' NAZIM HUSSAIN SIDDIQUI, J.--- This appeal is directed against the judgment, dated 9-6-1994 of Mr. Rafiq Ahmed Awan, the then learned Judge Special Court III, (S.T.A.), Karachi, whereby the appellants were convicted and sentenced as follows.
2. Appellants Muhammad Ashfaq alias Chief, Javed Kazmi and Haji Jalal were convicted under section 367/149, P.P.C. And sentenced to suffer R.I. For 10 years and to pay fine of Rs,5,000 each or in default thereof to suffer R.I. For further period of one year, convicted under section 17(3) of Enforcement of Hudood Ordinance and sentenced to suffer R.I. For ten years and to pay fine of Rs,5,000 or in default thereof to suffer R.I. 'for further period of one year, convicted under section 324, Qisas and Diyat Ordinance read with section 149, P.P.C. And sentenced to suffer R.I. For seven years and to pay fine of Rs,5,000 or in default thereof to undergo R.I. For one year and also convicted .Under section 148, P.P.C. And sentenced to suffer R.I. For three years and to pay fine of Rs,5,000 each or in default thereof to suffer R.I. For six months. All the sentences were to run consecutively. The benefit of section 382-B, Cr.P.C. Was extended to them.
3. The absconding accused Altaf Hussain, Saleem-ul-Haq alias Saleem Shahzad, Dr. Imran Farooq, Dr. Safdar Baqri, Asghar Chacha, Sajid Azad, Arshad Naeem, Ashraf Zaidi, Ismail Qureshi alias Sitara, Aftab Ahmed Sabziwala, Ayub Shah Medical Storewala, Yousuf Bakery Wala, Nadeem Ayubi, Sarfraz and Akram were convicted under section 367/149, P.P.C. And sentenced to suffer R.I. For ten years and to pay fine of Rs,10,000 each or in default thereof to suffer R.I. For further period of one year, convicted under section 324/149, P.P.C. And sentenced to undergo R.I. For seven years and to pay fine of Rs,10,000 each or in default thereof to suffer R.I. For further period of one year, and also convicted under section 17(3), Enforcement of Hudood Ordinance and sentenced to undergo R.I. For ten years and to pay fine of Rs,10,000 each or in default thereof to suffer R.I. For further period of one year. All the sentences were to run consecutively.
4. The prosecution case, in brief, is that complainant Maj. Kaleemuddin on 20-6-1991 at about 9-20 p.m. In compliance of the order of Commander Muhammad Saleem Khan and Col. Kazim Hussain Shah had gone to Landhi in Jeep No,GS-8734, on facts finding mission, alongwith his subordinate staff consisting of Hay. Moinuddin, L/NK Muhammad Yaseen, and Sepoy Nisar Ahmed. On the way they picked up one Abdul Rashid to guide them. When they were in the area of Police Station Landhi 15/20 boys, duly armed with deadly weapons, surrounded their jeep and despite the fact that the complainant had disclosed his identity, they forced him and his staff to come down from the jeep. Thereafter, those boys started beating the complainant and his companions, and abducted them to a building, which was popularly known as "White House". They were disarmed and all their weapons, documents and cash were snatched. They were taken to a room in said building where they were again beaten by sticks and butts of rifles and were also tortured by various methods including electric shocks. The complainant party noted that, besides them many others were being tortured by applying mechanical devices. According to the F.I.R. The police had reached there and got the complainant and his companion released from the captors. The complainant asserted that he could identify the culprits if produced before him.
5. The investigation of this case was conducted by S.H.O. Muhammad Ahrnad Beg. On the night of incident at the order of S.13., he had gone to the Sector Office of M.Q.M. In Landhi, and met Javed Kazmi, Safdar Baqri, and Shahzad Mirza. He was made to sit in a room and Maj. Kaleem, Hay. Moin, L/NK Yaseen, Sepoy Nisar Ahmed and Abdul Rashid were brought there, who had marks of violence on their persons. 3 SMGs, three magazines, and one brief case were handed over to him. When he reached back the police station Col. Kazim also came there and took the injured to Combined Military Hospital, Malir. The custody of above-named Rashid was handed over to Inspector of Rangers. A.S.-I. Mannan on 24-6-1991 registered the F.I.R. On 1-9-1991, the S.H.O. Was directed to submit charge-sheet. Accordingly, he submitted charge-sheet before A.C.M.III, Karachi-East, for its onward transmission to Sessions Judge, nominating therein four persons namely, Saleem Bhai, Jalal Bhai, Arshad Saleem Bhai, and Kazim Bhai as accused and showing them as absconders. It is significant to note that supplementary charge-sheet was submitted on 5-2-1993 in which Altaf Hussain, Saleem-ul-Haq alias Saleem Shahzad, Dr. Imran Farooq, Rehan Zaidi, Dr. Safdar Baqri, Javed Kazmi, Khalid Murtaza, Haji Jalal Khan, Hassamuddin Jalali, Asghar Chacha, Sajid Azad Nai, Arshad Naeem, Ashraf Zaidi, Ismail Qureshi alias Sitara, Aftab Ahmed Sabziwala, Ayub Shah Farooq Medical Storewala, Yousuf Bakerywala, Nadeem Ayub, Sarfraz Ikram and Muhammad Ashfaque alias Ashfaque Chief were also nominated as accused of this case and were shown absconders.
