1. GULZAR AHMED, J.---These two jail appeals have been filed against a common judgment dated 30-10-2007 passed by learned Judge Anti-Terrorism Court-I, Karachi in Special Case No.20 of 2007, by which both the appellants have been convicted under section 7(e) of the Anti-Terrorism Act, 1997 and sentenced to life imprisonment and forfeiture of their property to the extent of Rs.2,00,000 each and in default/non-recovery to suffer R.I. for six- months more than benefit of section 382-B, Cr.P.C.
2. Brief facts of the matter are that one Kashif Khan son of Dr. (H) Abdul Wahab Khan has lodged an F.I.R. No.202 of 2007 at police Station Shahra-e-Noor Jehan, North Nazimabad, Karachi on 14-4- 2007 at 0200 hours alleging that his father Dr. (H) Abdul Wahab Khan, aged 50 years, is a doctor and running a clinic near Orangi Town, Qatar Hospital with the name and style of Atif Poly Clinic. On 12-4-2007 at about 5-00 p.m. his father left the house on motorcycle No.KAZ-6080, CD-70, Black color model 1990 by informing his mother Mst. Mairaj Bano that he is going to visit a patient at new Karachi / Sindhi Hotel near Ameen Hotel on telephonic request of a lady. Until 12 midnight the father of the complainant did not return upon which search was started with no result. The complainant also called on the cell phone No.0321-8721899 of his father but found the same to be switched off.
3. He then got a report registered at police station Shahrah---e-Noor Jehan, North Nazimabad, Karachi of missing of his father and continued the search. On 14-4-2007 at about 12-1/2 at night a call was received from the cell phone No.0321-8721899 of complainant's father on the landline No.6626302 of the house which was received by complainant's uncle Tassaduq Ali Khan when the un--known person informed the complainant's uncle that father of complainant is with them and till 12-00 noon Rs.20,00,000 be paid to them otherwise father of complainant will be killed. On receipt of this call, the complainant went to police station and lodged the complaint of abduction of his father for reason against unknown accused persons.
4. It appears that subsequently on negotiations with the accused on telephone the ransom amount was agreed at 40,000 with a mobile telephone set at appointed place about which the complainant party informed the Investigating Officer. On receipt of ransom amount the accused were apprehended and the ransom amount is said to have been recovered from them and on the pointation of accused abductee was recovered from their house. There were two accused who disclosed their names as Dr. Muhammad Abrar Younus and Mst. Huma. The accused were arrested and after usual investigation were challaned and the case was transferred to Anti Terrorism Court- I, Karachi for disposal in accordance with law. Charge was framed to which both the appellants pleaded not guilty and claimed to be tried.
5. Prosecution examined S. -I . P. Muhammad Hanif who recorded F.I.R. and produced the same in Court as Exh.5/A, P.W. Mst. Mairaj Bano wife of abductee who produced memo. of inspection as Exh.6/A and memo. of arrest of accused persons and seizer as Exh.6/B, P.W. Dr. (H) Abdul Wahab Khan, the abductee, who produced Mashirnama of recovery of his motorcycle as Exh.7/A and memo. of recovery of his Surgical kit as Exh.7/B, P.W. Shabbir Ahmed from whose house the surgical kit was recovered and he admitted his signature on memo. of recovery Exh.7/B, P.W. Shakir Abbas the owner of the house of which accused Dr. Muhammad Abrar. Younus was tenant, who produced tenancy agreement as Exh.9/A, P.W. Kashif Khan complainant who admitted his signatures on F.I.R.
6. Exh.5/A and the memo. of arrest and seizure Exh.6/B and produced memo. of recovery of abductee and seizure as Exh.10/A, P.W. Abdul Wajid, who admitted his signature on Exh.7/A being memo. of recovery of motorcycle of abductee, P.W. Abdul Rauf Khan the brother of the abductee who produced photocopy of Entry No.38 of Station Diary dated 13-4-2007 Exh.12/A, P.W. Bashir Ahmed the Investigating Officer who produced copy of letter dated 14-4-2007 of S.S.P. Investigation AVCC CCP Karachi for conducting investigation as Exh.13/A, letter addressed to CPLC for keeping observation on abductee's mobile phone and PTCL line of abductee's house as Exh.13/B, attested copy of station diary No.18 dated 15-4-2007 as Exh.13/C, the receipt of handing over the abductee to his son as Exh.13/D, copy of letter dated 16-4-2007 to S.S.P. AVCC Karachi for obtaining details of calls and names of owner of mobile telephone and PTCL No. as Exh.13/E, inspection memo. of place of abduction as Exh.13/F, seizer memo. of audio cassette as Exh.13/G, details of calls of mobile phone No.0321-8721899 as Exh.13/H, details of calls of mobile phone No. 0321-2537665 as Exh.13/I, memo. of seizer of phone calls print as Exh.13/J, subscriber information of mobile phone No. 0345- 2537667 as Exh.13/K. Court witness Osman Maftun of Warid Telecom who produced Exh.16/A to Exh.16/J, Court witness Norbert J. Almeida, Assistant Manager Telenor produced document Exhs.17/A to 17/E. All the P.Ws. and Court witnesses were cross-examined by the counsel for defence. The trial Judge also made a local inspection of the house where abductee was kept as Exh.19. On the closure of side of prosecution, statement under section 342, Cr.P.C. of appellant. Dr. Muhammad Abrar Younus and appellant Huma was recorded. The appellants did not examine themselves on oath nor they produce any defence witness. Upon hearing the Advocate for the parties the impugned judgment was announced convicting and sentencing the appellant as noted above.
