IMDAD JAKHRO Versus THE STATE

1. MUKHTAR AHMED JUNEJO, J.- -- Appellants Gul Muhammad, Shaman; Ahmed and Imdad Jakhro were tried with co-accused Nawab Ali Laghari by the Judge, Special Court I, Suppression of Terrorist Activities, Karachi for the offences punishable under sections 365-A and 142 of P.P.C. read with section 34 of P.P.C. in case No.19/1990 which was outcome of F.I.R. No.430/1989 of Police Station Jamshed Quarters, Karachi. During pendency of the trial co-accused Nawab Ali absconded vide evidence of Inspector Sultan Masood Exh.5. Case was ordered on 2-1-1991 to proceed against Nawab Ali under section 512, Cr.P.C. At end of the trial, the appellants were convicted for the offence punishable under section 365-A of P.P.C. read with section 34/109 of P.P.C. and were sentenced to suffer imprisonment for fife. Their movable and immovable property was also ordered to be forfeited in favour of the State. Appellant Imdad Jakhro has filed Criminal Appeal No.36 of 1991 challenging his conviction and sentence while rest of the appellants have filed Criminal Appeal No.37 of 1991 against their conviction and sentence. Both the appeals are proposed to be disposed of under this judgment.

2. According to the prosecution, on 20-10-1989 at about 6-40 a.m. P.W. Karim Gul was waiting for other players in K.M.C. Sports Complex at Karachi, where he came at 6-00 a.m. by his Car No.257-677 which he parked over there He was approached by two of the four culprits who had come in the complex earlier than him at 5-30 a.m. by Car No.288-474. The approaching culprits caught Karim Gul Agha by his arms and made him sit in their Car No.288-474. On seeing all this complainant Wali Aman, who was Chowkidar of K.M.C. Sports Complex went near Car No.288-474 and questioned Karim Gul about his condition. Karim Gul replied that he was being abducted. Wali Aman tried in vain to capture captors of Karim Gul, who was taken away by Car No.288 474 towards Sabzi Mandi through Kashmir Road, with all the four culprits in the car. Such F.I.R. was lodged by Wali Aman at Police Station Jamshed Quarters on 20-10-1989 at 7-40 a.m.

3. After his abduction, Karim Gul was taken to Bungalow No.C-63, Block No.13-D/1 Gulshan Iqbal, Karachi, where he was confined in a room escorted by four culprits. He remained in that condition for two days. On 22 10-1989 at 8-30 a.m. the said Bungalow was raided by a police party headed by S.S.P. Muhammad Bachal Sangri and consisting of D.S.P. Arshad Kayani and Inspectors Sultan Masood Kayani, Aziz Ahmed and others, in presence of Mashirs Khurshid Anwar and Javeed Syeed Naqi. During the raid there was firing from inside the Bungalow. Police returned the fire and threw tear-gas shell inside said Bungalow, which was surrounded by police. After exchange of fire, police overpowered inmates of the Bungalow and got released Karim Gul Agha. Police caught from said Bungalow the appellants and co-accused Nawab Ali Laghari who were armed with arms and ammunition the particulars of which follows:--

(1) One Klashnikov No.B-4843 with two magazines each loaded with 30 rounds from appellant Gul Muhammad.

(2) One gun with plastic body having two big magazines each loaded with 20 rounds and a small magazine bearing No.GS-001293-CL-223 from appellant Shaman Jatoi.

(3) One T.T. Pistol chinese make No.202816 with magazine containing 10 rounds from appellant Ahmed Hajaano.

(4) A small Klashnikov with wooden handle without number loaded with 15 rounds (sten gun) from appellant Imdad Jakhro.

(5) One Klashnikov No.17117448 Chinese make with a magazine loaded with 20 bullets from co-accused Nawab Ali Laghari.

4. In an identification test held on 4-11-1989 under supervision of Syed Shahzada Ali, A.C.M.-XII, Karachi East, the appellants and co-accused Nawab Ali were picked up as culprits. Recovered arms and ammunition were sent with empties recovered from the place of raid, for examination and report to the Ballistic Expert who gave the report Exh.8-A to the effect that Klashnikov No.B-4843 was automatic machine type weapon and the empties were fired through the same. On completion of investigation the appellants and Nawab Ali were challaned, while one Daleep Kumar said to be sixth culprit was shown as absconder.

5. At their trial, the appellants and Nawab Ali Leghari pleaded not guilty to the charge Exh.1, containing the prosecution allegations. During pendency of the case in the Special Court, co-accused Nawab Ali Leghari escaped from the custody. Warrants were issued for Nawab Ali Leghari and C.W. Sultan Masood Exh.5 made efforts for arrest of Nawab Ali Leghari. He came to know that after escape from jail Nawab Ali Leghari had concealed himself at some unknown place and his whereabouts were not known. Sultan Masood produced unexecuted warrants Exh.5-A, the statements of three persons Exh.5-B to 5-D and his statement on oath as Exh.5-E. Consequently the trial Court under an order, dated 2-1-1991 directed the case to proceed in absence of Nawab Ali Leghari under section 512, Cr.P.C.