6. Investigating Officer in cross-examination, admitted that from the date of F.I.R. Till 4-9-1991 investigation of this case remained with him. He frankly admitted that names of Altaf Hussain, Saleem, Shahzad, Safdar Baqri, Imran Farooq, Rehan Zaidi, Akrani, Sajid Azad, Ashraf Zaidi, Arshad Naeem, Khalid Murtaza, Asghar Chacha, Sarfraz, Nadeem Ayubi, Yousuf Bakeriwala, Ayub Shah, Aftab Ahmed and Ismail Qureshi did not at all transpire in the investigation conducted by him..He also admitted that for above reason he did not include their names as accused in the interim challan submitted by him. He even stated that it was not an interim challan, but was final which he had submitted. He also admitted that the statements under section 161, Cr.P.C. Of Maj. Kaleemuddin, Hay. Moinuddin, L/NK Muhammad Yasin, Sep. Nisar Ahmed and Abdul Rashid were recorded by him, and that the above-named witnesses, in their said statements, neither named the absconding accused, nor attributed any role to them.
7. At trial, the prosecution examined Hay. Moinuddin, L/NK Muhammad Yaseen, Maj. Kaleemuddin, Abdul Rashid Khan, A.S.-I. Abdul Mannan and S.-I. Muhammad Ahmed Beg, Capt. Saadat Ali Janjua and Brig. Muhammad Saleem Khan were examined as Court-witnesses. Mr. Zafar Iqbal Cheema, who submitted supplementary charge-sheet on 5-2-1993 was not examined.
8. Following injuries were found on the persons of Maj. Kaleemuddin, Hay. Moinuddin and L/NK Muhammad Yasin:-- Maj. Kaleemuddin
(1) Blunt injury Nose. The nose was swollen and deformed.
(2) Bruises on whole body,
(3) Electric burn marks on shoulder. Hay. Moinuddin
(1) Lacerated wound 2 c.m. Long over right side of chin.
(2) Lacerated wounds over both sides of both the ankles which were bleeding.
(3) Bruises all over the body (blush marks). L/NK Muhammad Yasin
(1) Swelling over right mandible (blunt injury).
(2) Hemotoma on right side of scalp (blunt injury).
(3) Bruise over the back.
9. Charge under sections 120-B. 109, 324, 148, 367, 397, P.P.C. And under section 17(3), Enforcement of Hudood Ordinance was framed against the appellants.
10. At the time of trial Muhammad Ashfaq Chief, Haji Jalal Khan and Javed Kazmi were in custody and the rest were shown as absconders.
11. Appellants Muhammad Ashfaq Chief, Javed Kazmi and Haji Jalal Khan, in their respective statements recorded under section 342, Cr.P.C. Have denied the prosecution's allegations and claimed to be innocent. They examined themselves on oath and also examined Imran Ahmed Khan, Ghulam Hussain, Muhammad Taqi, Ahmed Din, Rizwan Ahmed, Asif Jameel, Muhammad Saleem, Feroza Begum, Safdar Rehman, Iftikhar Alam, Muhammad Arshad, Zia Muhammad, Mir Masood Ali Khan, Muhammad Farooq, Basiruzzaman, as their defence witnesses.
12. The case of the prosecution rests upon the ocular testimony of Maj. Kaleemuddin, Moeen Ahmed, Muhammad Yasin and Abdul Rashid. In order to appreciate the contentions raised on behalf of the appellants, it would be appropriate to give a short resume of the prosecution evidence.
