' JUSTICE RUSTAM S. SIDHWA (CHAIRMAN)---This is an appeal by the State against the judgment of the learned Judge, Special Court for Speedy Trials, Rawalpindi, dated 30-9-1991, acquitting Asghar Ali, Gul Muhammad and Muhammad Ashraf accused in respect of charges under sections 365/34 and 386/34, P.P.C.
' Briefly stated the facts of the prosecution case are that on 17-9-1990 Muhammad Ashfaq Abbassi complainant presented a complaint Exhibit PA. To the S.S.P., Rawalpindi, for the registration of a case. In the said complaint the complainant stated that he was employed at the shop of Ehsanul Haq Abbassi by the name "Abbassi Cloth House" at Main Bazar, Kharian. Ehsanul Haq Abbassi had a partnership wiht Raja Jee Motors, Satellite Town, Rawalpindi. That Raja Masood had telephoned Raja Ehsanul Haq Abbassi that some vehicles had to be purchased, for which rupees twelve lacs were needed. On 29-8-1990 Ehsanul Haq Abbassi gave him rupees twelve lacs for delivery to Raja Masood at Rawalpindi. He left for Rawalpindi by Flying Coach and at about 7-30 a.m. Alighted from the said coach. Khatab Abbassi, who was relative of Ehsanul Haq Abbassi, was waiting for him at the Bus Stop, so he alongwith Muhammad Khatab Abbassi started walking on foot. When they reached near Pindi Hotel, which was under construction, a Khaki coloured Jeep and a 1974 model car of yellow colour stopped near them, in which five persons were sitting, who alighted and asked whether his name was Ashfaq Abbassi. He replied that same was his name. A person who was wearing a police uniform, on which the name plate "Asghar" appeared, slapped him hard and directed one of his companions by the name Gul Muhammad to handcuff both of them. After handcuffing them and getting them seated in the vehicle, they took them towards Peshawar. On the way, the accused threatened that if they raised hue and cry, they would be killed. When they reached near the bridge of Lawrancepur, the accused took them adjacent to an uninhabited road and asked them to hand over whatever amount they had, otherwise they would be killed. The Inspector wearing the uniform with the name plate of Asghar written on it, Gul Muhammad constable and another person Fraz Abbassi and two other unknown persons, who could be identified if they come before him, snatched rupees twelve lacs from him and took them back towards Rawalpindi. When they reached near Chuhr, the Inspector directed the driver to park the vehicle on a side and to bring two sticking tapes from nearby shop, who brought the tapes, which were fastened on their eyes. For a long time they were driven alongwith the accused and they also stopped at 3 to 4 places, but they did not know where. At about 9-00 p.m. Near Islamabad White House, the accused removed the sticking tapes from their eyes, the handcuffs from their hands and then disappeared into the White House. He alongwith Khattab Abbassi narrated this incident to Raja Masood and Raja Jehanzeb at Faizabad and also to Ehsan-ul-Haq Abbassi at Kharian on telephone. He alongwith Ehsanul Haq Abbassi on their own had been searching for the accused, but they could not be found. He requested that proceedings be initiated immediately against the accused and they be awarded deterrent punishment and the amount of rupees twelve lacs be got returned from them.
3. On 17-9-1990, complaint Exhibit PA. Was presented before the S.S.P.,Rawalpindi and on 18-9-1990 the D.S.P. Sent the same to the S.H.O., Police Station Waris Khan, for necessary legal action and report, but the present case was not registered by the police officer till 27-9-1990.
4. At the trial, the prosecution produced Ashraf Abbassi P.W.1 and Khattab Abbassi P.W.2 in respect of the ocular account, Ehsanul Haq Abbassi P.W.4 and Raja Masood C.W.1 in respect of the receipt of a telephone call from the said Raja Masood to send him rupees twelve lacs for purchasing vehicle and his having despatched Ashraf Abbassi P.W.1 with the said money on 17-9-1991, Ghulam Abbass A.S.I. P.W.6 in respect of the arrest of Asghar Ali and Gul Muhammad accused, Muhammad Akram Ranjha S.I. P.W.7 in respect of the arrest of Muhammad Ashraf accused and recovery of yellow coloured crime car P.2 belonging to Haq Nawaz, Haq Nawaz P.W.3 and Ghulam Abbass A.S.I.
