ZAKIR KHAN and others vs THE STATE

' MAMOON KAZI, J.---This judgment will dispose of Criminal Appeal No,241/1994 and other connected appeals by leave of this Court, which have arisen from the judgment of the High Court of Sindh, dated 31-10-1993, whereby the respective appeals filed by the present appellants have been dismissed and the conviction and the sentence recorded by the learned Special Court II, Karachi, for Suppression of Terrorist Activities against the said appellants have been maintained.

The appellants were convicted by the said Special Court for offences allegedly committed by them under section 356-A and section 34 of Pakistan Penal Code and each one of them was sentenced to imprisonment for life and to pay a fine of Rs,50,000 and in default of the payment of fine, to undergo further R.I. For three years.

2. According to the case of the prosecution, on 30-10-1990 P.W. Muhammad Mustafa lodged a report at Gulberg Police Station, Karachi, stating that at about 3-00 p.m. His 16 years old adopted son, Muhammad Afaq had been kidnapped in a grey coloured car by four persons from outside his bungalow situated in Block 5, Federal B. Area, Karachi. The kidnapping was seen by him from his bed room and it had also been seen by P.W. Nauroze Khan, who was a Chowkidar in a nearby bungalow. The F.I.R. Was recorded by A.S.I. P.W. Ahmed Shah at 3-15 p.m. And a copy thereof was forwarded to S.H.O. Gulberg Police Station, P.W. Ashfaq Ahmad. A letter was also written by the A.S.I.

To Telephone Department to tape the complainant's telephone.

3. Between 05-00 and 06-00 p.m. The same day, complainant Muhammad Mustafa received a call on his telephone by some one who called himself Juma Khan and demanded a ransom of rupees five crores for release of Muhammad Afaq. Soon after the call appellant Muhammad Arif who was distantly related to the complainant visited him at his house and suggested that appellant Parvez Akhtar Zaidi should be contacted for help in this regard as he had contacts with different ethnic communities of Karachi.

3. On 31-10-1990, at about mid-night SHO Ashfaq Ahmad received spy-information that the abductee was confined in bungalow No,194/L in Block 2, P.E.C.H.S. A raiding party was formed by the S.H.O. And the complainant and his relative, Abdul Rahim, also accompanied the police. Thereafter, appellants Ismail Jamali and Mureed Abbas were arrested by the police from the said bungalow in presence of the complainant and T.T. Pistols loaded with cartridges were recovered from their possession. The said appellants then led the police to House No,D-23/4 in Gulshan-e-Iqbal which belonged to appellant Parvez Zaidi from where the said appellant was arrested by the police. He then took the police and the witnesses to a Murghikhana where the abductee was seen confined in a room. Appellants Ghazanfar Abbas and Zakir Khan who were guarding the kidnapee were also arrested by the police. They were searched by the police in presence of P.W. Muhammad Murtaza who had been procured by the police from Jaffar Tayyar Colony, Malir in the vicinity of the said Murghikhana. During the search a mauser and a T.T. Pistol, both with live cartridges were recovered from the possession of the said appellants.

4. Thereafter, the police arrested appellant Fazlur Rehman from a quarter in Jamshed Quarters and appellant Muhammad Arif from the house of the complainant. A locket worn by the abductee at the time of his abduction and a wallet with rupees 13 in cash, also carried by him at that time, were recovered by the police from appellant Fazlur Rehman in presence of Mashirs, P.W. Muhammad Shafi and Muhammad Yousuf. The police also secured the clothes which were worn by the abductee at the time of kidnapping from the house of appellant Parvez Akhtar Zaidi in presence of Mashirs Muhammad Mustafa and Muhammad Hamid. An identity card issued to the abductee by one Nasira School carrying his photograph was also secured by the police from the said clothes.

Appellant Ismail Jamali also led the police to his house in P.E.C.H.S. And produced one "Zeenat" watch and a handkerchief with "Afaq" printed thereon, both belonging to the abductee.