7. Learned counsel for the appellants has contended that there is no unimpeachable evidence on the record of demand of ransom and evidence of mobile phone does not connect the appellants as the mobile phone was not in the name of abductee. He further contended that even the evidence of tape recording of cassette produced in evidence has no bearing as neither the copy of cassette was provided to the appellants nor the cassette was played in the Court. He contended that non- playing of cassette in Court amounted to non-production of evidence or raises adverse inference against the prosecution. As regards recovery of ransom amount, he states that currency notes were not tainted and were not shown to Investigating Officer and compliance of section 103, Cr.P.C. was not made of the recovery of ransom amount although the recovery was made in a public place. He further contended that no recovery of any arm or even a stick or Danda was made from the appellants and there was no possibility of the appellant abducting and keeping the abductee in chain for almost three days. He further contended that in the absence of arm, it cannot be expected that alleged abductee would not resist his abduction and would have not made hue and cry attracting the Muhalla people where he was kept abducted and further nothing has been said in the evidence as to who gave food to the abductee and who took him to the bathroom etc. He further contended that the abductee and appellant Dr. Muhammad Abrar Younus were known to each other being both Homeopathic Doctors and had clinic on same road and P.W.4 Shabbir Ahmed in his evidence has deposed that he has seen the abductee and appellant Dr. Muhammad Abrar Younus together. He further contended that the appellant Dr. Muhammad Abrar Younus in his statement under section 342, Cr.P.C. has stated that the abductee was on visiting terms with him and the abductee has intended to marry co-accused Mst. Huma who rejected the abductee and further the abductee had borrowed Rs.150,000 from Mst. Huma and she demanded the return of said amount from him and on this count the abductee was angry and that S.-I.P. Ch. Manzoor Ahmed due to fight between his brother- Ch. Nisar Ahmed and appellant Dr. Muhammad Abrar Younus at railway station Pcca Aana during Local Government Elections 2000 joined hands with abductee and in collusion Osman Maftun shows that the mobile phone of abductee was activated with the old number in May 2007 after the abductee has produced the jacket of mobile phone from which mobile phone calls were received at the abductees house. He contended that the jacket is the evidence and on the jacket there is a sticker which contains SIM number but the sticker was misplaced which has no relevance as the mobile phone company has activated the mobile phone of the abductee with the same old number. He contended that ransom calls were made from the mobile phone which is established. The learned DPG further contended that as the cassette was not played in the Court, it is not a material piece of evidence and he does not rely upon it. He contended that the provision of section 103, Cr.P.C. was complied with inasmuch as Kashif son of abductee was the Mashir of recovery of the abductee and a natural witness and he has no reason to falsely implicate the appellants in the case. He further contended that no private person involves himself in criminal cases by giving statement. He further contended that recovery of ransom amount is sufficient evidence to connect the appellants and there was no need for having ransom amount tainted. He further contended that P.W.7 Abdul Wajid who was Mashir of recovery of motorcycle of abductee is a natural witness so also P.W. Shabbir Ahmed and all the prosecution witnesses have supported the prosecution case. He contended that the case has been proved against the appellants beyond doubt and there is no contradiction in the statement of any of the witnesses. He contended that it was not necessary for the appellant to be armed for abduction of abductee as some threat to life is sufficient. He further contended that abductee did not know the appellants and that there may be with police implicated him in the false case. Learned counsel further contended that although the incident is alleged to have been taken place on 12-4-2007 at 5-00 p.m. but its F.I.R. was lodged on 14-4-2007 at 2-00 a.m. with unexplained delay. He has contended that the very F.I.R. is doubtful, manipulated and based upon afterthought. As regards identification, he contended that appellants were not knows to P.Ws except abductee. He contended that there was no deliberate delay on the part of the appellants in filing of the appeals, which was occasioned due to non-compliance of rule 90 of Jail Rules by the Superintendent Central Prison Karachi. He further contended that in any case while admitting appeal the Court has already contended the delay. In support of his submissions he has relied upon the case of Asif Hussain v. State 2005 MLD 1911, Muhammad Akram v. State 2009 SCMR 230, Irshad Ali Alias Ishoo v.
8. State PLD 2006 Karachi 178, Mursal Kazmi Alias Qamar Shah v. State 2009 SCMR 1410, Sheikh Muhammad Rashid v. Majid Nizami, Editor-in-Chief, the nation and Nawa-e-Waqat, Lahore PLD 2002 SC 514 and Shahid Alias Kaloo v. State 2009 SCMR 558.
9. On the other hand, learned DPG contended that even if the evidence regarding use of abductee mobile phone and that of his wife is disregarded still there is evidence that several calls were made from the mobile phone of appellant Huma to the wife of abductee. He has contended that mobile phone is in her name and the ownership of the mobile phone by the appellant Huma and making of calls to the abductee's wife are supported by the evidence of Court witness No.2 namely Norbert J. Almeida whose evidence was not called in question. He further contended that evidence of Court witness No.1 namelysome minor irregularities which are not material but curable. The ground of delay in filing of appeal was not passed by the learned DPG. He finally contended that both the appeals are liable to be dismissed. In support of his submissions, he has relied upon the case of Sharafat Ali v. The State 1999 SCMR 329.
10. Learned counsel for appellants argued in rebuttal that it has come in evidence that abductee was put in chain but it is not stated anywhere that he could not have moved and stood up and made noise and that this fact is intriguing as to why the abductee did not raise any hue and cry and sought help from the neighbours of the house where he is said to have been kept in abduction.
11. We have considered the submissions made by the learned counsel and have also gone through the record.
12. The main witnesses in the case are P.W.2 Mst. Mairaj Bano the wife of abductee, P.W.3 Dr. (H) Abdul Wahab Khan the abductee and P.W. 6 Kashif Khan the son of the abductee and P.W.9, Investigating Officer Bashir Ahmed.
13. The only direct evidence available on the record of the abduction of the abductee is that of abductee himself. So far the demand of ransom is concerned, the only evidence available on the record is that of P.W. Mairaj Bano. The P.W. Kashif Khan has lodged the F.I.R. and has followed his mother P.W. Mairaj Bano for Payment of ransom amount and is also a Mashir of arrest and recovery of property made from the appellants so also is the Mashir of recovery of abductee from the house of appellants.
