KHAWAJA HASSANULLAH Versus THE STATE

1. MUHAMMAD ASLAM ARAIN, J. --- Appellants Khawaja Hassanullah son of Khawaja Habibullah, Muhammad Akbar son of Muhammad Akmal, Muhammad Rafique son of Mehtab Ali and Usman Zahid son of Ismat Khan were tried by the Special Court-III (STA) Karachi on charge under Section 365-A read with section 34, P.P.C. Also were tried with them co-accused Syed Muhammad Shahid and Syed Ahmadullah, both having been acquitted and two absconding accused Sajid Kalia and Ellahi Bux. Non- bailable warrants were issued for the arrest of the absconders but the process could not be executed nor their presence secured.

2. By impugned judgment, dated 28-5-1992, the four appellants herein were found guilty of the charge. Appellants Khawaja Hassanullah arid Muhammad Akbar are sentenced to imprisonment for life and fine of Rs.10,000 each and in default to suffer R.I. for two years more. Appellants Muhammad Rafique and Muhammad Usman Zahid are sentenced to R.I. for 14 years and fine of Rs.10,000 each or in default to undergo further R.I. for two years. The co-accused Syed Muhammad Shahid and Syed Ahmadullah are acquitted. For the absconding accused Sajid Kalia and Ellahi Bux alias Wadera, it is directed that they would be tried on the above charge whenever arrested and their case kept on dormant file. Before concluding the judgment, the learned trial Court also passed order regarding the disposal of,property including some cars and a motor-bike. A total sum of Rs.19,89,000 was recovered during the raid and arrest of the accused which was said to be in respect of various sums received by the culprits in more than one case of kidnaping for ransom. Similarly, jewellery and other articles were recovered. In the present case the amount of ransom involved was Rs.5,00,000, which has been ordered to be returned, to the father of the abductee Saleem Zahid. For the remaining amount recovered from the culprits, order for its payment as also disposal of other articles is passed.,

3. Since all the four appeals arise out of common judgment, we propose to dispose of the appeals by single judgment:

4. The prosecution case in brief was that on 10-10-1990, P.W.

5. Muhammad Riaz, who was employed as a driver .with one Zahid Hussain, took the minor boy Saleem Zahid, aged about 12/13 years in a car, for leaving him in New Horizon School. At 8-00. a.m. he dropped Saleem Zahid near the gate of the school and when Saleem Zahid was about to enter the school gate, a I white colour Sunny Nissan Car with Registration No.4854 came and stopped. One person at the driving seat remained seated while two others in the car came out and forcibly dragged Saleem Zahid, put him in their car and drove away. Muhammad Riaz went and conveyed the news to minor Saleem Zahid's father Zahid Hussain, who took Muhammad Riaz to Police Station, Fer'6zabad Karachi and lodged F.I.R. No. 851/90 at 18-20 hours.

6. Soon after the incident, Zahid Hussain was contacted on telephone by the culprits who stated that his minor son was with them and demanded rupees one crore as ransom amount for the release of the boy. Zahid Hussain did not inform the police of the telephonic talk with the culprits, but, as stated, these talks went on for about nine days and ultimately the amount was settled at Rs.5 lacs. Zahid Hussain was each time being warned by the culprits that if police was informed, his son would be done to death.

7. On 18-10-1990 Zahid Hussain carried the amount of Rs. 5 lacs to a place near Board Office, North Nazimabad, Karachi, the place settled where money was to be passed on. Zahid Hussain reached the said place at 9-00 p.m. where he waited for half an hour when two persons came on a bike and asked for the payment of ransom. After satisfying himself from various particulars disclosed by the two persons, who came, the amount of Rs.5 lacs carried in a plastic bag was handed over to them who assured for release of the minor. Zahid Hussain then went home and after about one and half hours his son Saleem Zahid returned back home.

8. During those days, there were various cases of similar nature in the city of Karachi and various agencies were investigating the cases and amongst those was Special Investigation Cell (S.I.C.) Karachi.

