1. ' SHOUKAT HUSSAIN ZUBEDI, J.--- Appellant Waseem alias Asgher son of Muhammad Akram alongwith other absconding accused was tried by the learned Judge, Special Court-I, Suppression of Terrorist Activities, Karachi who by his judgment, dated 27-5-1992 convicted the appellant for an offence under section 365-A/34, P.P.C. And sentenced him to death. The movable and immovable property of the appellant was also ordered to be confiscated to the State. The appellant has challenged his said conviction and sentence under this appeal.
2. ' The case of the prosecution is that on 25-4-1991 at about 10 a.m. Complainant Sarwar Hussain lodged report at Police Station Malir City being F.I.R. Crime No,64 of 1991, wherein he stated that on 24-4-1991 at about 6-45 p.m. While he was returning to his house in his car, at about 7 p.m. He reached Malir Bridge near Muhammadi School where 4 accused persons on two motorcycles stopped him at pistol point. One of the accused pushed him to the adjacent seat and he himself sat on the steering seat. Another accused opened the side door and sat besides him. He had also placed his pistol at his armpit while the complainant was pushed down in his lap. Thereafter, the complainant's eyes were covered after crossing the Drigh Road and he was made to sit on a motorcycle. After a short while, he was brought to a house where three more persons also came there. On the same day at about 10 O'clock in the night, the complainant was released on the basis of a promise that he would pay to them a ransom amount of Rs,1,50,000 for his release. Thereafter, the complainant was again blind-folded and taken near the wireless gate where he was dropped.
3. They also told him that he will get back his car from Bahadurabad area near National College. As such, the complainant recovered his car and thereafter, narrated the incident to his relatives, subsequently, report was lodged by him.
4. ' P.W.2, A.S.-I. Muhabat Sher was the duty officer at Police Station Malir City. The report of the complainant was recorded by him. A copy of this report Exh.6 was sent by him to S.H.O.
5. Muhammad Nawaz while he himself proceeded to the place of Wardat alongwith the complainant.
6. He inspected the place of Wardat and prepared memo. Exh.4 in presence of witnesses P.Ws. Ch. Muhammad Zafar and A.S.-I. Muhammad Abdullah. By that time S.H.O. Muhammad Nawaz also reached the place of Wardat and took over of the case. In the meanwhile reserve Inspector Muhammad Nawaz son of Malik Lal Khan who wa s posted at Headquarters, District East, as called by S.S.P./East on the same day at his office. The S.S.P. Directed im to proceed to Wireless Gate near Airport Police Station and that he sh d pay the ransom amount to any person who comes on behalf of accused Waseem at that place. The reserve Inspector was also briefed about the incident of abduction of the complainant. The said reserve Inspect9r along with a police party which also included P.W. A.S.-I. Tauseef Ahmed pioceeded towards the Wireless Gate at 6-25 p.m. Along with the complainant. It is stated that the present appellant tame on a motorcycle on which another accused Aslam Arain was sitting on the back seat. Accused Aslam Arain had taken out a pistol and kept at on the head of the reserve Inspector from whom accused Waseem demanded the ransom amount. At that time appellant Waseem also had a pistol in his possession. A bundle of papers wrapped in a plastic bag as notes were handed over to the appellant, thereafter the reserve Inspector tried to catch hold of the two accused who immediately started firing at him. According to this witness reserve Inspector Muhammad Nawaz, as he was an expert in Karatemaster and an ex-commando, therefore, he saved himself and also started firing on the accused in his self- defence. By that time two other motorcyclists, who were armed with fire-arms started firing with the result accused Aslam Arain received lntt injury and fell down. The appellant is said to have attempted to run away on foot but A.S.-I. Tauseef Ahmed succeeded in arresting him at the spot.
7. By that time a police mobile Airport Police Station also came there and removed the dead body of Aslam Arain while the custody of the appellant alongwith the recovered weapon was also taken by them.