14. P.W. Dr. (H) Abdul Wahab Khan, the abductee in his evidence stated that he is a practising Homeopathic Doctor since last 10/11 years having clinic near Qatar Hospital Orangi Town, Karachi.
15. On 11-4-2007 at noon time he has received a call at his house PTCL line No.021-6626302 from a lady caller asking him to perform circumcision of her son to whom he replied that since she was unknown to him he could not do that without making mind and thinking over it. On 12-4-2007 again at noon time he received a call at his same residential telephone and caller repeated the same thing and enquired as to whether he has made up his mind and insisted that he should do the same and he replied that she was not known to him. The caller stated that she knew him and he should go to Sindhi Hotel near Ameen Hotel and she would contact him there to which he agreed to reach there at about 1730 hours. After informing his wife P.W. Mairaj Bano he left the house at about 1700 hours along with medical kit on his black motorcycle Registration No. KAZ 6080 and reached at Ameen Hotel at about 1730 hours where the caller lady came in contract with him and boarded on his motorcycle and took him to her house in sector 5/E, North Karachi. He parked his motorcycle at the door of her house and entered the house and enquired from the lady about her children/son on which she replied that they have gone to Medressah. In the meanwhile her husband also came in the house and captured him. Both, the husband and wife dragged him towards the kitchen and iron cot and forced him to sit on it and then put iron chain in his hand and after making him captive issued threats that in case he cried they would kill him. The abductee further stated that in the night of 13/14-4-2007 the male accused snatched his mobile phone bearing No.0321-8721899 and from it called at his residential telephone number and told the responding person that he has been kidnapped and made captive and demanded ransom of Rs.20,00,000 as condition for his release and thereafter gave the mobile telephone to the abductee for brief talk with his wife and he has said to his wife P.W. Mairaj Bano that he was in difficulty and not feeling well and she should do her best for his release. The abductee has further stated that on 15-4-2007 at night time police party came to the house of the accused along with his son P.W.
16. Kashif Khan and both the accused handcuffed and police released him by removing the chain and his son Kashif Khan brought him home. He has stated that police prepared memo. of his recovery/ release. On 17-4-2007 he was called by Investigating Officer. Bashir Ahmed when HC Danish was also present along with male accused and the accused led to recovery of his motorcycle from Rajput Milk Shop and its Mashirnama was prepared. The abductee further showed the police the place of his kidnapping of which Mashirnama was prepared and then male accused led the police for recovery of medical kit from house No.L-556, Sector 36-H, Taiser Town near Lyari Expressway whose Mashirnama was prepared. In cross-examination he has denied the suggestion of knowing anything about Faiz-e-Aam Clinic or its location or knowing accused Huma an employee of Faiz- e-Aam Clinic or working as supplier of potency medicines of homeopathic or having borrowed Rs.1,50,000 from Huma for investment in his business or that he had knowledge of Huma having obtained divorce from her previous husband and he intended to marry her and that on demand of loan by Huma and her marriage to co-accused Abrar he has got them falsely implicated in the crime. Apart from this evidence of the abductee about his abduction, his son P.W. Kashif Khan is a Mashir along with SIP Ch. Manzoor Ahmed of recovery of abductee. The Investigating Officer Bashir Ahmed in his evidence has stated that both the accused have led the police to their house from which the abductee was recovered. P.W. Mairaj Bano the wife of the abductee in her evidence has stated that on 12-4-2007 at about 1700 hours her husband has left the house on his motorcycle informing her that he is going for examination of a patient on a call of a woman at New Karachi near Ameen Hotel and when her husband did not return by about 2200 hours, she became worried and in the meanwhile her son P.W. Kashif Khan also came and she and her son searched him in neighbourhood until 2400 hours. Consequently her son with his uncle P.W. Abdul Rauf went to the Police Station for recording report of missing of her husband. She also stated that she has received telephone call from the accused demanding ransom for release of abductee her husband and that while paying the ransom amount the accused were arrested and her son had proceed with the police party for recovery of her husband. These are the material piece of evidences regarding establishing the fact of abduction of the abductee.
17. As regards the case of demand for ransom is concerned, P.W. Mairaj Bano the wife of the abductee in her evidence has stated that as many as seven telephone calls were received for demand of ransom, the first one of which was received at 0030 hours on 14-4-2007 from the mobile phone of her husband which was received by Tassaduq Ali Khan (the brother in law i.e. abductee's sister's husband) who informed P.W. Mairaj Bano that her husband has been made captive and Rs.20,00,000 is to be paid for his release. Tassaduq Ali Khan has not been examined and this piece of evidence can easily be overlooked as mere hearsay. P.W. 'Mairaj Bano has further deposed that after the caller has finished the talk with Tassaduq Ali Khan, again a call was received when she talked with her husband who informed her that he is in captivity and asked her to fulfil the demand of the accused. After this telephone call her son P.W. Kashif Khan went to Shahrah-e-Noor Jehan Police Station and lodged report of abduction of her husband for ransom and while returning home he brought a tape recorder supplied by Police/CPLC which was connected to the PTCL No.021- 6626302 for recording subsequent conversation of the accused. She has further stated that on 15- 4-2007 at about 1700-1730 hours she received telephone call from the accused using the mobile telephone of her husband on her PTCL line when demand for ransom was repeated and at her request the ransom amount was agreed at Rs.40,000. Such amount was to be paid to accused at Shershah near Hub River Road. She stated that she could not go to the given place and again at 1930 hours a call from her husband's mobile telephone on PTCL line was received when the accused asked her as to why she has not reaching with the ransom amount at the given place on which she informed that she could not arrange the ransom amount upon which the accused asked her to arrange the same with an additional demand of mobile telephone set and should reach there. She has stated that she could not arrange purchasing of mobile telephone set in