9. On 28-5-1991, Court Witness No.3 Imam Bux Taggar, who was Inspector S.I.C., raided a Bungalow No.4-A, 13-D/2, Gulshan-e-Iqbal, Karachi at 6-00 a.m. -and -after exchange of fire arrested appellants Khawaja Hassanullah, Usman Zahid and Muhammad Rafique while one Razzak` who fled from the bungalow, was chased and ultimately killed in encounter with the police. From the three 4rrested accused, one .12 bore repeater gun, a .7 MM rifle and a .9 mm pistol alongwith magazines and rounds were recovered under memo Exha27. During the interrogation, the three accused admitted their involvement in the case as also in other cases of kidnapping for ransom. Accused Usman Zahid led the police and produced a sum of Rs.5,39,000 in presence of Mashirs Muhammad Siddiq and Manzoor Shah. Accused Khawaja Hassanullah led the police to his house in Dastagir Colony and produced a sum of Rs.80,000 which was secured under memo Exh.29. Accused Rafique led the police and produced a sum of Rs.12,81,000 from his house which was secured under memo Exh.30. During further interrogation, the arrested accused disclosed the names of their companions Sajid alias Kalia and Ellahi Bux alias Wadera (both absconders). Their houses were raided and one motor bike was taken into possession from the house of absconder Sajid Kalia under memo Exh.31. The three arrested accused also disclosed the name of accused Akbar to be the other companion whom the police arrested from Gulshan-e Iqbal and recovered one unlicensed TT pistol under memo Exh.32. When accused Akbar was interrogated, he admitted to have received Rs.89,000 as his share of the ransom amount and led the police to his house and produced Rs.89,000 which was secured under memo Exh.33.

10. During investigation, name of one Jaffar was also disclosed who was father-in-law of accused Razzak (killed during encounter with police after a chase). Said Jaffar was interrogated alongwith one Ayoob and at their pointing, jewellery golden ornaments and imitation jewellery were recovered from Bungalow No.4-A, Block 13-D/2, Gulshan-e-Iqbal, Karachi under memo E.,.34. Three cars were also recovered from the possession of accused Rafque from a bungalow in Block-1 of Gulshan-e-Iqbal. These cars were said -to be the property of some other cases.

11. It may be pointed out that the investigation of the case was transferred to Special Investigation Cell on 1-7-1991 whereas the raid was conducted on 28-5-1991, when above accused were arrested and they were handed over to the Investigating Officers of various police stations where similar F.I.Rs. of kidnapping for. ransom were recorded. The four appellants abovenamed,alongwith the acquitted accused Syed Muhammad Shahid and Syed Ahmadullah were identified in an identification test held on 6-7-1991 through abductee Saleem Zahid. On the basis of investigation carried on, the challan was submitted against the six accused named above, while two accused were shown as absconders.

12. Charge was framed against the appellants, the two acquitted accused and the absconders Sajid Kalia and Ellahi Bux. The six accused present before the Court pleaded not guilty to the charge and claimed trial.

13. Prosecution examined P.W.1. Muhammad Riaz (complainant) (Exh. 11) who produced F.I.R. (Exh.12),. Mashirnama of Wardat (Exh.13), P.W.2 Saleem Zahid (abductee) (Exh.14), P.W.3 Zahid Hussain (father of the abductee) (Exh.15), P.W.4 Raja Muhammad Ghous, S.H.O. Police Station Ferozabad (Exh.16), P.W.5 S. Niaz Hussain Shah, A.C.M. No.10, Karachi (Exh.18) and he produced memo of identification parade (Exh.19) and the application of Investigating Officer for holding the identification test (Exh.20), P.W.6 Saeed Ahmad Khan a Police Head Constable (Exh.21) who produced memo-of arrest of accused Syed Muhammad Shahid whose arrest was effected at the pointing of accused Usman Zahid (Exh.22), a Roznamcha entry (Exh.23). The trial Court examined Court Witness No.l Saeed Ahmad (Exh.2) who was deputed to execute the non-bailable warrants against the absconders, Court witness No.2 Raja Muhammad Ghous (Exh.25), Inspector Police, on the point that Akmal Butt, M. Jehangir and Rana Shahzad Ali who were also arrested, were found innocent during interrogation and were released under section 169, Cr.P.C. under report C.W.2/A and Roznamcha Entry No.35. Court Witness No.3 examined by the trial Court was Imam Bux Taggar; Inspector S.I.C. Karachi (Exh.25) who had partly conducted investigation of this case. He produced Mashirnamas of arrest of various accused and recoveries (Exhs. 27 to 34). Thereafter, the prosecution closed its side under statement (Exh. 36).