8. ' On the next day, that is, 26-4-1991 D.S.P. Zafar Iqbal informed S.H.O. Muhammad Nawaz Malik regarding the arrest of appellant and the death of co-accused Aslam Arain. The S.H.O. Concerned immediately proceeded to Airport Police Station where he found the present appellant in custody.
9. He interrogated the accused who admitted of having gone to collect the ransom amount from the complainant. Accordingly, he arrested the accused and made such entry in the Station Diary of his Police Station Exh.12. He had also received the Mashirnama of arrest and recovery of pistol from the present appellant, which was prepared by S.-I. Muhammad Ismail of Airport Police Station, Exh.8.
10. The absconding accused could not be arrested by him. After completing the investigation he submitted the challan.
11. ' At the trial, charge against the appellant was framed as Exh.2 for having committed an offence punishable under section 365-A, P.P.C., to which he did not plead guilty and claimed to be tried.
12. ' In support of its case prosecution examined five witnesses. P.W.1 Muhammad Zafar Iqbal Mashir of Wardat. P.W.2, S.-I. Muhabat Sher who recorded the F.I.R. P.W.3 A.S.-I. Tauseef Ahmed who caught the appellant. P.W.4 complainant Sarwar and P.W.5 S.H.O. Muhammad Nawaz Malik, Investigating Officer. In addition, Court witness reserve Inspector Muhammad Nawaz son of Malik Lal Khan was also examined. Thereafter, vide statement, dated 17-5-1992 the prosecution closed its side.
13. ' The statement of the appellant was recorded under section 342, Cr.P.C. As Exh.14. The appellant denied the prosecution allegation and stated that no P.W. Has deposed against him while A.S.-I.
14. Tauseef Ahmed is found to have given false evidence in respect of which the Court has also issued him a notice under section 193. The appellant neither wished to be examined on oath nor wanted to examine any defence witness. However, he has claimed to be innocent having been falsely implicated in this case, as the police wanted to show their efficiency and get a reward. At the conclusion of the trial, the appellant was convicted and sentenced by the trial Court as already mentioned hereinabove.
15. ' We have heard Mr. Raja Sikandar Khan learned counsel for the appellant and Mr. Ashiq Raza learned counsel for the State. The latter has supported the impugned judgment.
16. ' With the assistance of the learned counsel, we have gone through the entire evidence available on record.' Learned counsel for the appellant referred to the cross-examination of the complainant and pointed out that the complainant has made a massive improvement upon his F.I.R. He is not even aware whether the present appellant was the one who was available in the house where he was detained or that he was amongst the four accused who had initially abducted him or that the present appellant was the one who had come to collect the ransom amount on 26-4-1991. It was further submitted by the learned counsel that the very arrest of the appellant from the scene of offence appears to be doubtful, inasmuch as, the Mashirnama of arrest Exh.8 has not been attested by independent Mashirs but the same has been attested by two Police Officers namely A.S.-I. Tauseef Ahmed and A.S.-I. Asghar Khan. There is no explanation on the record as to why independent witnesses were not called to act as Mashir although the police had prior information regarding the arrival of the accused. He further submitted that at the time of arrest of the appellant, a pistol was shown to have been recovered from his possession but the pistol which was produced in the Court had a different number and, therefore, even the weapon has been foisted upon the appellant. He referred to Exh.8 to show that the pistol was produced by A.S.-I. Tauseef Ahmed and that pistol was of a different number. It was further submitted by the learned counsel that A.S.-I. Tauseef Ahmed has been examined as a witness in this case and in his cross- examination he has admitted that the Mashirnama Exh.8 was prepared at the police station where he had signed it as one of the Mashirs. He, therefore, submitted that such a Mashirnama has no evidentiary value and, therefore, the arrest and recovery of the appellant from the spot is not established. The learned counsel further referred to the cross-examination of A.S.-I. Tauseef Ahmed to show that even the trial Court has observed that the witness has spoken a lie in the Court and in fact it has been mentioned in the deposition that a notice for an offence under section 193, P.P.C.