such a short time and decided to give her own telephone set to the accused. At 0200 hours the accused reminded her and she gave him SIM number of her being No.0321-2537665 and this time the accused changed the place for receiving the ransom and mobile telephone set at Nagan Chowrangi, Karachi Broast Restaurant and asked her to reach their by 2130 hours. She further deposed that she narrated this fact to her son P.W. Kashif Khan who arranged a taxi car for going to the place and P.W. Kashif Khan also informed Investigating Officer Bashir Ahmed of this development. She proceeded in taxi car while P.W. Kashif Khan and Arif Khan followed on motorcycle and motorcar respectively and reached Nagan Chowrangi at 2100 hours where Investigating Officer Bashir Ahmed met them. She stated that she went near Karachi Broast Restaurant at 2130 hours and she received call on her mobile telephone number when she informed that she is standing near Karachi Broast Restaurant. After 10 minutes another call was received on her mobile telephone when she was advised to stand near Agha Juice Centre and Peshawari Ice Cream in front of Iqbal Plaza and that a woman will come to receive the ransom amount. While she was standing on footpath on Shahrah-e-Noor Jehan, a Yamaha motorcycle registration No. OK-5678 came with a male and female on it and female took from her the polythene bag of white colour containing Rs.40,000 in 40 currency notes of Rs.1000 denomination and while the woman set on motorcycle and it was about to move, Investigating Officer Bashir Ahmed and his staff caught the accused and recovered ransom amount from the woman and seized the motorcycle. In all this, witness has mentioned that a total of seven telephone calls were received for demand of ransom, first one of which as stated above was received by Tassaduq Ali Khan which as stated by this witness was made from the mobile telephone of her husband. Out of the six telephone calls which this witness has herself received, she has stated that two calls were received from the mobile telephone of her husband on the PTCL line while in respect of two telephone calls she gave no description as to on which telephone line the calls were received and from which telephone number. The last two telephone calls she has stated to have received on her own mobile telephone.
18. The record regarding the ownership of and outgoing-incoming calls of mobile telephone of the abductee and that of P.W. Mairaj Bano has been produced by the Court witness namely P.W.
19. Osman Maftun, Manager Government Relations, Warid Telecom Karachi. Norbert. J Almeida, Assistant Manager Safety and Security,' Telenor Pakistan has produced record of ownership of mobile telephone of accused Huma and of its outgoing-incoming calls. Investigating Officer Bashir Ahmed has also produced record of outgoing-incoming calls of the abductee and P.W. Mairaj Bano mobile telephones and subscriber information of accused Huma mobile telephone.
20. The prosecution has heavily relied upon the evidence of mobile telephone to connect the accused with the commission of crime and therefore this piece of evidence needs close examination.
21. With regard to mobile telephone No.0321-8721899 which was stated by P.W. Mairaj Bano to be belonging to her husband was stated by Court witness Osman Maftun was registered in the name of one Salamat Zar from December 2006. He has stated that in May 2007 the said telephone number was changed from the name of Salamat Zar to the name of the abductee Dr. (H) Abdul Wahab Khan on showing of jacket of the SIM. Investigating Officer Bashir Ahmed in his evidence has stated that accused Muhammad Abrar Younus during interrogation has informed him that he has lost the mobile phone of the abductee. The mobile phone of the abductee has not been recovered nor produced in evidence. Court witness Osman Maftun in his evidence has stated that the mobile telephone No. 0321-8721899 was changed in the name of Dr. (H) Abdul Wahab Khan the abductee in May 2007 when he had come with jacket of the SIM and on verification of the jacket of the SIM, the said mobile number was changed in the name of Dr. (H) Abdul Wahab Khan. In his cross-examination he has admitted that the jacket Exh.16-D produced to him did not carry sticker of SIM number. He voluntary stated that at the time of production of the jacket by Dr. (H) Abdul Wahab Khan the sticker must be available with the jacket and might have been misplaced in the company. He admitted in his cross-examination that there is no visible mark on jacket Exh.16-D at the moment to indicate that any sticker was ever pasted on it. This Court witness has produced Cellular Services Agreement Form in the name of the Salamat Zar as Exh.16/B. Such Cellular Service Agreement Form does contain SIM Card No.50031944. In the Cellular Service Agreement Form of Abdul Wahab Khan, the abductee, produced as Exh.16/C, the column provided for SIM Card number is blank. Screen Shot Exh.16/E in the name of Abdul Wahab, the abductee, also does not contain the SIM number.
22. Thus, it becomes apparent from the above evidence that mobile telephone No.0321-8721899 did not exist in the name of Dr. (H) Abdul Wahab Khan, the abductee, until May 2007 and that transferring of said telephone number in his name in May 2007 was obtained without there being SIM number of registered owner of said mobile number.
23. P.W. Mairaj Bano has claimed to be owner of mobile telephone No.0321-2537665. Court witness Osman Maftun in his evidence has clearly stated that this mobile telephone number is registered in the name of Muhammad Umar Khan since November 2006 and in this respect has also produced Cellular Services Agreement Form in the name of Muhammad Umar Khan with SIM number as Exh.16/H. Thus, this mobile telephone number never came to be registered in the name of P.W.
24. Mairaj Bano. It may be noted that the mobile telephone of Dr. (H) Abdul Wahab Khan, the abductee nor of Mst. Mairaj Bano ever came to be recovered nor were they produced in Court. Thus, the very evidence as appearing on the record creates very serious doubt as to whether there were mobile telephones with Dr. (H) Abdul Wahab Khan, the abductee, and P.W. Mairaj Bano.
25. Although, conclusion drawn from the evidence available on the record is that Dr. (H) Abdul Wahab Khan, the abductee and P.W. Mairaj Bano did not possess the mobile telephone as claimed by them and in such eventuality the considering of outgoing and incoming calls made on these mobile telephone numbers become of little signifi--cance but in any case such aspect has also been examined with due care and caution.
26. It may be noted that P.W. Mairaj Bano has claimed as many as seven calls were received out of which the first one Was attended by Tassaduq Ali Khan. The details of the calls received are as follows:-
1. 14-4 20070030 hoursFrom abductee's mobile telephone on PTCL lineAttended by Tassaduq Ali Khan.