14. The statements of accused under section 342, Cr.P.C. (Exhs.37 to 42) were recorded and they denied the allegations against them. Some of the appellants claimed that the money allegedly recovered was not the ransom amount or a share thereof, but the same was the money which their parents had saved for the marriages of their daughters, etc. The arrest during raid on a bungalow in Gulshan-e-Iqbal or recovery of weapons from them was also denied. As to their having been picked out in the identification parade, it was stated that P.W. Saleem Zahid was taken to the S.I.C. Cell where they were shown to him and even before the actual test was held the witness had seen them outside the Court. Such protest according to the accused was lodged with the Magistrate who took no notice of the same.

15. All accused examined themselves on oath in their defence and gave the details as to how they were arrested and falsely implicated in this case. Appellant Akbar examined D.Ws. Munawar Ali Khan and Muhammad Akmal Khan. Appellant Usman Zahid examined D.Ws. Muhammad Jaffar, Mst. Noreen Bano and Nawab Ali Shaikh. Acquitted accused Syed Ahmadullah examined D.W. Aminullah alias Zahid. Appellant Khawaja Hassanullah examined D.W. Mustajab Anwar and Mst. Hajran Habib.

16. On assessment of evidence, the four appellants herein are convicted as stated above while accused S. Muhammad Shahid and S. Ahmadullah are acquitted. '

17. We have heard the learned counsel for the appellants, except Mr. Hatif Khudai Ansari who neither appeared nor argued the appeal on behalf of appellant Usman Zahid. The main contentions raised on behalf of the appellants are, that there is no reliable evidence on record to connect appellants with the abduction of Saleem Zahid on 10-10-1990; that there is no y evidence that either of the appellants demanded and received ransom for .release of the abductee; that there is no evidence of wrongful confinement of abductee by anyone of the appellants; that identification parade is not worthy of credit ' and for that the evidence of the abductee or Magistrate who supervised the test does not inspire confidence as the parade was in violation of the rules laid down in the case of Lal Pasand PLD 1981 SC 142; the evidence of complainant Muhammad Riaz is of no consequence as he neither gave the particulars of three culprits who abducted Saleem Zahid nor he was called for the identification-of the accused and even in Court during trial, he refused to identify anyone of the six accused being tried, to be amongst the abductors; that the evidence of abductee Saleem Zahid is also not free from doubt inasmuch as, the identification memo shows that he had picked out four appellants and the two acquitted accused, while in Court he identified four appellants only; that the accused were arrested on 28-5-1991 during a raid on a bungalow in Gulshan-e-Iqbal and the identification test was held on 6-7-1991 i.e. 38 days after arrest of the accused and after about nine months after the incident; that the names or number of the dummies is not given in the identification memo; that there is no tangible evidence on the point of payment of ransom amount of Rs.5,00,000 by P.W. Zahid Hussain/father of the abductee; that the Mashirs Muhammad Iqbal and Siddiq, joined during arrest and recovery proceedings were both not examined, rendering such evidence as of no legal effect; and lastly that recovery of different amounts from some of the appellants allegedly at their pointing is not conclusively proved to be a part of the ransom amount shared by the appellants. The contention of the learned counsel further is, that the evidence in a case where accused are charged for capital offence, has to be trustworthy, free form taint and if seen from any angle, leading to the only conclusion that accused were guilty of the charge beyond any shadow of doubt. The above contentions were raised by Mr. A.Q. Halepota, learned Advocate for the appellant Khawaja Hassanullah which are adopted by Mr. I-A. Hashmi and Mr. Khawaja Naveed Ahmed, Advocates for appellants Muhammad Akbar and Muhammad Rafique. As mentioned above, Mr. Hatif Khudai Ansari, Advocate did not appear for appellant Usman Zahid but the senior counsel like Mr. A.Q. Halepota addressed us at some length for said appellant as well, and argued that case of appellant Usman Zahid was also identical and the same contentions would cover his case as well.

18. Mr. M. Sarwar Khan, learned AA.-G. took us through the evidence of the abductee Saleem Zahid and argued that his evidence alone was sufficient to warrant conviction which needs no interference by this Court as the abductee had no motive to falsely implicate any one of the accused.