13. Maj. Kaleemuddin deposed that it was his duty to provide informations to the high ups regarding anti-State activities and also about law and order situation prevailing at that time. On 18-6-1991 Hay. Moeenuddin Incharge of Korangi Area, submitted a written report to him that Afaq and Amir Khan, the dissident'of M.Q.M., had arrived at Karachi, and held a press conference in the house of one Younus, who had been a Councillor/M.P.A. It was alleged in said report that after press conference the supporters of Afaq and Amir had captured a few boys of Altaf Group, abducted them, and detained them. Law and order situation had developed and rangers were deployed at various places in Landhi area.
14. On 20-6-1991 at about 10-00 a.m. He (Major Kaleemuddin) alongwith three military personnels had gone to Landhi area. When he reached there, he noticed that so many women, children, and boys were screaming and were complaining about non-availability of water and electricity. Hay.
Moinuddin, L/NK Yousuf, and Sepoy Nisar Ahmed were with him. When they reached near turning of Landhi area,, they found 10 boys, duly armed with automatic weapons there, who asked them to get down from the Jeep, although they were informed that he (complainant) was an army officer.
The complainant party arrested two boys, who later on succeeded in running away. The complainant party proceeded further and saw another group of 15/20 boys and they were being led by appellant Aslifaq Chief. The complainant party was overpowered and they were taken to the building mentioned earlier. Complainant Major Kaleemuddin also deposed that he had seen there Safdar Baqri, Saleem Shahzad and Dr. Imran Farooq. He informed Saleem Shahzad about the conduct of those boys and instead of extending apology the latter gave a full punch to him (complainant). He noticed that about 15/20 boys were there, and were being tortured. He had also seen there Haji Jalal. According to him, he was tortured continuously for about two hours. He was blind-folded, clothes were torn and a generator was brought there. His underwear was removed and he was given electric shocks on hips. He heard somebody saying "Altaf Bhai had directed to kill them, to throw their belonging in the sea and dispose of their dead bodies". He also stated that Saleem Shahzad had conversation on telephone and he ordered Safdar Baqri to kill the complainant party. At this point of time, he requested them to allow them to have ablution. He also deposed that within 5. Minutes Saleem Shahazad changed his decision and asked his companions not to kill the complainant party. S.H.O. Landhi Ahmed Beg reached there and rescued ,the complainant party. Arms and ammunition snatched from the complainant party were returned back. He was medically examined at C.M.H. And after his medical examination on 21-6-1991 he again came back at police station and Col. Kazim was already there. Both he and Col. Kazim whole day kept on trying to get the F.I.R. Registered, but with no result. Again on 22-6-1991 they attempted to get the F.I.R. Registered, but without success. Likewise, on 23-6-1991 the case was not registered.
He claimed that on 23-6-1991 in the evening his report was written on a white paper and it was a Katcha report. On 24-6-1991 at 12-30 noons the F.I.R. Was registered. He admitted his signatures on the F.I.R.
15. In cross-examination he admitted that whatever he stated, in examination-in-chief, the same was not mentioned in the F.I.R. He has admitted that in the F.I.R. The names of Altaf Hussain, Saleem Shahzad, Imran Farooq, Safdar Baqri and Ashfaq Chief are not mentioned. He also admitted that personally, he had not made any complaint to high officers including S.P., D.I.-G., I.-G. And Home Secretary about detailed statement of the incident, which he allegedly dictated to one A.S.-1. He admitted that it was in his knowledge that on 19-6-1992 operation clean up was started by Pakistan Army in Sindh, and lie had not made any complaint to the authorities involved in said operation to redress his grievance for not recording his F.I.R., in the way he liked and for not holding proper investigation, nor requested for its reinvestigation. He showed his ignorance, if supplementary charge-sheet in this case was submitted on 5-2-1993. He stated between the period 19-6-1992 to 5-2-1993 his further statement or any other statement, in connection with the incident, was not recorded by any police official. He denied the suggestion that he was directed by high officials to make such statement for providing justification to the operation clean up started on 19-6-1992. He admitted that it was not mentioned in the F.I.R. That electricity and water supply in the Landhi area, known as Mohajir KheL.Were disconnected. He admitted that he had not mentioned that he had seen Javed Kazmi in the light of vehicle, when it was surrounded by 15/20 boys. He also admitted that had not mentioned in the F.I.R. That in said building he had seen Dr. Imran Farooq, Saleem Shahzad and Safdar Baqri. He also admitted, that he had not mentioned in the F.I.R. That when he asked Saleem Shahzad that what was going on, instead of replying in a polite way, he got up and gave a fist blow to him. He also admitted that it was not mentioned in the F.I.R. That Dr. Imran Farooq, Safdar Baqri, Haji Jalal Ashfaq Chief and Javed Kazmi tied the complainant party with the poles. He also admitted that it was not mentioned in the F.I.R. That witk a generator he and his companions were given electric shocks. He also admitted that he had not mentioned in the F.I.R.