27. 2.From which telephone number this call was received and on which telephone not mentioned.Abductee talked with her wife P.W. Mairaj Bano.
3. 15-4- 20071700-1730 hoursFrom abductee's mobile telephone on PTCL line.Attended by P.W. Mairaj Bano.
4. 15-4- 20071930 hoursFrom abductee's mobile telephone on PTCL line.Attended by P.W. Mairaj Bano.
5. 15-4- 20072000 hoursFrom which telephone number this call was received and on which Telephone not mentioned.Attended by P.W. Mairaj Bano
6. 15-4- 20072130 hoursCall received on P. W. Mairaj Bano on her mobile telephone From which telephone number notAttended by P.W. Mairaj Bano mentioned
7. 15-4- 20072140 hoursCall received on P.W. Mairaj Bano on her mobile telephone. From which telephone number not mentioned.Attended by P.W. Mairaj Bano The Exh.16/G produced by Court witness Osman Maftun shows that following telephone calls were received on 14-4-2007 from mobile telephone No.0321-8721899 on PTCL line No. 021-6626203: Sr. No.Date Time
1. 14-4-200700-50-53
2. 14-4-200714-27-55
3. 14-4-200714-29-20 The telephone calls claimed by P.W. Mairaj Bano to have been received on her PTCL line do not tally with the calls which are shown in Exh.16/G inasmuch as not only there is considerable difference of time but the latter two calls are not even mentioned by P.W. Mairaj Bano. Court witness Norbert J.
28. Almeida has produced record of outgoing and incoming calls from mobile telephone No.0345- 2537667 belonging to accused Huma as Exh.17/D, the details of which are as follows: Sr.Date. Time 115-4-200720-28-02On the mobile phone of P.W. Mairaj Bano 2.15-4-200720-04-04On PTCL Line of P.W. Mairaj Bano.
29. 3.15-4-200721-06-45On the mobile phone of P.W. Mairaj Bano.
30. 4.15-4-200721-08-06On PTCL Line of P.W. Mairaj Bano.
31. 5.15-4-200721-24-33On the mobile phone of P.W. Mairaj Bano 6.15-4-200721-29-56On the mobile phone of P.W. Mairaj Bano 7.15-4-200721-35-47On the mobile phone of P.W. Mairaj Bano 8.15-4-200721-42-53On the mobile phone of P.W. Mairaj Bane 9.15-4-200721-44-29On the mobile phone of P.W. Mairaj Bano P.W. Mairaj Bano in her evidence has nowhere stated that she has received any telephone call from mobile telephone of accused Huma nor has she mentioned of having received any one call from mobile telephone No.0345-2537667. P.W. Kashif Khan in his cross-examination has specifically admitted that there has been no conversation between him and the culprit/caller on telephone.
32. Besides, in Exh.6/B which is memo. of arrest of accused persons and seizure there is overwriting in mentioning the telephone No.0345-2537667 said to have been recovered from the accused which overwriting has not been explained as to when and how this telephone number came to be written in the memo. of arrest and seizure. The total calls which P.W. Mairaj Bano in her evidence stated to have received on PTCL line and mobile telephone are seven in number while the Exh.7/D shows that total nine calls seem to have been made from the very mobile of accused Huma. Yet again, Exh.16/J which has been produced by Court witness Osman Maftun, which contains the details of telephone calls received on mobile telephone of P.W. Mairaj Bano from the mobile telephone of Huma altogether omits telephone call appearing at serial Nos. 2, 3 and 4 made from the mobile telephone of accused Huma. Thus, the omission of three calls from Exh. 16/J from one reflected in Exh.17/D makes both the documents not much reliable as in order to make the documents fully reliable, they should have been ad idem being computer generated record of the two mobile telephones. Yet again, time of the calls made from mobile telephone of accused Huma do not precisely tally with the time of telephone calls which P.W. Mairaj Bano in her evidence has stated to have received either on her PTCL line or on her mobile telephone. This piece l of evidence of telephone calls said to have been received at the house of P.W. Mairaj Bano or on her mobile telephone is inconsistent and does not corroborate the statement of P.W. Mairaj Bano and thus cannot safely be relied upon. Yet no document has also been produced by the prosecution to show that PTCL line No.021-6626302 was installed at the house of P.W. Mairaj Bano.
33. The other major factor which has created a serious dent in the prosecution case is with regard to establishing of the fact of demand of ransom said to have been recorded on a cassette through Tape Recorder. P.W. Mairaj Bano in her evidence has stated that after the telephone call, demanding ransom, was received on 14-4-2007, her son P.W. Kashif Khan went to the Police Station Shahrah-e-Noor Jehan and lodged the report on 14-4-2007 at 0200 hours of kidnapping for ransom of her husband and on return from the police station brought with him Tape Recorder supplied by police/CPLC and same was connected with her PTCL line for recording subsequent conversation with the culprits and she has also stated in her evidence that subsequently telephone calls were received on the PTCL line where the demand for ransom was repeated. P.W. Kashif Khan in his evidence has stated that Tape Recorder was provided by AVCC on 14-4-2007 at morning time without any documentation and the same was installed by them in his absence Investigating Officer Bashir Ahmed, who is a S.-I.P. investigation of AVCC Karachi, in this respect made the following statement in his cross examination: "I say that I had neither provided nor installed `Tape recorder' at the residence of victim with his PTCL No.021-6626302, it is incorrect to say that it was not in my knowledge that CPLC authorities had provided/installed `Tape recorder' with the victim's domestic PTCL number mentioned above. It is correct to say that I had not recorded 161, Cr.P.C. statement of any person from CPLC in connection with providing/ installing `Tape recorder' with cassette (article P/9) at the victim's domestic telephone number nor that of any expert."