19. We have gone through the entire evidence, prosecution as well as defence, and have considered at length the contentions raised by the learned counsel. The most important evidence in the case is that of complainant Muhammad Riaz who was the driver of P.W. Zahid Hussain and had carried abductee in the car to be left at the school in Nursery area, as well as that of the adbuctee P.W. Saleem Zahid himself, who was kept as a hostage after his abduction for nine days and thereafter released. P.W. Muhammad Riaz complainant, had time and opportunity to see at least the three culprits who forcibly picked P.W. Saleem Zahid from in front of the school gate, put him in the car and drove away: It is not the prosecution case that any one of the three abductors had their faces muffled. P.W. Riaz did not identify anyone of the 3 culprits, from out of 6 accused facing trial. What was most important in the case was to have called P.W. Muhammad Riaz/complainant at the time of identification parade for identification of culprits if any, lined up alongwith dummies. Such was not done as he was not called during parade and the lapse on the part of the Investigation Agency is something which cannot be countenanced on a mere assumption that such was inconsequential. No reason is given by prosecution why this witness was not called for identification. P.W. Riaz when appeared in the Court gave a different version that what he gave in F.I.R. He stated that he had taken a daughter and a son (abductee) from his house, dropped the girl at her school and then dropped the abductee at New Horizon School. This version he never gave in the F.I.R. During his evidence, he clearly stated that none of .the six accused present in Court had abducted Saleem Zahid. The height of prosecution inefficiency was that this witness was not even declared hostile and cross-examined with the permission of the Court. The prosecution on the contrary remained satisfied with his evidence. The serious dent caused to the prosecution case by the evidence of P.W.I Muhammad Riaz is irreparable.

20. As to the other. important P.W. Saleem Zahid, the abductee, it is relevant to refer to certain facts of the case. He was abducted and kept in captivity as a hostage for about nine days. After his release when he came home, he was not produced before the Investigating Officer for recording his police statement for nearly seven months. His police statement was recorded after the identification test held on 6-7-1991 while the incident took place on 10-10-1990. In the identification parade, P.W. Saleem Zahid picked out six, out of the eight culprits, mixed with dummies including the four appellants herein. He had identified acquitted accused Syed Muhammad Shahid and Syed Ahmadullah as per identification memo. When he appeared before the trial Court, he stated, that the acquitted accused were not identified by him, which, would mean that the identification memo. Exh.19 prepared by the A.C.M. was not only incorrect but seemingly prepared under somebody's instructions.

21. Coming now to the role attributed to each appellant by P.W. Saleem Zahid, he stated that appellant Usman Zahid was sitting in the room in a bungalow where he was taken after abduction and detained. For appellants Khawaja Hassanullah, Akbar and deceased Razzak (killed during encounter), it is stated that they had abducted and brought him in a car to a bungalow. For appellant Muhammad Rafique, it is stated that he used to remain as a guard on him in the bungalow. From the school upto a place where the abductee was shifted from the rear seat and put in the boot of the car, admittedly the abductee had a momentary glimpse of the culprits: May be that after he was taken to the bungalow where he was kept for nine days, he had clearly seen the faces of all the culprits and, therefore, identified some of them in the parade. The question is, when almost all accused were arrested on 28-5-1991, what was the reason for not holding identification parade till 6-7-1991. Similarly what could be the reason for not examining the abductee and his father Zahid Hussain for nearly seven months from the date of incident. There is hardly any explanation which could be furnished by the learned counsel appearing for the State except that it Was being determined with precision as to which accused was involved in which similar case of kidnapping for ransom. Such cannot be an acceptable explanation.

22. We would also like to advert to the memo of identification parade Exh.19. It is partly typed and partly handwritten. It is admitted by A.C.M. Mr. S. Niaz Hussain Shah that the Urdu writing, is not in his handwriting. The memo further shows that for the identification of eight accused only 30 dummies were mixed. The names or the particulars of the dummies have' not been mentioned. The letter for holding the identification test was received by the A.C.M. on 4-7-1991 but for unknown reasons the test was deferred to 6-T1~1 and that too, in a serious case of this nature. The identification test is, therefore, illegal, contrary to the rules laid down in the cases of Lal Pasand PLD 1981 SC 142 and the case of Sobharo 1993 SCMR 585 (Supreme Appellate Court) for want of description of the accused in the F.I.R. The accused in their statements on oath had stated that they were shown to P.W. Saleem Zahid in S.1.C. Cell, as also outside the Court of A.C.M. before the actual test. The manner in which the memo of identification test Exh.19 is prepared leaves no room to doubt that what the accused stated was not without any force. The identification of four appellants by P.W. Saleem

23. Zahid would, therefore, be not such a strong piece of evidence, as would provide corroboration to the ocular testimony which, in fact, is none in this case.