6. Prosecution examined P.Ws. Wali Aman Exh.4, Khursheed Anwar Exh.2, Syed Shahzada Ali Naqvi Exh.3, Karim Gul Agha Exh.7 and Sultan Masood Exh.8.

7. In their statements Exh.9, Exh.10, Exh.11, Exh.12, appellants Gul Muhammad, Imdad, Shaman and Ahmed respectively denied the prosecution allegations and added that the witnesses had deposed at the instance of police and that the private Mashir and private servant of D.S.P. Arshad Kayani. Gul Muhammad Exh.9 added that on 18-10-1989 he was shopping in Sadar when he was taken by police to C.I.A. Centre, where he was produced before Inspector Rasheed of CIA. and was detained in a room. He added that on 22-10-1989 D.S.P. Arshad Kayani came to him and told him that he was implicated in this case. He added that his finger prints were forcibly obtained. Imdad added that he was the Organiser of Ray Sindh Tahreek for District Shikarpur and he organized a big rally in honour of G.M. Sayed and after public meeting police issued warrants against him and he came to Karachi on 22-10-1989 and while he reached Hyder Manzil police arrested him. He added that he was arrested for political reason and was taken to C.I.A. Centre where he was falsely implicated in this case. Shaman Exh.11 added that on 22-10-1989 he had gone to Hyder Manzil to pay respects to Sain G.M. Syed, when police apprehended him and brought him at the C.I.A. Centre and implicated him in this case. Ahmad added that on 18-10-1989 he had gone to collect some money from Pir Sahib Jhando Sharif who used to reside in Sindh Muslim Housing Society, Karachi and he was picked up from there and implicated him in this case. None of the appellants made statement on oath and no evidence was led in defence.

8. At the conclusion of the trial the trial Court convicted the appellants and sentenced them to imprisonment for life as already mentioned. Hence these appeals.

9. Mr. A.Q. Halepota learned counsel for appellants argued that the only ocular evidence in the case was supposed to come from Karim Gul Aga and complianant Wali Aman, out of whom latter has not supported the prosecution at all although he was shown to have taken part in the identification test held 13 days after the incident. In respect of P.W. Karim Gul Aga learned counsel for the appellants was of the view that his evidence did not deserve being relied upon, because identification of the appellants was never held through him and he had not named the appellants in his police statement and there were innumerable omissions in his police statement which were pointed out. Learned counsel for the appellants further argued that there was not an iota of evidence to show if any money was demanded from the appellants except statement of victim Karim Gul which was inadmissible in evidence. It was also argued that in spite of prosecution allegation that there was exchange of fire at the bungalow raided, no one was injured and all the empties were recovered from inside the bungalow although at the relevant time the police was firing from outside the bungalow. Learned counsel did not want the Court to rely on the evidence of P.W. Khursheed Anwar because he was resident of PECHS and was not person of the locality viz Gulshan Iqbal. It was next argued that no person was examined from neighbourhood of the bungalow raided.

10. Mr. M. Ilyas Khan learned counsel for appellant Imdad Jakhro adopted the arguments of Mr. A.Q. Halepota counsel for remaining appellants and cited case law reiterating the settled principles to be considered before holding the identification test. He also cited case law about onus of proof in a criminal case, in presence of the provisions contained in Section 8 of the Suppression of Terrorist Activities Act, In respect of merits of the case, learned counsel for appellant Imdad argued that there was no scratch on any wall and no empty was recovered from outside the bungalow and no shell of tear-gas was recovered from any place. Learned counsel pointed out a contradiction in the evidence of P.W.s. Khursheed Anwar and Sultan Masood about police party having gone to the bungalow by scaling over the wall or otherwise. It was also argued that alleged encounter went on for some time but surprisingly none was injured. It was further argued that normally the culprits can surrender only when they are short of ammunition but the recovery evidence shows that the culprits were not short of ammunition. It was next argued that the evidence of Khursheed Anwar was unnatural because he could not have gone to meet a friend at 8-30 a.m. when he was a businessman. Mr. Ilyas learned counsel for Imdad further argued that P.W. Khursheed Anwar was resident of P.E.C.H.S. while recovery took place in Gulshan-e-Iqbal and that no witness of the locality was examined. Learned counsel referred to the Mashirnama Exh. 2-C and argued that recoveries had taken place from different places inside the compound of the bungalow and not from person of the appellants. It was also argued that the empties were not produced in the trial Court.

11. Mr. Fareed Ahmed Dayo Advocate for A.-G. Sindh for State, supported the conviction and argued that Mashir Khursheed Anwar was important witness as he was a private person. Learned counsel for State further argued that the witnesses in this case were examined after one year and as such minor contradictions in their evidence are bound to occur.