5. The story about his abduction was given to the Court by P.W. Muhammad Afaq, the abductee himself. According to him, he was blindfolded by his abductors inside the motor car as dark glasses had been put upon his eyes after which he could not see. The car was driven by accused Zakir Khan. The abductee was then taken to a bungalow and confined in a room where his glasses were removed. Thereafter accused Parvez Akhtar Zaidi brought a Shalwar and a Kamiz and asked the abductee to change his clothes. Accused Fazlur Rehman removed his locket and wallet which contained rupees 13 in cash. Accused Ismail Jamali removed his wrist-watch. Accused Parvez Akhtar Zaidi then asked co-accused Zakir Khan and Sabir to take the abductee to Murghikana. The accused was then once again blindfolded and taken in a motor car. Three of the accused including Parvez Akhtar Zaidi sat with him and while they were going, he heard accused Parvez Akhtar Zaidi telling Sabir Khan and Zakir to keep a watch over him as he was worth rupees five crores. The abductee was then kept in a room in the Murghikhana where accused Ghazanfar Abbas also joined the other accused. Thereafter, the accused left leaving Ghazanfar Abbas and Zakir Khan with the abductee. The abductee subsequently heard accused Parvez Akhtar Zaidi telling co-accused Ismail Jamali, Sabir and Mureed Abbas that he had telephoned the abductee's father and demanded a ransome of rupees five crores for his release. At about one O'clock in the morning only Zakir Khan and Ghazanfar Abbas remained at the Murghikhana to keep a watch over the abductee while the others had left. It was Fajar time when the police arrived. They were accompanied by his father P.W. Muhammad Mustafa, his uncle Abdul Rahim P.W. Muhammad Murtaza and Muhammad Hamid. The abductee was then rescued by the police.

6. The appellants in their respective statements recorded under section 342, Cr.P.C. Before the Court denied the said allegations against them. According to accused Ismail Jamali, he was only a Chowkidar and had been falsely implicated in the case. He also filed a detailed statement in the Court, showing his complete innocence. Similar statements were also filed by accused Mureed Abbas, Parvez Akhtar Zaidi, Ghazanfar Abbas, Zakir Khan, Muhammad Arif and Fazlur Rehman. In the written-statement filed by accused Fazlur Rehman, it was pleaded that his brother Shoaib had invested a sum of Rs,30,000 with appellant Parvez Akhtar Zaidi but the latter had returned only Rs,20,000 to him and when for the balance amount of Rs,10,000 accused Parvez Akhtar Zaidi was pressurised, he managed to get the accused arrested from his house. The accused also produced an agreement dated 23-4-1989 and a newspaper clipping showing a press conference held by the then D.I.G., Karachi, Mr. Aftab Nabi, in connection with the recovery of Muhammad Afaq from his abductors. According to accused Muhammad Arif, since his mother was an outsider in the family, he had been implicated falsely on account of jealousy.

7. Accused Ghazanfar Abbas also led evidence in his defence. He examined D.W. 1 Muhammad Islam, who claimed to be the neighbour of the said accused. According to the witness, on 31-10- 1990, at about 7-15 a.m. When he came out of his house for going to his office he saw four police vans outside the house of Ghazanfar Abbas and the accused was then taken away by the police.

D.W.2, Jaffar Mehdi, had also seen the accused being taken away by the police on 31-10-1990. The accused also examined D.W.3, Mr. Aftab Nabi, the then D.I.-G. Police, Karachi, in his defence. The witness deposed about holding of a press conference by him and he produced clippings from newspapers daily "Jang" and "Dawn", both dated 1-11-1990.

8. The prosecution built its case upon the evidence of P.W. Muhammad Afaq the abductee, his father Muhammad Mustafa and P.W. Nauroz Khan, all of whom were the eye-witnesses of the incident. The appellants were also arrested in presence of P.W. Muhammad Mustafa who also witnessed recovery of incriminating evidence from them. P.Ws. Muhammad Murtaza, Muhammad Shafi and Muhammad Yaqoob were the other Mashirs who also fully supported the prosecution case. P.Ws. A.S.I. Muhammad Shah and Ashfaq Ahmad Khan, S.H.O., were the police officers. The latter conducted investigation of the case.

9. The learned Judges of the Sindh High Court held that the prosecution witnesses were independent and reliable. According to them, the events happened so fast the prosecution had no time to concoct any false case against any of the accused. Since the accused were arrested at midnight, strict compliance with the provisions of section 103, Cr.P.C. Was also not possible. No doubt, P.W. Muhammad Afaq omitted to make certain disclosures to the Investigating Officer, but considering his age and his state of mind soon after the event, the same was natural and possible.

The learned Judges, therefore, concluded that the case against the appellants had been fully established. Therefor the appeals filed by them were dismissed.