24. On the point of payment of ransom money to two persons on 18-10-1990 near the Board Office, North Nazimabad Karachi, P.W. Zahid Hussain (Exh.15) stated that one of such persons was Razzak who was murdered in an encounter but for the other, he was unable to state if anyone of six accused in Court was the second man. The conversation between P.W. Zahid Hussain and the abductors on telephone. and the bargaining that went on for nearly nine days was kept a secret. The reason given by Zahid Hussain is that the kidnappers had threatened him that if the information was conveyed to the police, his son Saleem Zahid would be done to death. In any case, after the release of his son, P.W. Zahid Hussain should have taken him to the Investigating Officer for recording his statement who could have disclosed or described the particulars and features of the accused but such was also not done. Even his own statement by police was not recorded for nearly seven months but it was recorded only after the identification test was held.

25. The evidence of Court Witness No.3 Imam Bux Taggar is also relevant for the decision of this case. According to this witness, he alongwith a number of other police officials in various police mobiles, had raided Bungalow No.4-A, 13-D/2, Gulshan-e-Iqbal, Karachi, at 6-00 a.m. and arrested from there appellants Khawaja Hassanullah, Usman Zahid and Muhammad Rafique and recovered weapons from these accused under recovery memo Exh.27. It was during interrogation of these three accused that the names of absconding accused Shahid alias Kalia and Ellahi Bux alias Wadera were disclosed. When the house of Shahid alias Kalia was raided, a motor-bike was recovered under memo Exh.31. It was further at the pointing of three arrested accused that appellant Akbar was arrested and cash of Rs.89,000 was recovered at his pointing under memo Exh.33. It is also stated that three cars were recovered from the possession of appellant Rafique. In fact, from the evidence of P.W.

26. Imam Bux Taggar, it appears that on 28-5-1991 he had received a spy information that the culprits responsible for Crime No.60/91 of Police Station. Aziz Bhatti were available in the bungalow later on raided. He had no information that the accused of Crime No.851/90 (present case) were hiding themselves in the said bungalow. From his evidence, it also appears that the then accused' arrested by him as well as Razzak, subsequently killed, were involved in a number of cases of kidnapping for ransom and, therefore; after arrest of appellants and acquitted accused, he handed over their custody to Ferozabad Police who was investigating this, case. The total amount according to him recovered from various accused was Rs.19,89,000 and this was the ransom amount paid by the kidnapees or their relations in different cases registered at different police stations. During the entire process of raid, arrest and recovery, no independent witness of the locality was associated but the two Mashirs namely, Muhammad Iqbal and Siddique who were associated during search and recovery proceedings were also not examined. Thus, the arrest, recovery of cash, ornaments or weapons and ammunition from various accused becomes violative of section 103, Cr.P.C.

27. As many as 10 defence witnesses were examined and each one of them had explained the circumstances and the manner in which the accused were arrested or the cash and jewellery secured by the police from their respective houses. Some of the witnesses are even the parents of the accused. Learned trial Court has brushed aside the entire defence evidence on the ground that the witnesses were related to the accused and as such, their credibility was doubtful. The entire defence evidence has been rejected through one paragraph in the impugned judgment. The trial Court was perhaps unaware of the law that the evidence of defence witnesses is to be put in juxtaposition with the prosecution case and then to assess as to which of the two is worthy of reliance. In our view, the defence witnesses had fully explained how the accused were arrested from their houses which the police ransacked and took away the cash and ornaments etc. If the accused were, in fact, arrested in the way as stated by the defence witnesses, only the near relations could be called as defence witnesses and mere relationship of such witnesses with the accused would not be a disqualifying factor nor their evidence could be rejected on that ground alone. Even the statements of accused on oath, if found worthy. of reliance, could not. have been rejected and the trial Court has not even cared to refer to the statements of accused on oath.

28. For the aforesaid reasons, we are of the clear view that the prosecution had failed to prove its case against the appellants beyond all reasonable doubt and the conviction and sentence in the circumstances cannot be sustained. We, therefore, allow these appeals, set aside the conviction and sentence and acquit the appellants. They shall be released forthwith unless required in some other case.

29. N.H.Q./H-396/K Appeals allowed.