That he heard somebody talking on telephone that Altaf Bhai had given direction to kill all the members of the complainant party.
16. P.W. Hay. Moinuddin, in examination-in-chief, deposed on the lines, the evidence of Major Kaleemuddin was recorded. In cross-examination, he deposed that he had not seen those boys before the incident, although he remained posted in the Landhi area for 1-1/2 years. He claimed that he could identify, if they were produced before him. He admitted, he had not seen the boys, who snatched his arm and ammunition. He stated that due to dark in the area, P.W. Rashid was taken to lead the complainant party to Mohajir Ithel. He stated that he could not give the names of the workers who tied his hands and chained him with the poles. According to.Him, there were 17 boys as workers.
17. P.W. L/NK Muhammad Yaseen admitted, in cross-examination, that three accused who faced trial was not present, when jeep of the complainant party was stopped and surrounded. He also stated that he could not say as to who had snatched the weapon from him. He deposed that he could not identify the persons who gave beating to Maj. Kaleem. He also stated that arms and ammunitions belonging to complainant party were snatched when the jeep was surrounded, and the documents and other articles were snatched in the hall of said building. He deposed that the persons who gave them beating were not present in the Court, when the case proceeded.
According to him, after the incident till 20-5-1993 he remained in Lahore. He stated that he did not know anyone among those 16/17 persons, who were in the hall.
18. P.W. Abdul Rashid Khan, in examination-in-chief, stated that he is a brother of Younus Khan, who was Ex-M.P.A. He also stated that his brother had differences with M.Q.M. Altaf Group. In cross- examination, he admitted that on the night of incident, he reached Police Station Landhi, after the incident at about 3-00 a.m. Or 4-00 a.m. And remained there up to 6-30 aim. According to him, he was taken by the Rangers from the police station to an unknown place. Further, he stated that he remained with the Rangers for one month. Also he deposed that after he was released by the Rangers, he remained at Quetta, Islamabad, Lahore and other places. He stated that his statement was recorded in this case in the year 1993. He admitted that he and his brother Muhammad Younus had affiliation with M.Q.M. Haqiqi. He also admitted that he had not stated before the police that electric supply of the area had been disconnected. He also admitted that he had not stated in his police statement that Ashfaq Chief, Haji Jalal, Ismail Tara, Ashfaq Zaidi, Nadeem Yousufi, Javed Kazmi, Imran Farooq, Rehan, and 60/70 other persons were also present in the hall. He mentioned that he had not stated before the police that the names of above persons were known to him. He also mentioned that he had not stated before the police that Ashfaq Chief, Javed Kazmi and Haji Jalal, repeatedly came and gave him beatings. He also deposed, that he had not stated before the police that Saleem Shahzad had abused Maj. Kaleem and repeatedly made inquiries about Afaq, Amir and Younus Khan. He also mentioned that he had not stated before the police that Haji Jalal, Ashfaq, Javed Kazmi, Safdar Baqri, Saleem Shahzad had given him shocks with a generator.
19. Maj. Saadat Ali found injuries on the person of P.Ws. As mentioned earlier.
20. P.W. Muhammad Saleem Khan who was Commander Mehran Rangers, in June, 1991, deposed that at that time he was working as Deputy Force Commander. He deposed about the conditions prevailing in Karachi, particularly in Landhi area. According to him on 18-6-1991 Afaq and Amir held a press conference in the area of Landhi Mohajir Khel and levelled serious allegations against Altaf Hussain, Chairman of M.Q.M. He deposed that after said conference, it was reported that M.Q.M.
Haqiqi had kidnapped 10 workers of M.Q.M. And that it was a case of infighting within an organizations. According to him, on 18/19th June, 1991 intermitted firing kept on going in Landhi 3 and Mohajir Khel area. He further deposed that he was informed that it was necessary for deploying troops in Landhi 3, and Mohajir Khel area, in order to stop said infighting. On 20th June, 1991 at 9-00 p.m. He asked Maj. Kaleem to go into the troubled area, and assess the situation himself and report to him. On the night of incident, he was informed that the complainant and his team had been kidnapped by the M.Q.M.
