1988 PLP 653 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.--This is a petition for leave to appeal from the order of a learned Single Judge of the Sind High Court, dated 27th July, 1987, whereby the prayer for release on bail made by the petitioner in a case registered against him under sections 395, 385, 365 and 364 read with section 109, P.P. C. at Police Station Bulri Shah Karim, District Hyderabad, was dismissed. This petition is connected with Criminal Petition No. 65-K/1987, Dr. Muhammad Hassan Rizvi v State, which has been disposed of by this Court today.

2. The case of the prosecution as disclosed in the F.I.R. was that one Sullaiman Dawood, a leading business man of Karachi while visiting his land in Tando Muhammad Khan Taluka, was kidnapped by four persons, who were armed with Kalashnikov rifles at 3-00 p. m. on 15th May, 1987. The F. I. R. was lodged by one Abdul Jabbar, an employee of Sullaiman Dawood on the same date at 4-30 p.m. According to the prosecution, petitioner Abdul Razzaq Mania alongwith co-accused Dr. Muhammad Hassan Rizvi approached Ahmad Dawood, head of Dawood family and brother of Sullaiman Dawood, and ransom amount was settled at Rs.25 lacs, out of which 8 lacs was paid to the petitioner and the said co-accused. Mr. Sullaiman Dawood was recovered from the kidnappers and was escorted from Thano Bula Khan side by the petitioner and the said co-accused alongwith others and was thus restored to his family on 18th May, 1987. After the release and restoration of Mr. Sullaiman Dawood it is alleged that the petitioner and Dr. Muhammad Hassan Rizvi asked Ahmad Dawood, brother of Mr. Sullaiman Dawood to pay Rs.50,00,000 but he refused to pay the same, saying that the deal was settled Rs. 25,00,

000. It is further alleged that co-accused Dr. Muhammad Hassan Rizvi, was annoyed by this refusal and threatened that the kidnappers themselves would recover the money. It is further alleged that on the intervention of the petitioner the ransom amount was settled at Rs.25,00,000 and balance of Rs.17,00,000 was paid to co-accused Dr. Muhammad Hassan Rizvi, at the house of the petitioner. According to the order of the High Court, this incident got nation-wide publicity and the petitioner as well as co-accused Dr. Muhammad Hassan Rizvi were detained under the Maintenance of Public Order Ordinance, and the investigation was conducted by the C.I.A. alongwith other police agencies. The petitioner was put under arrest in this case on 13th June, 1987, and the order under the Maintenance of Public Order Ordinance was withdrawn. The police has submitted challan in the Court and the case is pending before the Sessions Court, Hyderabad. According to the statement made in the challan on further investigation the accused persons who had released Mr. Sullaiman Dawood were arrested and from their possession an amount of Rs.11,99,000 was secured, which money was identified.

3. The first application for bail submitted by the petitioner was dismissed by the learned Second Additional Sessions Judge, Hyderabad, by his order dated 6th July, 1987. The petitioner then approached the High Court and by the impugned order his prayer for release on bail was refused. Hence this petition.

4. It may be pointed that the learned Judge in the High Court had considered the case of the co-accused Dr. Muhammad Hassan Rizvi only on the medical grounds and not on merits, whereas the case of the petitioner was dealt with in the same order on merits. The learned Single Judge after referring to the dictum laid down by this Court in Khalid Javed Gillan v. The State P L D 1978 S C 256, to the effect that at the stage of bail the Court has, to make a tentative assessment of the evidentiary value of the material placed before it by the prosecution, but the Court should not conclusively determine the guilt or innocence of the accused while deciding the bail application and avoid elaborate sifting of evidence referred to the evidence against the petitioner in the following passage of the order: "P.W. Ahmad Dawood, who is the head of Dawood family and who paid the ransom amount has stated, that on the same day in the evening present two applicants had approached him and told not to worry and then they brought some other persons. He has further stated, that Dr. Rizvi demanded Rs.25,00,000 from him and that Dr. Rizvi and Abdul Razak Mania came to his house and demanded the amount. He stated, that he paid Rs. 8 lacs to Dr. Rizvi after which both Dr. Rizvi and Abdul Razak Mania left. He further stated, that on the next day Dr. Rizvi demanded Rs. 50,130,000 and when he called Abdul Razak Mania, he also stated, that they made settlement at Rs.50,00,

000. He further stated, that he sent for Rs. 17,00,000 and paid to Dr. Rizvi in the house of Abdul Razak Mania. The evidence of Abu Dawood, brother of Sullaiman Dawood is also more or less or the same lines and so is the evidence of Muhammad Hussain Dawood. The evidence of Sullaiman Dawood also shows, that applicant Abdul Razak Mania was in the jeep which came to escort him after the release from the kidnappers from Thana Bula Khan to Karachi. Sullaiman Dawood further states, that applicant Abdul Razak Mania told him that he should state in his statement that the accused had dropped him A1-Karam Square. Other evidence is of Muhammad Afroze. driver of Dr. Rizvi. His evidence shows, that present applicant Abdul Razak Mania associated all alongwith Dr. Rizvi during all these transactions."