10. Leave was granted to consider whether the conviction of the appellants was warranted by the evidence on record.

11. On behalf of the appellants, the case has been argued by Mr. Naraindas Motiani. Mr. Muhammad Ibrahim Abbasi has also argued the case on behalf of appellants Zakir Khan and Fazlur Rehman. It has been argued by the learned counsel for the appellants that, all the witnesses produced by the prosecution were interested witnesses and therefore, no implicit reliance could be placed upon them. The witnesses had made improvements in their testimony and their evidence was full of contradictions, therefore, the same did not inspire confidence. Further, the provisions of section 103, Cr.P.C. Were disregarded by the prosecution because the witnesses were not independent persons of the same locality where the search was made and therefore, no reliance could be placed upon their evidence. The learned Courts below had also given undue weight to the evidence of the prosecution and the defence version had been totally disregarded by, them. Besides that, one accused was arrested on the pointing of another which rendered the entire evidence regarding their involvement in the case inadmissible in view of the provisions of Articles 38, 39 and 40 of Qanun-e-Shahadat. It was further contended by the learned counsel that, none of the accused had been put to an identification test by the prosecution witnesses and therefore, the entire evidence of the prosecution was unworthy of any credit.

12. Coming to the first contention that the prosecution witnesses are interested witnesses, it may be pointed out that as already indicated, on the question of abduction, the prosecution has relied upon the ocular testimony of P.Ws. Muhammad Mustafa, Nauroz Khan and Muhammad Afaq, the abductee himself. Nothing has been indicated by the defence to question the credibility of the said witnesses. P.W. Muhammad Murtaza, one of the Mashirs was also not related to the complainant.

However, Muhammad Shafi and Muhammad Yaqoob, the other Mashirs were said to be related to the complainant and P.W. Muhammad Murtaza respectively. However, the rule laid down by this Court in respect of the evidence of interested witnesses is only a rule of caution. No doubt, judicial authorities are replete with instances where a more cautious approach was preferred by the Courts while dealing evidence of a partisan witness but support in such case may be sought from other independent evidence. The same would nevertheless depend upon the circumstances of each case. However, mere relationship of a prosecution witness to the complainant or other prosecution witness cannot render his evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case. Nothing can be spelt out from the evidence of the witnesses to indicate that anyone of them had motive to implicate the accused falsely. The abduction itself had not been questioned by the defence. The only question was whether the evidence as to the accused's involvement in the crime or the role assigned to each one of them was to be believed. However, in the present case, neither the accused had pleaded any enmity with the prosecution witnesses nor the police. Consequently, no justification can be found to doubt the testimony of the prosecution witness on account of their mere relationship with each other.

13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been 'laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.

13-A This plea when earlier raised before the learned Judges of the High Court, was dismissed by them as it was held that the contradictions or omissions pointed out to them were not material.

13-B Although many such discrepancies have been pointed out by Mr. Motiani but those which can be characterised as significant are that, P.W. Muhammad Afaq had failed to disclose earlier to the Investigating Officer that he had heard accused Pervez Akhtar Zaidi talking to the co-accused about the demand of rupees five crores made by him to the witness's father. P.W. Muhammad Afaq had also failed to disclose to the police that his locket and wallet had been snatched from him by accused Faziur Rehman. We would, however, like to point out that the evidence given by P.W.

Muhammad Afaq before the Court was further corroborated by the evidence of the other witnesses. First, corroboration was provided to his evidence by his father, Muhammad Mustafa by stating before the Court that he had received a call on his telephone by one person who had called himself Juma Khan and had demanded a ransom of rupees five crores for release of the abductee.

No doubt, the name of accused Parvez Akhtar Zaidi did not transpire in the evidence given by P.W.

Muhammad Mustafa, but the fact that he received a call soon after the occurrence demanding a ransom of rupees five crores lent sufficient support to the evidence of Muhammad Afaq. The evidence required for corroboration need not be similar evidence. But any significant evidence lending support to the fact required to be proven would constitute sufficient corroboration. This further indicates that P.W. Ghulam Mustafa was a truthful witness because by the time he was giving evidence before the Court, he must have already learnt from P.W. Muhammad Afaq that the person who had telephoned him and demanded ransom was in fact accused Parvez Akhtar Zaidi.

Therefore, it was not difficult for him to name accused Parvez Zaidi at the time of giving evidence before the Court. Yet he did not name him. We are, therefore, fully satisfied that notwithstanding the said omission, accused Parvez Zaidi was the main person in this crime. The other omission pointed out by Mr. Motiani also appears to be of little significance because the fact that accused Fazlur Rehman had snatched the locket and the wallet from Muhammad Afaq was fully corroborated by recovery of the said artides from the said accused. Therefore, the question is to be considered in the light of the overall circumstances of the case. Rules relating to the sifting of evidence as laid down by the superior Courts cannot be applied with absolute rigidity where strict adherence to them is not possible due to peculiar circumstances of a given case.