21. In cross-examination, he deposed that the Investigating Officer knew his name prior to the lodging of the F.I.R. He deposed that the complainant reported to him the whole incident orally and did not give him any complaint in writing. He maintained that he investigated the matter, but did not meet the S.H.O., Landhi for getting the F.I.R. Registered. He stated that S.S.P. Salman Syed was Ex- Army Officer of Punjab Regiment. He stated that he did not give any report in writing to S.S.P., giving the names of any of the culprits with reference to the above incident. He admitted that Col. Kazim and Maj. Kaleem did not report this matter to him in writing regarding not lodging the F.I.R. 1-le deposed that he had seen the F.I.R., which was supplied to the complainant on 24-6-1991. He stated that the complainant had not signed the F.I.R. Under any coercion or threat. He deposed that the complainant did not give him details in writing to the effect that he was brought from the torture cell by S.H.O., Landhi. He deposed that he did not take up the matter with civilian authorities that the F.I.R. Was sketchy and did not include all. The facts. He also deposed that he did not take any action for one year until clean up operation was started on 19-6-1992. He stated that authority of Pak Army was stifled due to political expediency of the then Provincial Government. He also stated that in spite of above facts, the matter was discussed with the then Chief Minister late Jam Sadiq Ali, but the latter did not consider it appropriate to take any action. He also stated that .He was not aware that whether any action was recommended against the Investigating Officer in this matter. He stated that he had not visited the place of occurrence up to 19-3-1994, when his statement was recorded. He stated that a sketchy F.I.R. Was recorded, as its registration was being resisted by the M.Q.M. Leaders.
22. Before dealing with the submissions of learned counsel for the appellants, we consider it necessary to point out that this appeal was admitted on 13-2-1995 by a Division Bench of which one of us (Nazim Hussain Siddiqui, J.) was a member. Mr. Abdul Ghafoor Mangi, the then learned Advocate-General had challenged the maintainability of appeal on the ground that, appellants Nos.4 to 19 being absconders and fugitive from law, the appeal filed on their behalf was not maintainable in view of section 5-A(7) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, hereinafter called the Act. The appeal, however, filed by the appellants was admitted for regular hearing with an observation that the question of maintainability of the appeal of absconders would be decided at the time of regular hearing.
23. Subsection (4) of section 5-A Of the Act provides that accused may be tried in his absence if the Special Court, after an inquiry, is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice. Proviso of this subsection provides that the accused shall not be tried unless a proclamation in accordance with the provisions of section 87 of the Cr.P.C. Has been published in respect of him and until the proclamation has been published in at least 3 national daily newspapers out of which two shall be in Urdu. Second proviso of this subsection provides that Special Court shall proceed with the trial after taking necessary steps to appoint an Advocate to defend the accused person, who is not before the Court. Subsection (6) of section 5-A provides that an accused, who is tried in his absence under subsection (4), shall be deemed not to have committed any offence for which he has been charged. Subsection (7) provides that if within 60 days from the date of his conviction the person tried under subsection (4) appears before the Special Court voluntarily, or his apprehended and brought before the Special Court and proves to its satisfaction that he did not abscond or concealed himself for the purpose of avoiding the proceedings against him, the Special Court shall set aside the conviction and proceed to try him for the offence for which he is charged. Proviso of this subsection provides that the Special Court may exercise its power, after the expiry of the aforesaid period, if the person appears before it and satisfies it that he was prevented from appearing, within the said period by circumstances beyond his control. Section 7(1) of the Act provides that a person sentenced by Special Court shall have a right of appeal to the High Court.
24. A bare perusal of aforesaid section reveals that the Legislature has taken care even to safeguard the interest of absconding accused and all possible steps have been taken in that regard. This is evident from the fact that an Advocate is to be appointed, at the Government expenses, for the accused, who is not present before the Court. Not only, this, in subsection (6) it has been provided that in case of trial in absence of the accused, it shall be presumed that he has not admitted all the allegations made against him. This, in fact, means that the accused has denied all the allegations, despite the fact that his statement under section 342, Cr.P.C. Has not yet been recorded.
25. In General Law under section 512, Cr.P.C. Deposition of witnesses is recorded in absence of accused, and such deposition could be given in evidence at the time of trial after he was arrested.
Thus, it would be seen, in general law, the case is to be tried in presence of the accused and in his absence except recording the deposition of witnesses as provided under section 512, Cr.P.C.
Nothing else could be done. This case was tried under the special law, and it permits trial in absence of the accused. Therefore, the case-law relating to. The point of absconsion with reference to general law, would not be applicable to the cases tried under the Act.