34. P.W. Kashif Khan in his evidence has stated that audio cassette containing the recording of conversation between them and culprit/caller was produced by him to Investigating Officer Bashir Ahmed and such audio cassette was produced in Court as article P/9. Investigating Officer Bashir Ahmed in his cross-examination admitted the suggestion that there was no specific mark on the audio cassette (article P/9) tending to show that it related to this case and to have been provided/installed by any Government functionary nor he himself put any specific mark on it on its production by complainant P.W. Kashif K-han to him and securing the same. He denied the suggestion that the audio cassette article P/9 does not contain/carry the voice/sound of accused, victim and P.W. Mairaj Bano. Now, as is apparent from the evidence that audio cassette was produced in Court as article P/9 but it never came to be played in Court nor was there any evidence of Expert witness to connect the voice recorded in audio cassette with that of accused, the abductee and P.W. Mairaj Bano. Even the learned D.P.G. in his arguments has given up this piece of evidence for supporting the prosecution case. P.W. Mairaj Bano in her cross-examination has stated that she cannot say if the person who called and demanded ransom for the release of her husband was accused Dr. Muhammad Abrar Younus.
35. Prosecution had in its custody prime corroborative piece of evidence in the shape of audio cassette said to be containing conversation between accused, abductee and P.W. Mairaj Bano and demand of ransom amount for release of the abductee. The prosecution, however, did not chose to have this prime corroborative evidence established in Court by not playing the audio cassette and by not obtaining Expert's opinion .on it. The corroborative evidence is meant to test the veracity of oral evidence and both are required to be read together and not in isolation and if such prime corroborative evidence is omitted to be produced in Court, the only inference that can be drawn from it would be that had the audio cassette been played in Court it would have not supported the prosecution story.
36. The other discrepancies/contradic--tions in the prosecution evidence are that P.W. Dr. (H) Abdul Wahab Khan in his evidence has stated that he left the house along with medical kit. P.W. Mairaj Bano though stated that her husband left on his motorcycle and even gave its registration number did not mention that he took the medical kit with him. P.W. Mairaj Bano in her evidence has stated that her husband did not return home by 2200 hours and P.W. Kashif Khan in the meanwhile also came home, she and her son searched for the victim in the neighbourhood upto 2400 hours. P.W.
37. Kashif Khan in his evidence did not say anything about he and P.W. Mairaj Bano searching his father in the neighbourhood. P.W. Mairaj Bano in her evidence stated that when her husband talked to her on telephone he advised her to fulfil the demand of culprits while P.W. Dr. (H) Abdul Wahab, the abductee in his evidence stated that he has said to his wife to do her best for his release. P.W.
38. Kashif Khan in the F.I.R. has stated that he has tried to contact his father on his mobile telephone but it was found switched off but neither P.W. Mairaj Bano nor P.W. Kashif Khan said anything in their evidence about making calls on the mobile telephone of Dr. (H) Abdul Wahab Khan, the abductee.
39. P.W. Mairaj Bano in her evidence stated that ransom amount was handed over by her to woman accused in polythene bag of white colour but P.W. Kashif Khan in his evidence has stated that ransom amount was wrapped in a piece of cloth.
40. The other interesting factor regarding payment of ransom amount is that as per P.W. Mairaj Bano the accused have demanded not only the ransom amount of Rs.40,000 but had made an additional demand of mobile telephone set and she had also made up her mind to give her own mobile telephone set but while handing over the ransom amount, she only handed over the ransom amount of Rs.40,000 and not the mobile telephone set. In view of the fact that the ransom amount of Rs.40,000 with mobile telephone set was demanded by the accused for the safe release of the abductee the husband of P.W. Mairaj Bano, it could not be expected that P.W. Mairaj Bano will save her mobile telephone set and put the life of her husband in grave danger by not complying with the full demand of accused persons. P.W. Mairaj Bano in her evidence has stated that police reached at Nagan Chowrangi prior to her arrival while Investigating Officer Bashir Ahmed in his evidence stated that complainant party reached at Nagan Chowrangi prior to the police party.
41. P.W. Mairaj Bano in her evidence has stated that after the call was received from the accused for delivery of ransom amount at Karachi Broast Restaurant at 0200 hours, she told this fact to her son P.W. Kashif Khan as he then was available at the house and her son P.W. Kashif Khan informed the police about the culprit having given the place of receiving the ransom amount on telephone. P.W.
42. Kashif Khan in his evidence stated that he does not remember as to when caller's call came for handing over the ransom amount to culprit at Nagan Chowrangi and when his mother P.W. Mairaj Bano told him about it. As regards informing the police of such fact, he does not say that he himself informed the police but stated that `We' informed the police of such fact. P.W. Mairaj Bano in her evidence has stated that the place of handing over the ransom amount was fixed near Agha Juice and Peshawari Ice Cream in front of Iqbal Plaza. P.W. Kashif Khan in his evidence has stated that he had not seen any Iqbal Plaza situated near Nagan Chowrangi. P.W. Mairaj Bano in her examination- in-chief has stated that from the male accused recoveries were made at the time of arrest which included the bunch of six keys and all the recovered properties including the ransom amount was sealed on the spot by the Investigating Officer Bashir Ahmed, who obtained her signature on sealed packet. In cross-examination she admitted that the bunch of keys, recovered from the accused, was not sealed on the spot. Investigating Officer Bashir Ahmed in his evidence has stated that he has recorded statement of P.W. Mairaj Bano. P.W. Mairaj Bano stated in her cross- examination that police recorded her statement in this case thrice.
43. The other intriguing factor that emerges from the Officer Bashir Ahmed is that though the was informed that ransom amount of Rs.40,000 is to be paid, he took no steps for having the notes of ransom amount tainted or prepared their inventory. This was very necessary to establish that the ransom amount recovered from the accused is the same which was delivered by P.W. Mairaj Bano.
44. Not having done so, it cannot be said with surety that the ransom amount recovered from the accused is the same which was delivered by P.W. Mairaj Bano.