14. An attack was also launched upon the credibility of the prosecution evidence, yet from another angle, as it was contended that, the provisions of section 103, Cr.P.C. Relating to search of a house or a place were completely disregarded as witnesses from the same locality were not associated as Mashirs by the Investigating Officer to witness the recoveries which had been relied upon as incriminating evidence against the accused. Reliance has been placed by Mr. Motiani upon Yamen Kumhar v. The State (PLD 1990 Karachi 275). In this case the Police Officer investigating a case had requested a person to accompany him to the place where he was going to collect incriminating evidence against the accused. The recovery was challenged before the High Court of Sindh as being contrary to the provisions of section 103, Cr.P.C. Which require that before making a search a police officer or any other person about to make a search shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate, to attend and witness the search. It was held that such mode of witnessing the recovery would be improper when a person who was not resident of the locality was picked up by the police officer to witness the search. It was, however, further held that the provisions of section 103, Cr.P.C. Although, were mandatory but the same were not absolute and their non-compliance, in certain circumstances would not render the search or recovery illegal. In Muhammad Afzal v. The State (1983 SCMR 1) which was the next case relied upon by Mr. Motiani, recovery of the crime weapon was held to be highly doubtful for the reason that no disinterested and respectable person of the locality had been joined in the investigation to witness the same. Similar observations were made in Sultan and others v. The State (1987 SCMR 1177), where all the recovery witnesses were related to the deceased and were found inimical to the accused. Reliance is also placed by Mr. Motiani on Yar Muhammad v. The State (1992 SCMR 96), wherein this Court held that unless according to the facts and circumstances of the case, it was not possible to obtain Mashirs from the same locality where the recovery or arrest was to be made, it was the duty of the investigating agency to pick up Mashirs from the locality itself. Reference may also be made to another case of this Court on the point reported as Mirza Shah v. The State (1992 SCMR 1475), where, incidentally, the judgment was delivered by one of us (Saleem Akhtar, J.). After thorough re-examination of the case-law on the point, conclusion was reached that non-compliance in strict terms with the provisions of section 103, Cr.P.C. Was permissible only if the circumstances were such when it was not possible to comply with the provisions of the said section. For example, the Court would not insist on strict compliance of the said provisions and the evidence of a policeman could be accepted like any other prosecution witness when it could be proved that it was not possible for the investigating officer to comply with the provisions of the said section. It was further observed: "It would be rather going too far to say that the provisions of section 103 should be complied with in all circumstances irrespective of the fact whether it is practically possible to apply it". However, that would not mean that a police officer while making a search could completely ignore the provisions of section 103, Cr.P.C. If the facts and circumstances show that strict adherence to the same was possible. The object behind section 103, Cr.P.C. Appears to be to ensure that independent witnesses are associated with investigation of a case and possibility of concocted evidence is ruled out. However, the section lays down a rule of procedure and not of evidence. Therefore, no hard and fast rule can be laid down in respect of strict compliance with the provisions of section 103, Cr.P.C. As the same would depend upon the circumstances of each case. The present case, being a case of abduction, the Investigating Officer was required to act with utmost precision as any undue delay on his part could have defeated his efforts to rescue the abductee. Besides, lately it has been observed that investigating agencies generally find it convenient to call persons to witness a search or an arrest who are conveniently available for the purpose. Section 103, Cr.P.C. No doubt, lays down a procedure to be strictly followed by police officer who is going to make a search, however, when a deviation is made from this procedure, and the Court is satisfied that strict compliance with the provisions of the said section was not possible, it would then only enquire whether the person in whose presence search was made is a reliable and truthful witness. Further corroboration of his evidence by other independent evidence would only be required if it has been established that he had made obliging statements before the Court or there was reason to believe that he bore animus against the accused or there were other similar circumstances. No such motive has been attributed to any of the witnesses by the defence. The statement made by the Investigating Officer that it being Fajar time, no other witness from the locality was available to witness the search was also not challenged by the defence. Therefore, insistence upon strict compliance with the terms of section 103, Cr.P.C. Under such circumstances could hardly be justified. The defence having otherwise failed to shake the credibility of the prosecution witnesses, in no case it can be inferred that recovery of incriminating evidence against the accused was doubtful on account of the Mashirs not being from the same locality.