26. The appeal is a fundamental right and is a continuation of proceedings, when a person can be tried in absentia, there is no reason as to why his appeal could not be heard as such. The word "trial" includes proceedings in appeal. For this reference can be made to the case of Indian Jurisdiction i,e, State of Madhia Pradesh v. Mohandas 1992 Cr.LJ 101 at 104 and 105. In fact, in the Act two rights have been provided to the accused. Firstly, he can appear before the Special Court and explain his absence, and if satisfactory explanation is offered, the Court would set aside the conviction and would proceed afresh. Second right is under section 7 of the Act. He can prefer appeal before the High Court. It is pertinent to point out that, in section 7 of the Act, the words used are "shall have a right of appeal". It means that an accused can, after conviction, prefer appeal to the High Court, despite the fact that he remained absent before the trial Court. The only difference would be that if he appeared before the trial Court, he would have right for fresh trial and could take all the pleas in defence available to him, while in case of appeal only the material available on record would be examined. Nothing is provided in section 7 of the Act that, before preferring appeal, the accused was required to surrender before the Appellate Court. In the case of Muhammad Aslam and 5 others v. The State 1972 SCMR 194, Honourable Supreme Court in a murder case after having recorded the finding to the effect that prosecution had failed to prove its case beyond reasonable doubt acquitted all the appellants including one, who during pendency of appeal, had absconded away and his acquittal was recorded in absentia.
' In another case reported as Muhabbat Ali and another v. The State 1985 SCMR 662. Honourable Supreme Court while setting aside conviction of the appellant recorded under section 302/34, P.P.C.
Also set aside the conviction of non-appealing convict and ordered for his acquittal. In the case of Ghulam Bari v. Waqar Zaheer and others PLD 1991 SC 447. It was held by Honourable Supreme Court that benefit of acquittal can also be extended to the non-appealing convict for the purpose of doing complete justice.
27. Accordingly, we hold that the appellants have legal right to file this appeal.
28. Learned counsel for the appellants have assailed the impugned judgment on legal grounds and on merits as well.
29. We first propose to dispose of the legal pleas. Mr. I.A. Hashmi learned counsel for the appellants contends that three national newspapers, as required under first proviso of subsection (4) of section 5-A of the Act, are not available on record of the trial Court, and since it is a mandatory requirement, the trial stands vitiated. It is noted that the trial Court/Special Court, on 4-3-1993 had passed an order under section 512, Cr.P.C. And also for proceedings under sections 87 and 88, Cr.P.C. Against the absconding accused at Serial Nos.4 to 19. Trial Court had also appointed Mr. I.A.
Hashmi as defence counsel for absconding accused at Government expenses. Direction was also issued to the office for issuing proclamation for publication in three daily newspapers at least two of them were to be in Urdu, with a further direction that the name of the defence counsel (Mr. I.A.
Hashmi) was to be disclosed in those publications. Precisely stated the plea of Mr. Hashmi is that newspaper is not available on the file of trial Court. He has not argued that those.Publications were-not made. When asked that he was a defence counsel at Government expenses, why he had not brought this fact to the notice of the trial Court, he replied that it was duty of the prosecution, and that till today, he was not aware if the proclamation was actually published or not. Mr. Hashmi is the Advocate of choice of the appellants, as he has preferred appeal on their behalf before this Court. It being so, we hold that no prejudice was caused to the appellants and appeal would be decided on its merits.
30. Mr. A.Q. Halepota and Mr. Hashmi both argued that sections 120-B and 367, P.P.C. Are not "scheduled offences" within the meanings of "scheduled offences", as appearing in section 2 of the Act, as such, the Special Court was not competent to proceed for said offences. They also argued that section 397, P.P.C. Is not a substantive offence and charge under said section could only be framed alongwith sections 394 and 395, P.P.C., which was not done.
31. It is noted that if the Court was to think that the accused might have committed the offence it could frame the charge. At the stage of framing charge, probative value of the material on record cannot be gone into. To constitute a criminal conspiracy there must be an agreement of two or more persons to do an act which is illegal, or which is to be done by illegal means. Suffice it to say that no material was brought on record to attract section 120-B, P.P.C. Section 367, P.P.C. Is also not attracted as there is no material to show that alleged abduction was for causing grievous hurt.
32. Section 397 does not create any substantive offence but it accomplishes sections 392 and 395, P.P.C. In its nature it is a rider to section 394, P.P.C. It C appears inadvertently instead of mentioning section 394/397, P.P.C. Only section 397, P.P.C. Was referred. Section 394, P.P.C. Is a scheduled offence. Learned Advocate-General however, concedes that sections 120-B and 367 are not scheduled offences.