17. Has also been issued to him as per the order of the trial Court for making false statement in Court.
18. The learned counsel further submitted that there is a material contradiction between the evidence of the complainant, A.S.-I. Tauseef Ahmed and reserve Inspector Muhammad Nawaz regarding the date, time and place of the incident. As such, the case against the appellant appears to be doubtful.
19. ' After carefully going through the evidence on record, we have noticed some peculiar circumstances in this case for which there is no explanation on record. It may be mentioned that the incident is in two parts. Firstly, there was abduction of the complainant on 24-4-1991 which was at about 7 p.m. The complainant is alleged to have been released by the accused after having taken a promise from him that he. Will pay a sum of Rs,1,50,000 for his said release.
20. ' The complainant was actually released on the same day at about 10 p.In. The complainant did not lodge the report on 24-4-1991, but he lodged the report on the following day that is, 25-4-1991 at 10 a.m. The second incident is said to have taken place on 25-4-1991 when the abductors are said to have given a time to collect the ransom amount, on the basis of which the police party proceeded to the appointed place, where one of the culprits died in the encounter and the present appellant is said to have been arrested by the police alongwith a pistol. After going through the evidence of complainant Sarwar, P.W.3, A.S.-I. Tauseef Ahmed and Court-witness reserve Inspector Muhammad Nawaz, we have no doubt in our mind that the present appellant was not arrested from the spot as alleged. In the first instance we may refer to the Mashirnama of arrest and recovery of the appellant which is Exh.8. This Mashirnama Exh.8 pertains to F.I.R. 118 of 1991 regarding the encounter that took place between the police and the accused, and was prepared after the accused was brought to the police station. It clearly means that F.I.R. No,118 of 1991 was lodged after the accused was taken to the police station and thereafter, in that case the appellant was arrested vide Exh.8.
21. This shows that at the initial stage, when the appellant is said to have been arrested at the spot after having demanded the ransom amount and after he was caught by A.S.-I. Tauseef Ahmed, no Mashirnama of arrest of the appellant has been prepared, as no such Mashirnama is available'on the record, therefore, the factum of arrest of the appellant in this case is not proved. There is another very material circumstance in this case which also clearly establishes the fact that there was no occasion for the police to have arrested the appellant as alleged. In this regard the complainant, P.W.4 Sarwar has admitted in his examination-in-chief that after lodging the F.I.R., he went and sat in his office uptil 6-15 p.m. Because the culprits wanted to talk to him at his office, and after they had contacted him,'A.S.-I. Malik Muhammad Nawaz was informed that the culprits were waiting near the Wireless Gate, as such, the said A.S.-I. Came to his office and from there they both went to the appointed place where the culprits were waiting and that they had reached the spot at 6-20 p.m. This admission has been made by the complainant as under:- "After lodging F.I.R. I went to my office and kept sitting there till evening till 6-15 p.m. Because the culprits wanted to contact me at my office, as I had given to them my phone numbers of my office and so also of my residence.
22. ' A.S.-I. Malik Muhammad Nawaz was informed that the culprits had contacted him and they were waiting near wireless gate and he came to my office in plain clothes. Then we both went to the appointed place where the culprits were waiting. We reached near Wireless Gate at about 6-20 p.m. But the culprits were not present."
23. ' The above admission which has been made by the complainant in his examination-in-chief will go to show that uptil 6-15 p.m. The culprits had not contacted the complainant. As such, the culprits, if they had at all contacted the complainant, such a contact must have been made at about 6-15 p.m. Or thereafter and consequently, the police operation, if any, could have taken place after 6-15 p.m. As compared to this, if we look at the evidence of Court-witness, Muhammad Nawaz, we find that in his cross-examination he stated that on 25-4-1991 he was summoned by the S.S.P./East and the time was in-between 2 and 3 p.m. And thereafter, the S.S.P. Is said to have given him a bundle of papers and he was directed to go and make the payment of ransom to the person who will come to collect the same. This version obviously appears to be false as the S.S.P./East would not know between 2 and 3 p.m. On 25-4-1991 that the accused would come near the Wireless Gate near Airport Police Station. The reserve Inspector admitted in his cross-examination as follows:-- "I was summoned by S.S.P./East, Karachi on 25-4-1991 but approximately it was between 14-00 hours to 15-00 hours."