45. Besides above, no independent person who examined by the police who have gathered at the place of delivery of ransom amount and arrest of the accused and the Investigating Officer remained contended in making the P.W. Mairaj Bano, P.W. Kashif Khan and not examined S.-I. Ch. Manzoor Ahmed as Mashir of arrest and recovery. This was clear violation of section 103, Cr.P.C.
46. Over all assessm ent of above evidence looking at the factor that Tassaduq Ali Khan is not examined who has received first telephone call where demand for ransom of Rs.20 lac was made, the other evidence produced by the prosecution does not prove the case of demand of ransom beyond reasonable doubt and to this extent the prosecution has failed to establish the fact of demand of ransom for release of abductee.
47. As regards the case of abduction of Dr. (H) Abdul Wahab Khan the direct evidence in this regard is that of Dr. (H) Abdul Wahab Khan himself who has narrated story of his abduction already mentioned above. The very fact that on 11-4-2007 when he received call of lady for performing circumcision of his son and the abductee said to her that he did not know her and needs time to think over it and on 12-4-2007 he agreed with the lady, he has went to Sindhi Hotel near Ameen Hotel where the lady approached him and boarded his motorcycle and they together went to lady's house in sector 5/E, North Karachi does not appear to be natural way of a doctor visiting the house of patient. It also seems strange that the abductee has agreed to meet the lady caller at a place away from her house and had travelled alone with unknown lady. Further important fact regarding abduction is that abductee has not alleged that any sort of arm was used by the accused against him and as it appears from his evidence that he simply allowed the accused to put him in chains in their house. It was a small house in a building having three portions; one below and another above in a thickly populated area also having shops. It seems very unnatural and very intriguing that alleged abductee did not make hue and cry to attract the people; moreso, when the accused were totally unarmed even not a stick is stated to be with them and he has no reason to feel threat to his life at the hands of accused. At the same time it is also noted from the evidence of the abductee that his hands were chained meaning thereby he could have moved and walked around in the house. Further the abductee has also not stated in his evidence that he was constantly under vigilance of accused persons. P.W. Kashif Khan in the F.I.R. has stated that he has tried to contact the abductee on his mobile telephone which was found to be switched off. The abductee in his evidence has stated that in the night of 13 and 14-4-2007 the male accused has snatched his mobile telephone. From 5-00 p.m. on 12-4-2007 until the midnight of 13-4-2007 mobile telephone remained with the abductee and the fact that it was snatched from the abductee means that he was carrying the same in his hand and as to why all this time the abductee did not even attempt to contact P.W. Mairaj Bano or P.W. Kashif Khan or any of his relatives informing them about his abduction and keeping him at the place is altogether not explainable; moreso when the very evidence does not show that he was under constant vigilance by accused. Investigating Officer Bashir Ahmed in his evidence has stated that at the time of recovery of abductee, he was in semi-conscious condition. Mashirnama of recovery of abductee Exh.10/A does not say that the abductee was in semi-conscious condition. The abductee in his evidence has stated that on his release and removing of chains his son P.W. Kashif Khan brought him at home and police prepared memo. of recovery/release from the captivity of accused. Had the abductee been in semi-conscious condition he would have not remembered the preparation of memo. by the police and it also appears unnatural that abductee was not taken to the doctor/hospital rather he was taken to home by P.W. Kashif Khan. There is no medical report of the abductee suffering semi-conscious condition.
48. The abductee in his evidence has altogether denied knowledge about Faiz-e-Aam Medical Centre although he admits that he is owner of a house and shop built over plot No.1134 in sector 4/A, Surjani Town, Karachi. P.W. Shabir Ahmed in his evidence stated that he was tenant of the abductee of one of the shops on plot No.1134 in Sector 4/A, Surjani Town, Karachi and that Faiz-e-Aam Medical Centre is located on the same very road on which the house and shops of abductee is located. P.W. Shabir Ahmed stated that he is a painter and knows accused Dr. Muhammad Abrar Younus as he has prepared the signboard of his clinic. P.W. Mairaj Bano in her evidence admitted that abductee used to visit his house in Surjani Town. The abductee in his evidence stated that he did not know anything about Faiz-e-Aam Medical Centre and its location. He has denied the suggestion that he knew accused Huma who was an employee of Faiz-e-Aam clinic and that he has borrowed an amount of Rs.150,000 from accused Huma for investment in his business. He has further denied the suggestion that he has knowledge about accused Huma having obtained divorce from her previous husband and he intended to marry her. He further denied the suggestion that on making of demand for return of loan by accused Huma and her marriage with Dr. Muhammad Abrar Younus he has implicated both accused in the false case. P.W. Shabir Ahmed in his evidence has stated that he has once seen Dr. (H) Abdul Wahab the abductee at the clinic of Dr. Muhammad Abrar Younus prior to the incident. This evidence of Shabir Ahmed has altogether demolished the case of prosecution that Dr. (H) Abdul Wahab Khan, the abductee, had no knowledge about clinic of Dr. Muhammad Abrar Younus rather the evidence of P.W. Shabir Ahmed who is neutral person goes to establish the fact that Dr. (H) Abdul Wahab Khan, the abductee had know previously not only the Faiz-e-Aam Clinic but also accused Dr. Muhammad Abrar Younus and accused Huma being employed in his clinic must have also been known to him.
49. The accused Dr. Muhammad Abrar Younus in his 342, Cr.P.C. statement denied as false prosecution evidence that Dr. (H) Abdul Wahab Khan was abducted by him and his wife accused Huma at their house and demand for ransom was made from P. W. Mairaj Bano, the wife of the abductee. He also denied as false that he and accused Huma were arrested while receiving the ransom amount and denied the fact of recovery of motorcycle of the abductee as well as surgical kit of abductee and denied that any offence was committed by him. He stated that Dr. (H) Abdul Wahab Khan, the abductee, has visiting terms with him and co-accused at Faiz-e-Aam Clinic, Sector 4/A, Surjani Town, Karachi and he intended to marry co-accused Huma but she rejected the abductee and contracted marriage with him; more over the abductee had borrowed 150,000 from accused Huma who demanded return of said amount and on this count abductee was angry and S.-I.P. Ch. Manzoor Ahmed due to fight with his brother Ch. Nisar Ahmed and him at railway station Pcca Aana during Local Government Elections 2000 joined hands with abductee Dr. (H) Abdul Wahab Khan and they in ,collusion with police implicated him in the false case. This accused also denied ownership of recovered motorcycle Yamaha bearing Registration No. OK-5678.