33. Learned counsel for the appellants have argued that section 17(3) of Enforcement of Hudood Ordinante, 1979 is also not a scheduled offence, and the same could not be tried by the Special Court. This proposition is also not disputed by learned Advocate-General. Mr. Halepota also argued that subsection (3) of section 17, Enforcement of Hudood Ordinance is attracted when a person is guilty of "Harabba" in the course of which no murder was committed, but the property as mentioned in subsection was taken away. In this regard, he referred to the deposition of P.W. L/NK Muhammad Yaseen3 who deposed that 15/20 persons armed with deadly weapons surrounded the jeep of the complainant party and snatched the weapons lying therein, and that they had beaten the complainant party. The witness specifically admitted, in cross-examination, that three accused, who were in custody at the time of trial, were not present on the spot when jeep was stopped and surrounded. Further, he deposed that he could not say as to who had snatched the weapons from the complainant party. He also admitted that he could not identify those persons, who had given beating to the complainant.
34. Mr. Halepota submitted that the identity of indictee is absolutely necessary and the present appellants could not be indicted. The contention is sound. In view of the present evidence, section 17(3) of Enforcement of Hudood Ordinance is also not attracted.
35. On merits Mr. A.Q. Halepota argued that how it could be possible that four army/ranger officers could be disarmed of their most sophisticated weapons by street boys. He also argued that there was no firing, no injury, or death on the spot. He contended that ex facie, it was a cooked up case against all the M.Q.M. Leadership and that the prosecution had decided to rope in all the important M.Q.M. Leaders after two years of the incident. He submitted that no recovery of any incriminating article was made, as no such article was produced before the trial Court.
36. Merits of the case are to be decided on the basis of evidence available on record. The rules of evidence prescribe the best course to get truth. In criminal cases much higher degree of assurance is required and it is the basic requirement of law that there must be clear and unequivocal proof that the offence was committed by the known persons. Decision in criminal case cannot be based upon mere supposition, but it must rest upon legal grounds established by legal testimony. The rules of evidence cannot be departed on the basis of moral conviction. The rule of oral evidence requires that best available evidence must alone be given, and while dealing with oral evidence probabilities, presumptions, and surrounding circumstances shall always be looked into. This is necessary for the reason that, more often than not, such evidence is mixture of truth, falsehood, ignorance and motive etc.
37. Keeping in view, the above principles, it is noted that the evidence of abovenamed eye- witnesses does not inspire confidence. They all had tried to improve the prosecution's version. In fact, it would, be more appropriate to say that at the time of trial, they set up entirely a different case, than initially it was.
' The evidence of the complainant is full of contradictions omissions and improvements. The witness who has gone to the extent of even disowning the F.I.R. In material respects in order to justify his newly-introduced facts, cannot be relied upon. It is very hard to believe that army officers could be disarmed by street boys. The complainant admitted his signatures on the F.I.R., yet, he asserted that it was not as he wished it. He maintained that his further statement was not recorded, while Investigating Officer Muhammad Ahmed Beg stated that so was done.
38. On the basis of F.I.R. The investigation starts. Besides setting in motion the process of investigation another object of F.I.R. Is to ensure as far as possible, that the interest of the accused is protected against subsequent possible variation, addition and improvements. He cannot be taken by surprise at the time of trial. Once the first informant admits his signatures on the F.I.R. a strong presumption arises that it was correctly recorded. In the case reported as Mujahid Hussain v. The state 1985 SCMR 1573 (relevant page 1576, paragraph 9) it was observed by the Honourable Supreme Court that first information report, though per se was not substantive, evidence was nevertheless an important document inasmuch as it disclosed facts of occurrence as initially known, laid down the foundation of the case, and provided clues for investigation. It was also held in this case that when there was discrepancy in number and identity of accused as stated in F.I.R.
And ocular evidence and the explanation by the witnesses being clumsy casting doubt not only on the integrity of the complainant bin also on the veracity of the ocular witnesses themselves, it was possible that the witnesses were not certain as to the number and identity of the accused.
39. As observed earlier, the complainant in his deposition recorded by the trial Court has introduced entirely a different case implicating the appellants, in order to bring it . In conformity with the supplementary challan submitted on 5-2-1993. His grievance was that the F.I.R. Was not recorded properly. Two options were available to him. Either he should have complained immediately against the S.H.O. To the higher authorities in writing in that regard, or should have filed a direct complaint mentioning therein all the facts, which according to him, were not recorded in the F.I.R. Surprisingly, nothing was done. Such type of evidence to say the least, is to be discarded outrightly.