24. ' It may further be pointed out that according to the complainant it was A.S.-I. Malik Muhammad Nawaz to whom he had informed and the complainant had further stated that the said A.S.-I.
25. Came to his office and thereafter, they both proceeded to the place of incident. Surprisingly, if we look at the evidence of P.W.5 Malik Muhammad Nawaz, he on the contrary stated that he received the very information about the arrest of the accused on 26-4-1991 and this witness S.H.O. Malik Muhammad Nawaz is completely silent about having received any information from the complainant on 25-4-1991 or that he had gone to his office. Apart from it, according to P.W.3, A.S.-I.
26. Tauseef Ahmed when he reached the place of Wardat near the Wireless Gate, he saw that the complainant Sarwar was sitting in a car alongwith Inspector Muhammad Nawaz and according to him, the appellAnt was arrested at the spot and a pistol was recovered from his possession. In his cross-examination, he was confronted with the Mashirnama Exh.8 and the pistol which was producedin the Court, in order to establish that in the Mashirnama, the number of pistol mentioned was different than the number of the pistol produced in the Court. There is no evidence on the record in the shape of any Mashirnama to show fromwhere the accused was arrested. Even time of arrest is not mentioned in any Mashirnama. Incidentally, it is worthnoting that the 161, Cr.P.C.
27. Statement of this witness P.W. A.S.-I. Tauseef Ahmed has been recorded after 10 days of the incident as admitted by him in his cross-examination. Another admission which has been made by this witness also does not fit in with the other evidence on record. According to this witness, he was called by the S.S.P./East where a meeting took place and he was informed that a person by the name of Sarwar was abducted and that the culprits in that case would be coming today for collecting the ransom amount. In his cross-examination A.S.-I. Tauseef Ahmed, admitted as follows:-- "I had not gone in the office of S.S.P. My S.H.O. Went inside and I was waiting outside so I cannot tell who else was present in the office of S.S.P."
28. ' This admission is contradictory to the very opening part of his examination-in chief, where he had stated about a meeting having been held in the office of S.S.P./East in which he had participated.
29. From the above discussion it is quite apparent that the version given by the complainant in the Court appears to be a massive improvement made by him upon his F.I.R. And very elaboratory the learned defence counsel appearing before the trial Court confronted the complainant with all the omissions made by the complainant. The most important circumstance which has been overlooked by the trial Court is that in the F.I.R., the complainant had not mentioned that the culprits would contact him on telephone or give him the date, time and place where the ransom amount will be collected. If this had been so, the complainant would have definitely stated so in the F.I.R. Then, there is conflict between the evidence of the complainant and reserve Inspector Muhammad Nawaz. Then there is conflict between the evidence of A.S.-I. Tauseef Ahmed regarding the arrest of the appellant and recovery of the weapons as already discussed above. There is no evidence on the record to show the date, time and place of arrest of the appellant. As such after taking into consideration all the aforesaid circumstances, we are of the considered view that since the arrest of the appellant, as alleged by the prosecution in this case appears to be doubtful, specially so when according to reserve Inspector Muhammad Nawaz the appellant actually demanded the ransom from him, whereas according to the complainant Sarwar, the demand was made by the appellant by signs. In the circumstances of the case we are of the view that the conviction and sentence awarded to the appellant is not sustainable.
30. ' In light of our above discussion we allow this appeal and set aside the conviction and sentence awarded to the appellant.
31. ' By a short order, dated 22-12-1993 this appeal was allowed and the appellant was ordered to be released forthWith if not required in any other case. These are the reasons for the same.