5. We have heard Mr. Fakhruddin G. Ebrahim, learned counsel appearing for the petitioner and Mr. Murtaza Hussain, learned counsel representing the State at length and have also perused the material placed on the record consisting of the evidence against the petitioner.

6. It is contended on behalf of the petitioner that the Courts below failed. to appreciate in proper perspective glaring features of the prosecution evidence, which support his bail plea. In this connection it is pointed out that the only evidence against the petitioner consists of four witnesses who all belonged to the Dawood family, and the perusal of the section 161, Cr.P.C. statements of these witnesses disclosed material contradictions inter se as well as with the version disclosed in the F.I.R. It is also pointed out that the statements of these four witnesses were recorded by the police for the first time between 23rd May, 1987 to 6th July, 1987 (although the date of occurrence was 15th flay, 1987, and the abductee was released on 18th May, 1987) and their section 164 statements were recorded even later on 16th June, 1987. Learned counsel emphatically urged that admittedly no alleged ransom money or any other incriminating recovery was made from the petitioner. On the other hand the perusal of the statements of these four witnesses leaves clear and unambiguous effect of exonerating the petitioner of any complicity in the commission of the crime and prima facie show that the petitioner was called by the Dawood family as a family friend to assist them in securing the whereabouts of the abductee. It is further argued that the admitted position of the prosecution case is that the petitioner had nothing to do with the first occurrence of alleged abduction of Mr. Sullaiman Dawood at Tando Muhammad Khan, and no evidence whatsoever has been produced of his having aided, instigated or conspired in any manner in regard to the alleged -incident of the abduction or even as regards the payment of the ransom amount. Counsel pointed out, it is not alleged that at any time the petitioner directly demanded or received any ransom money. On the contrary there is no indication in the entire prosecution case attributing any motive of personal gain in the entire transaction nor was any evidence collected in proof of the fact that he was the beneficiary thereof.

7. Learned counsel appearing for the State has placed on the record section 164 statements of the prosecution witnesses proposed to be produced as evidence against the petitioner. These statements are of Mr. Ahmad Dawood, Muhammad Hussain Dawood, Mr. Sullaiman Dawood, Ali Muhammad Dawood and Muhammad Younis. We have perused these statements. The relevant part of the statement of Mr. Ahmad Dawood is that after the news of disappearance of Mr. Sullaiman Dawood many people came to his house. Dr. Rizvi and the petitioner also came there and volunteered to find the whereabouts of Mr. Sullaiman Dawood. He has then described how they settled the amount of ransom in the house of Dr. Rizvi at Rs.25,00,

000. The only other allusion made to the petitioner was that he was present and according to the witnesses he paid Rs.8,00,000 at his house to the team which had to go in search of the abductee consisting of Dr. Rizvi the petitioner and his brother Ali Muhammad Dawood who then went away. According to his allegations after the release of his brother Dr. Rizvi came and demanded Rs.50,00,000 and when the witness pointed out that the settlement was made at Rs.25,00,000 the former scolded him saying that those people will themselves recover the amount. At this stage the witness called the petitioner and in response to that the petitioner went over to his house and supported him that the amount was really settled at Rs.25,00,

