived of knowing that an offence, with facts constituting the offence has been committed within his jurisdiction. Further the complainant and people will' also not come to know about the facts of the case. Under section 159, Cr.P.C. The Magistrate is empowered to hold investigation or preliminary inquiry after receipt of such F.I.R. If the F.I.R. Is not sent to him because of its sealing then the Magistrate will be debarred from holding such investigation or preliminary inquiry as visualized under section 159, Cr.P.C. Thereby allowing the police to interfere with the exercise of the powers and jurisdiction of the Magistrate, which the law will not permit a Police Officer to do such an act. No doubt, under clause (b) of proviso to section 157(1), Cr.P.C. The police have been given powers not to enter into investigation on sufficient grounds. The said provision reads as under:-- "157. Procedure where cognizable offence suspected.--- (1) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate, empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officer (not being below such rank as the (Provincial Government) may, by general or special order, prescribe in this behalf) to proceed, to the spot, to investigate the facts and circumstances of the case, (and if necessary, to take measures) for the discovery and arrest of the offender: ' Provided as follows:--
(a) Where local investigation dispensed with, when any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) Where Police Officer-in-charge sees no sufficient ground for investigation, if it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection (1), the officer-in-charge of the police station shall state in his said report his reasons for not fully complying with the requirements of that subsection, (and in the case mentioned in clause(b), such officer shall also forthwith notify to the informant if any, in such manner as may be prescribed by the (Provincial Government), the fact that he will not investigate the case or cause it to be investigated)."
40. Under section 157(1)(b), Cr.P.C. If an officer-in-charge of police station forms an opinion that there are no sufficient grounds for entering into an investigation, then he shall not investigate the case. This power is not absolute as under subsection (2) of section 157, Cr.P.C. Such Police Officer is required to record his reasons for not fully complying with the requirements of subsection (1) and in a case as mentioned in clause (b) such officer is required to immediately notify the informant, if any, in such a manner as may be prescribed by the Provincial Government about the fact that he will not investigate the case or cause it to be investigated. Under subsection (2) the Police Officer is required to send such report to the Magistrate. If the complainant or informant is aggrieved then he can approach the Magistrate or the Magistrate himself after examining such report has power under sections 156(3) and 159, Cr.P.C. To order the police to investigate the case. Further, for stopping the investigation, there should be an F.I.R., as such, the police are required to record F.I.R.
Once the F.I.R. Is recorded, copy of it has to be sent to the Magistrate and then the police will decide whether or not to enter into investigation. Thus, the question of decision to enter into investigation will arrive after registration of F.I.R. And sending its copy to the area Magistrate. Thus, under II section 157(1)(b) the police are not empowered to seal the F.I.R.
41. Furthermore, apprehension has been shown that in the garb of sealing the F.I.R., the same is kept blank, which can be filled in after consultations to prepare a case or story to involve accused persons. In sealing the F.I.R. Such possibility cannot be ruled out of consideration. Further it will also affect the transparency and authenticity of prosecution case.
42. In view of above legal position the police shall stop the practice of sealing the F.I.R. Because such act of the police is illegal and against the law. Therefore, we direct the Provincial Police Officer to issue directions to all the Police Officers not to seal the F.I.R. Henceforth and if they seal the F.I.R.
Then apart from departmental action, a complaint under section 166, P.P.C. Should be filed against such officer before a competent Court of law for disobeying the directions of law as directed under sections 156(3), 157 and 159, Cr.P.C.
43. After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the appellants and the learned trial Judge has rightly acquitted co-accused Muhammad Saleem by assigning cogent reasons.
44. Consequently, the appellants in Appeals Nos.69 of 2002 to 71 of 2002, 75 of 2002 are acquitted and set at liberty. They are in custody. They should be released forthwith if not required in any other custody case. The appeals are allowed whereas Acquittal Appeal No,73 of 2002 is dismissed.