P.W.6 in respect of the recovery of complainant's briefcase Exh.P.5, identity card of Ishfaq Abbassi Exh.P.6, currency notes of rupees seven lacs P.7/1--1000, crime Jeep Exh. P.1 and its registration book Exh.P.15 at the instance of Asghar Ali accused, Sahab Ullah Khan P.W.5 and Muhammad Akram Ranjha S.I. P.W.7 in respect of recovery of records from the Norcotics Board Office showing the absence from duty of Asghar All and Gul Muhammad accused on and from 29-9-1991 and Ghulam Abbass A.S.I. P.W.6 regarding the recovery of licensed Klashnikov Exh.P.3 alongwith two magazines Exh. P.4/1-2, sixty live bullets Exh. P.8/1-60, licence Exh.P.9, service card Exh.P.10, Passport Exh.P.13, Rupees 500 cash Exh.P.14/1-5 and key Exh.P.15 at the instance of Asghar Ali accused.
5. At the trial the accused denied all the accusations that were levelled against them. Ashgar All accused in particular stated that at the time of occurrence, he was Field Investigating Officer in the Pakistan Norcotics Board at Attock. That the Inter-Pol Police vide a letter No, VC/C/MF/88/69 dated 20-4-1988 had called an inquiry against Muhammad Mumtaz Abbassi and Muhammad Afraheem Abbassi, relatives of the complainant party, who had been arrested in Hong Kong for drug trafficking, that he had placed the complainant and his vehicle under surveillance, that on 21-9- 1990 he had been summoned by the S.H.O. Police Station Waris Khan, Rawalpindi and in the presence of the complainant party had been requested to refrain from keeping the complainant party under survelliance, failing which he was threatened that he would be involved in false criminal cases; that the instance case had been falsely instituted in pursuance of the said threat, that sum of rupees seven lacs shown by the Investigating Officer as having been recovered from him was actually the money of his brother which was lying in the bank in his name, which he had been compelled to withdraw on 29-9-1990 at the instance of the Investigating Officer, so that he could show the same as recovery of the tainted money, that the said sum of seven lacs belonged to his brother Muhammad Afzal who had brought it to Pakistan from Kuwait on 25-8-1990 in the form of Kuwaiti Dinars and gold jewellery, which he had declared at the Customs while entering Pakistan, and that the amount in his bank account represented the sale proceeds of Kuwaiti Dinars which his brother has sold at a depreciated value. In support of his case, he also produced Nazir Muhammad Khawaja D.W.1 and Muhammad Afzal D.W.2 who also got Exhibited photo copies of a large number of documents in support of the defence case.
6. The learned trial Judge on a number of grounds and more pairticularly on the basis of defence plea taken by Asghar Ali, accused and the defence evidence produced by him, held the case not free from doubt and acquitted all the accused.
7. The State has preferred this appeal against the acquittal of Ashgar All Gul Muhammad and Muhammad Ashraf respondents.
8. On behalf of the State it is submitted that the learned trial Judge was strongly influenced by the defence plea taken by Asghar All respondent and some witnesses and documents produced by him in his defence to hold that the case did not appear free from doubt and that Ashgar Ali respondent appeared to be the victim of a fabricated case. It is submitted that all the documents produced by the defence witness Muhammad Afzal were forged, or fabricated and had never been produced before the investigating officer at any ealier stage so that they could have been verified.
It is submitted that the complainant had come to know about the real nature of documents produced by the defence and had moved an application through State before the Court for placing on record the certificates issued by the concerned agencies about the fabricated nature of the same, but the learned trial Judge illegally refused to permit the said evidence or documents to be brought on the judicial record and thus illegally permitted the respondents to capitalize on the false and forged documentary evidence produced by them. It is further submitted that the defence plea taken by Asghar All respondent that he had been deputed to watch the activities of the complainant party, which was suspected to be involved in drug smuggling, and he hid placed Ehsanul Haq etc. Under the surveillance was not established through any evidence or material on the record and that even though Sahab Ullah Khan, Assistant Secretary, Pakistan Norcotics Board P.W.5 had appeared to give evidence, he was not cross-examined on behalf of the said respondents to show that he had been deputed to watch the activities of the complainant party who were suspected of drug smuggling or that he had placed any of their members under surveillance. It is lastly contended that the respondents were not known to the complainant party before the occurrence and, therefore, there was no reason why the complainant party would falsely implicate them or substitute them for the actual culprits, that the evidence of Ashraf Abbassi P.W.1 and Khattab Abbassi P.W.2 is clear and consistent on all the material points regarding the actual occurrence and the fact that Ashraf Abbassi P.W.1 was sent from Kharian to Rawalpindi with the money is fully supported by Ehsanul Haq Abbassi P.W.4 and Raja Masood C.W.1.