15. Having examined the entire evidence, we now advert to the provisions of Articles 38, 39 and 40 of the Qanun-e-Shahadat as the contention of Mr. Motiani in this connection is that, the accused were arrested upon the statement given by their co-accused, therefore, such evidence was inadmissible in view of Articles 38, 39 and 40 of Qanun-e-Shahadat. According to Articles 38, "no confession made to a police officer shall be proved as against a person accused of any offence% Article 39 carries the rule further, but for a confession made in the immediate presence of a Magistrate, by rendering a confession inadmissible if made by the accused whilst he is in custody of a police officer. Article 40 of Qanun-e-Shahadat which next follows the said Articles provides that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It means that a confessional statement made to a police officer or in presence of a police officer would be inadmissible in evidence unless it leads to discovery of a fact. In fact Article 40 operates as a proviso to the preceding Articles. However, in order to make any such information admissible, what is required to be established by the prosecution is that any Article or such other evidence discovered during the investigation of a case in consequence of information supplied by the accused connects him with the crime. The information supplied by one accused in this case led to another accused which in consequence of the information supplied by the latter, led to the discovery of incriminating evidence against him, connecting each of them with the crime. There being no doubt about the admissibility of such evidence under Article 40 of Qanun-e-Shahadat, the Court was only left to consider sufficiency of such evidence against each of the appellants to connect him with the crime. Such evidence, as pointed out earlier, was therefore, admissible under Article 40 of Qanun-e-Shahadat.

16. It now remains to be considered whether holding of an identification test was a legal requirement in the present case as the objection raised by Mr. Motiani is that the accused were identified by the witnesses after the latter saw them in the Court. Admittedly the accused were not previously known to the witnesses and therefore, according to Mr. Motiani, no reliance could be placed upon the testimony of the eye-witnesses. In this regard, the following cases can be regarded as instructive. In Ismail and another v. The State (1974 SCMR 175) the witness deposing before the Court although was not familiar with the names of the accused at the time of the incident but there was nothing to indicate that the accused were not already known to the witness by face. It was observed by this Court that it was only where the accused were seen for the first time at the time of the incident by a witness that identification test would be necessary. If an accused was already known by face, although not by name, it would be unnecessary to put such witness to any identification test because, at the parade, he would only identify by face and not by name. More or less similar observations were made by this Court in the case of Muhammad Yaqoob v. The State (1989 PCr.LJ 2227). In this case while reliance was placed upon the above case, it was observed that identification proceedings were not the testimony of a witness but the testimony of the sense of the witness. It was essentially a test of his power of observation and perception. A test of his power to recognize strangers and a test of his memory. It was, therefore, held that when the witnesses had seen the offender for the first time during the occurrence and that also briefly and not with a calm but in an excited, confused and terrorised state of mind, it was only in such cases that identification test would be necessary. In Asghar All v. The State (1992 SCMR 2088), identification of the accused in Court one month after the event was not relied upon by this Court as satisfying the requirements of law for proving the indentity of the culprit. In Masood Ahmed v. The State (1994 SCMR 6) testimony of the eye-witnesses was disbelieved on account of reluctance of the complainant and the prosecution as a whole to avoid identification of accused by the witnesses. However, the question as to the identification of the accused in a case of kidnapping by the kidnapee who had seen the accused for the first time, who had not been known to him previously, was examined in detail in State v. Farman Hussain (PLD 1995 SC 1). By a majority view, as per the observations made by one of us (Ajmal Mian, J.), a clear distinction was drawn between the circumstances where the witness only gets a glimpse of the accused who happened to be a stranger to him and where although the witness had met the accused for the first time but he had seen him several times. It was held that in the latter case the necessity of holding an identification parade could be dispensed with and the accused could even be identified in the Court for the first time. In the present case the kidnapee had remained with the accused sufficiently long not only to identify them by their faces but to identify them even by their names.

This is not a case where a witness had only gotten a glimpse of the accused but in this case, admittedly he had remained with them during his captivity and had clearly seen their faces.

Therefore, in our opinion, holding of an identification parade was not a mandatory requirement in the present case. The contention raised by the learned counsel for the appellants therefore, has very little force.

17. Consequently, we are fully satisfied that the prosecution has succeeded in establishing the guilt of all the appellants. The two judgments of conviction and sentence passed against the appellants are based on concurrent findings of fact and there is nothing to indicate that the judgments are based on any error of law or they are opposed to well-established principles of judicial approach or they can in any manner be characterised as unjustified.

18. In the result, we find no force in these appeals and the same are, therefore, dismissed.