50. Accused Huma in her statement under section 342, Cr.P.C. also stated similar facts as accused Dr. Muhammad Abrar Younus but did not say anything about the fight between Ch. Nisar Ahmed the brother of S.-I.P. Ch. Manzoor Ahmed with Dr. Muhammad Abrar Younus. The statement of accused made under section 342, Cr.P.C. to the extent that Dr. (H) Abdul Wahab Khan, the abductee was visiting Faiz-e-Aam Clinic of Dr. Muhammad Abrar Younus is supported the P.W. Shabir Ahmed and thus it cannot be said that Dr. (H) Abdul Wahab Khan, the abductee had no knowledge about Faiz- e-Aam Clinic or did not know Dr. Muhammad Abrar Younus and accused Huma. The establishing of the fact that Dr. (H) Abdul Wahab, the abductee previously knew Dr. Muhammad Abrar Younus and accused Huma could only led to conclusion that Dr. (H) Abdul Wahab the abductee had some thing against Dr. Muhammad Abrar Younus and accused Huma to falsely implicate them in the case of his abduction of ransom. During the whole of investigation Investigating Officer Bashir Ahmed has prepared memo. of inspection of the house where the abductee resided Exh.6/A, memo. of arrest of accused and seizure Exh.6/B, memo. regarding pointation of accused and seizure of motorcycle Exh. 7/A, pointation memo. and seizure of medical kit Exh.7/B, memo. of recovery of abductee and inspection of place of abduction Exh.10/A, pointation memo. of place of abduction Exh. 13/F, seizure memo. of Audio Cassette Exh.13/G and seizure memo. of mobile phone calls prints Exh.13/J. In one of the above memos. Investigating Officer associated the persons of locality at which these memos. were prepared rather Investigating Officer has felt content(sic) in associating either complainant party or police officials as Mashirs of these memos except Exh.7/A memo. of recovery of motorcycle of abductee which is also signed by P.W. Abdul Wajid and Exh. 7/B memo. of recovery of medical kit which is also signed by P.W. Shabir Ahmed. This action of the Investigating Officer was totally in contravention of the provisions of section 103, Cr.P.C. and is not supported by the evidence of respectable inhabitant of the locality where the Mashirnamas are said to have been prepared.
51. Another factor, very glaring on the record is that though it is stated that Dr. (H) Abdul Wahab Khan was abducted and there were several telephonic conversations between the accused and P.W.
52. Mairaj Bano in which the demand for ransom is said to have been made and P.W. Mairaj Bano having agreed to pay ransom amount of Rs.40,000 with mobile telephone set and the place and time of delivery of ransom amount was also agreed but none of the prosecution witnesses in their evidence have uttered a single word that when and in what manner the abductee was to be released and handed over to the complainant party. Evidence in this regard is altogether silent and it does not appeal to mind that though the ransom amount is being paid but nothing is being agreed with regard to release of abductee. This one very grueling fact which is missing in the prosecution story makes the case of prosecution regarding abduction and demand for ransom altogether untenable.
53. Though surgical kit is stated to have been recovered from the house of Shabir Ahmed which has also been produced but the very abductee in his cross-examination has admitted the suggestion that the surgical kit is a common commodity and that recovery on pointation of accused Dr. Muhammad Abrar Younus, being Article P/7, does not carry any specific mark or description tending to show that the same belongs to him. P.W. Shabir Ahmed in his cross-examination admitted the suggestion that there is no specific mark/description on the surgical kit and bag (Article P/7) to establish that it was the same which belonged to victim and that it was taken from the bag by the accused and produced before the police. Investigating Officer in this cross- examination also admitted the suggestion that in memo. Exh.7/B he has not given details of instruments comprising the surgical kit of victim. He also admitted the suggestion that such like bag and instrument/kit are the common commodity and could be purchased from the market any time easily. Thus, the fact that the surgical kit did not have any mark on it to show that it specifically belonged to abductee, takes away the very utility of his evidence for establishing the fact of recovery of surgical kit. There only remains evidence of recovery of a motorcycle from Rajput Milk Shop. This piece of evidence though may be in the nature of corroboration, it in itself will not establish the fact of abduction and demanding ransom for release of abductee.
54. For giving benefit of doubt it is not necessary that there should be many circumstances creating doubts. A single circumstance creating reasonable doubt in a prudent mind about guilt of accused makes him entitled to its benefit, not as matter of grace and concession but as a matter of right.
55. Reference in this regard is made to the case of Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230.
56. As discussed above, there being evidence that the abductee having known the accused party prior to the incident, this very fact in itself establish some motive to the complainant party to implicate accused in the case and, therefore, it cannot be said that evidence of prosecution witnesses is altogether impartial. Thus, the case law relied upon by the learned D.P.G. apparently has no application to the facts and circumstances of the present case.
57. In view of the above discussion, we are satisfied that the prosecution has not been able to prove the case of abduction of Dr. (H) Abdul Wahab Khan and making of demand and payment of ransom for his release beyond reasonable doubt and appellants are entitled to grant of benefit of doubt. We, therefore, allow both these jail appeals, set aside the impugned judgment and direct the appellants be released I forthwith if not required in any other case.
58. Both these jail appeals in the above terms stand disposed off.
59. Office is directed to send a certified copy of this judgment immediately to the Karachi Registry of Honourable Supreme Court of Pakistan.