12. Ocular evidence in this case comes from P.W. Wali Aman Exh.4 and P.W. Karim Gut Agha Exh.7 Wali Aman Exh. 4 deposed that on 4-10-1989 during his duty as Chowkidar in K.M.C. Sports Complex Kashmir Road Karachi, he went on round to swimming pool in K.M.C. Complex and on return he found a crowd of persons who told him that a member of Tennis Club had been kidnapped in a vehicle the number of which was given to him but he did not remember. P.W. Wali Aman further stated that name of the kidnapped person was not given to him.' He had not lodged report with police, as admitted by him. Report with police was said to have been lodged by relatives of the kidnapee. P.W. Wali Aman said all this, although it was he who had lodged F.I.R. Exh. 6-A with police as per P.W. Nurdeen Mubarak who recorded the F.I.R. No.6-A as Duty Officer Jamshed Police Station. Due to negligence of the counsel for State in the trial Court, P.W. Wali Aman was not confronted with the F.I.R. No.6-A who was not produced through him and the same was not supported by him. He alleged that his thumb impression was obtained by police on document Exh.3-B viz. Mashirnama of identification test. He denied if he participated in the identification test before a magistrate. He denied having picked up any person in such test. In this way complainant Wali Aman had given a complete go by to the prosecution case. P.W. Karim Gul Exh.7 deposed that on 20-10-1989 at 8-30 a.m. he was waitisdg for friends in K.M.C. Sports Complex when two persons came to him with revolvers. He accompanied those persons due to fear and found a car parking near his car and two other persons came out from car of the culprits. Karim Gul added that on being asked by the culprits, he took seat in their car and he was escorted by one culprit from each side. Karim Gul claimed to have told Chowkidar of the Stadium that he was being abducted. One of the culprits was said to have aimed his pistol at the Chowkidar and asked him to run away. Karim Gul further stated that when the car started moving, he was asked to lie down on the (sic) on the car (sic) and was put over him and his hands and legs were tied. Karim Gul further stated that he was taken to a bungalow where he was kept for two days by the four culprits, who kept guard in the morning and in the meantime many police officers entered the room where he was lying, and caught hold of the guard. P.W. Karim Gul added that firing continued but he was put in car of a Police Officer. He added that police arrested the culprits from the bungalow raided.

13. Admittedly P.W. Karim Gul did not participate in the identification test of appellants Gul Muhammad, Shaman, Ahmed, Imdad and co-accused Nawab Ali held on 4-11-1989 under supervision of Magistrate Shahzad Ali Naqvi Exh.3. Karim Gul said in cross-examination that no identification parade of the appellants was held. He did not state in his evidence if the appellants were previously known to him. Prosecution wanted evidence of victim Karim Gul Aga to be used against the appellants in absence of the identification test, because the victim pointed out at appellants Shaman and Imdad to be the person who first caught hold of him in the stadium and at appellant Gul Muhammad, to have remained in the car in which he was taken away.

14. In his cross-examination Karim Gul Aga admitted that he did not state in his police statement that the culprits asked him to lay down on floor of the car after the car moved, that one of the culprits sat on his left hand, that there used to be guard over him. He admitted that he was brought to trial Court by a Police Officer. He admitted that police examined him in presence of the appellants, whom he identified while they were in the lock-up. He admitted that in his police statement he mentioned names of some accused at instance of police. He admitted that he did not state in his police statement that Khaman Jatoi and Imdad Jakhro took him away. He did not give face features of the culprits in his police statement, as admitted by him. Karim Gul added that he did not see the appellants firing and that he did not see the persons in other rooms of the bungalow. Karim Gul admitted that he did not state in his police statement that he saw the appellants in the bungalow also. In view of the admissions made, the sole evidence of Karim Gul is not sufficient to maintain conviction of the appellants, when he did not pick up the appellants in any identification parade.

15. Prosecution case is that abduction took place on 20-10-1989 and on the same date recovery took place, but Karim Gul Exh.7 stated that the recovery took place after two days. This is a material contradiction in the case.

16. There is force in the contention raised on behalf of the appellants, that there is no evidence about demand of ransom. P.W. Karim Gul Exh.7, did not state if any of the appellants asked him to arrange for ransom. He deposed that some body informed him that rupees fifty lacs were settled to be paid by his family for his release. This evidence would be inadmissible because the person who gave such information, was not examined as a witness. In this way even if prosecution evidence is taken at its face value, no case under section 365-A of P.P.C. is made out.

17. Rest of the witnesses have not said any thing substantially against the' appellants. P.W. Khurshid Anwar Exh.2 was Mashir of recoveries and arrest. He is not person of the locality as he belongs to P.E.C.H.S. while the recovery took place in a bungalow of Gulshan Iqbal. Syed Shahzada Ali Naqvi Exh.3 was a Magistrate who supervised identification test. In the said test Wali Aman alone was said to have picked up the appellants. Wali Aman did not support this evidence. Sultan Masood Kiyani Exh.5 was the Investigating Officer and, Nadeem Mubarak Exh.6 was the Duty Officer who recorded F.I.R. Exh.6-A. In this way evidence against the appellants is not sufficient for maintaining their conviction.

18. Consequently, we accept Criminal Appeals Nos.36 of 1991 and 37 of 1991 and set aside the conviction and sentence of the appellants and order their acquittal. The appellants be released forthwith if not required in any other case.

19. N.H.Q./1-245/K

20. Appeals accepted.