40. Mr. A.Q. Halepota, learned counsel for the appellants cited the case of Shah Ali and others v. The Crown reported in PLD 1954 Sindh 136 to contend that when different sets of evidence are available and none of them was acceptable without corrobration, the evidence which requires corroboration cannot corroborate each other. Mr. A.Q. Halepota, learned counsel for the appellants also cited the case of Syed Saeed Muhammad and another v. The State 1993 SCMR 550 to submit that statements of witnesses in the Court in which improvements are made to strengthen the prosecution case are not worthy of reliance. Above case supports his contention. Also, it is very hard to believe that for four days the compiainant and his superior officers were not able to get the F . I .R . Registered.
41. The complainant in his deposition stated that while he was in the custody of the abductors he heard somebody saying "Altaf Bhai had directed to kill them, throw their belonging in the sea, and dispose of their dead bodies". The evidence learnt through the medium of a third person is called hearsay and ordinarily such evidence is not admissible for the reason, amongst others, that such statement is not subjected to cross-examination. In the instant case, neither the complainant knew said person, who uttered above-quoted words, nor any evidence was brought on record to identify said persons, nor those words were addressed to the complainant. In fact, he introduced these words as improvement to implicate the appellants, who were not charge-sheeted initially.
42. Evidence of P. Ws. Moinuddin, Muhammad Yasin, Abdul Rashid and Muhammad Saleem Khan more or less suffers from same defects as that of complainant. Their testimony like complainant also does not inspire confidence, and has no evidentiary value. First three of them are eye- witnesses and the fourth one viz. Muhammad Saleem Khan has reiterated the newly-introduced prosecution version and tried to justify it.
43. Another totally unbelievable part of the prosecution version is that S.H.O. After getting the victims released did not arrest any of the persons happened to be present there, nor registered any case, nor recorded the statements of other persons who were being tortured, nor informed the police high-ups that how he had reached there. The acts of malfeasance and misfeasance in those days were not to the extent as projected in these proceedings.
44. Mr. Zafar Iqbal Cheema, who submitted supplementary charge-sheet on 5-2-1993 and had allegedly collected evidence against the appellants Nos.4 to 19 was not examined by the prosecution nor it was disclosed at the stage of arguments that what evidence he had collected against them.
45. Injuries mentioned earlier were simple in nature and were caused by unknown boys, who had stopped the jeep. Injuries by themselves are not F sufficient to identify the culprits. Mr. A.Q.
Halepota, learned counsel for the appellants cited (1) The State v. Abdul Karim 1992 SCMR 1445; (2)
Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; (3) Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 and (4) The State v. Muhammad Sharif and 3 others 1995 SCMR 635 and submitted that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of injury, weapon used etc. But this evidence by itself would not connect the accused with the commission of the crime. Abovenoted cases support the contention raised by the learned counsel for the appellants.
46. Mr. Shaukat Hussain Zubedi, learned Advocate-General has not supported the "impugned judgment", and at the same time argued that the case be remanded to Sessions Court having jurisdiction in the matter. He also argued that this case should have been tried by the Sessions Court and not by the Special Court. It is not the case of total lack of jurisdiction. The trial Court had jurisdiction to try cases punishable under sections 394/397 and 307/324, P.P.C. It is noted that this case was challaned initially before learned Sessions Judge, Karachi, East, and by Government Order, dated 11-2-1993 was transferred to the Special Court. Looking to the quality of evidence, no useful purpose would be served by remanding it. Under the circumstances, the accused would be acquitted. Besides, the prosecution cannot take advantage of its own wrong. The maxim "nullus commodum capere protest de injuria sur propria" (having done the wrong cannot take advantage of own wrong) would apply to this case. It is not fair to ask for remand at this stage.
47. It is a case of almost no legal evidence. We are surprised that how on this evidence learned trial Judge convicted the appellants.
48. Since the case of prosecution has failed on its own evidence, we do not consider it necessary to discuss the evidence brought in defence.
49. Under the circumstances, as a matter of right the appellants are entitled to acquittal. On 6-2- 1998 after hearing the arguments we had allowed the appeal, set aside the impugned judgment, and acquitted all the appellants. Appellants Muhammad Ashfaq alias Chief, Jalal Khan, and Javed Kazmi were ordered to be released forthwith if not required in any other case. Appellants Nos.4 to 19 were ordered not to be arrested in this case. These are the reasons for the short order announced on 6-2-1998.