9. Learned counsel for the complainant supports the arguments of the learned counsel for the State.
10. On behalf of the respondents it is submitted that the trial Judge has on a proper appraisal of the evidence on the record and the surrounding circumstances, in the background of the defence plea taken by Asghar Ali respondent and the evidence produced by him in support thereof, rightly come to the conclusion, which he did, and therefore, the judgment of the trial Judge does not deserve to be reversed. In the alternative, it is submitted that in case this Court desires that further evidence be recorded in disproof of the documents submitted by the defence witnesses, the case may be remanded for the said purpose, but the appeal may be kept pending so that the same may be decided after additional evidence is recorded by the Special Court and submitted to this Court thereafter.
11. We have heard the arguments of the learned counsel for the appellant, the complainant and the respondents and have perused the record. Great stress has been placed by the learned trial Judge with regard to the evidence produced by Muhammad Afzal D.W.2, a brother of Asghar Ali respondent, in support of defence plea raised by the said respondent. Though a strong effort was made by the complainant party through the State for bringing on record evidence to show that the documents filed and exhibited on behalf of the accused were forged and fabricated, the said request was disallowed. The order of the learned trial Judge seems to suggest that the complainant party was aware of the defence documents, as Asghar All respondent had filed a paper book in the Supreme Court in criminal appeal Cr.A. No,43 of 1991, which was an appeal filed by Muhammad Ishfaq Abbassi for the cancellation of the bail of Asghar Ali, respondent, wherein all the said documents have been incorporated. It is the case of the appellant that as the instant criminal case stood transferred to the Special Court for Speedy Trials, the said appeal before the Supreme Court became infructuous and, therefore, was not pursued any further by the complainant's side, with the result that they never became aware of the said papers book, which had not been supplied to them by the Supreme Court Registry. The contention that the complainant first became cognizant of the said documents when Muhammad Afzal D.W.2 appeared in defence and had copies thereof proved and exhibited appears to be reasonable and probable, considering that Muhammad Afzal D.W.2, himself admitted that during the entire investigation he had never appeared before any police officer nor produced the said documents before any of them. It is the case of the appellant that no person by the name of Muhammad Afzal son of Muhammad Hussain entered Pakistan from Taftan Check Post and that the Currency Declaration Form proved by Muhammad Afzal D.W.2 was an obsolete form since five years prior to the said date and that the alleged signature of the Customs Officer on the Currency Declaration Form produced by the said witness was not of any Custom Officer posted on the relevant date on the said check post. These assertions are indeed grave and should have placed the learned trial Judge on guard, considering that he was dealing with a case of a police officer who was alleged to be guilty of a charge of abducting persons and allegedly and wrongfully confining them and of stealing their money, whilst having made preparation for causing hurt or restraint or fear of death.
Cases falling under the Special Courts for Speedy Trials Ordinance, XXV of 1991, demand special care and caution, in view of the constitutional provision which places them in the care of Special Courts, in view of the heinousness of their character and the fact that they are either gruesome, brutal or sensational in character or shocking to public morality. We do not consider that the learned trial Judge applied his mind with care and caution to the efforts on the part of the prosecution to bring the correct facts on the record, which has led to a grave miscarriage of justice. The failure on the part of the learned trial Judge to accept the application of the complainant to summon the two witnesses to give evidence, as prayed by the complainant in his application under section 476/540, Cr.P.C. Dated 25-9-1991, amounts to a failure to exercise jurisdiction which was vested in him and which he should have exercised, to prevent fraud being practised on the Court to deflect justice. The final judgment of the learned trial Judge deserves to be set aside, so that the case can be remanded to enable the learned trial Judge to summon and examine the two witnesses stated by the complainant in his application dated 25-9-1991, considering that it was the plea of Asghar All respondent that he had been deputed to watch the activities of the complainant party, which was suspected of being involved in drug smuggling, persuant to which he had placed their activities under surveillance, which do not appear to have been established through any material evidence on the record, the learned trial Judge may, if he so considers necessary, summon and examine as a Court witness the Regional Director, Norcotics Control Boad, Islamabad, or any such other officer of the said Board as he may consider necessary, to inquire whether any letter of the Inter-Pol, the particulars of which have been given by Asghar All respondent, was so received by them and, if so, whether the said respondent was deputed to watch the activities of the complainant or to place any one of them under surveillance and what report he had filed in the said connection in his Office in this respect of such supervision or surveillance.
12. For the foregoing reasons, we accept this appeal, set aside the judgment of the learned Judge Special Court for Speedy Trials, Rawalpindi, dated 29-9-1991, and remand the case to the said learned Special Judge for retrial from the point at which he had last left the case on 25-9-1991, so that he can summon and record the further evidence, as stated in para. No,11 above, and after examining all the accused once again under section 342, Cr.P.C. And recording their statements on Oath under section 340(2), Cr.P.C., if any given, and their defence, if any desired to be produced, to finally give judgment in the case.