000. Subsequently the witness paid the balance amount of Rs.17,00,000 to Dr. Rizvi in presence of the petitioner. The statement of Mr. Muhammad Hussain Dawood is substantially the same as that of Mr. Ahmad Dawood but he has stated that Dr. Rizvi was a personal friend of his father Mr. Ahmad Dawood and the petitioner was good friend of his brother. According to him he was not present at the time of discussion in regard to settlement of ransom amount. The only relevant part of his statement is that he was "indirectly involved in the efforts being made in the recovery of Mr. Sullaiman Dawood by discussion with Mr. Abdul Razzaq Mania. He assured me that Inshallah he would be able to bring good news with regard to recovery of Mr. Sullaiman Dawood." He refers to a family meeting in which it was decided that the ransom money be paid to Dr. Rizvi as that would result in quick recovery of the abductee. In his statement this witness has also said that the petitioner verified that the settlement was for Rs.25,00,000 and has gone to the extent of saying that the petitioner indulged in ferocious argument with Dr. Rizvi over the matter of enhancing the ransom amount. This witness also does not involve the petitioner in the matter of receiving the balance of the ransom amount. The only other relevant observation made by the witness is that the petitioner was reluctant to divulge any information with regard to the efforts or activities for recovery of Mr. Sullaiman Dawood. The next witness Ali Muhammad Dawood is an important witness from the prosecution side as he had accompanied the team which went to a desolate place from where the abductee was released and recovered. It has been pointed out on behalf of the petitioner that this witness has contradicted Mr. Ahmad Dawood as he has stated that on the next day of the occurrence he himself thought of calling the petitioner and therefore he telephoned him to come over so that he could assist in tracing the whereabouts of the abductee. It was in response to this call that the petitioner went to his house and also subsequently called his own son who was sent to Thatta. As regards the settlement of ransom money his evidence is substantially same as that of the first mentioned witness. Rs.8,00,000 were kept in a bag and bag was placed in the witnesses' car. He further states that before leaving Karachi he telephoned the petitioner and told him that he would not go without the petitioner accompanying him. It was, therefore, that the petitioner went to his house and accompanied the team. It has been pointed out that the money was then transferred to the car in which the witness alongwith others travelled. The other important fact pointed out from his statement is that when they reached the spot he alongwith the petitioner, Dr. Rizvi and one other person kept on sitting in the car. It is further pointed out that this witness has all along stated that the petitioner was in his accompany during the whole operation and had no contact with the party which brought the abductee from the place of hiding. The abductee was also not escorted by the petitioner at the time of his release when he came towards the witness. Even when the money was transferred from the car occupied by the witness alongwith the petitioner to another car, no role has been assigned to the petitioner.s

8. Lastly Mr. Sullaiman Dawood the abductee in his long statement, describing in detail the whole incident has not attributed any dubious role to the petitioner. The only reference made to the petitioner relates to the time after he was released and sat in the jeep which had come to take him from the place where he was brought for the purpose of release. According to him another jeep came there in which his brother Mr. Ali Muhammad Dawood and the petitioner were sitting and he then sat with them to come back home.

9. It was pointed out that the offence under section 385, P.P.C. putting any person in fear of injury in order to commit extortion is a bailable offence punishable with imprisonment for two years. As regards section 395, P.P.C. the offence of dacoity, section 391, P.P. C. requires that five or more persons who conjointly commit the offence and a person charged with aiding such commission must be present.

10. Learned counsel for the State mainly stressed the charge of abetment under section 109, P.P.C. against the petitioner and for the present, stated that there is no evidence of his having any part played so far as the initial act of abduction is concerned. Prima facie, therefore, the allegation against the petitioner is of being an accessory after the fact qua the main charges of dacoity and abduction. When questioned as to what are the circumstances in the evidence collected against the petitioner to prove abetment, learned counsel for the State's reply was that the evidence consists of the oral testimony of the four witnesses of Dawood family, the substance of which has been mentioned above.

11. We have carefully considered the arguments of the learned counsel appearing for the parties. We have also examined the circumstances appearing from the evidence referred to by the learned Single Judge. He has referred to Mr. Ahmad Dawood's statement that petitioner alongwith Dr. Rizvi had approached him and the latter subsequently demanded the ransom amount. As pointed above the learned counsel for the petitioner referred to the statement of Mr. Ali Muhammad who said that he had himself called the petitioner. Further, the initial amount of Rs.8,00,000 or Rs.17,00,000 was also not paid to the petitioner although he was present at that time. Learned Judge observed that when the higher amount of Rs.50,00,000 was demanded the petitioner was called by Mr. Ahmad Dawood and stated that the said amount was settled. However, the witness has stated that finally the petitioner agreed that the settled amount was in fact Rs.25,00,000 and as pointed out, Mr. Muhammad Hussain Dawood stated that the petitioner strongly supported the actual settlement and also entered into a heated argument with Dr. Rizvi over the matter. The learned Judge had also referred to the statement of the on their way back home that he should state in his statement that the accused had dropped him at Alkaram Square. We have been referred to the actual words used in the statement under section 164, Cr.P. C. relating to this matter which translated reads as follows:- "When we reached Thano Bula Khan I was told regarding my release that I should state that the dacoits had left me at Alkaram Square and after getting down there I had called my brother by telephoning him. Abdul Razzaq Mania had told me this. At this I had stated that it will not be appropriate to say that because if I am asked from where I had telephoned I will not be able to name any place. After some discussion, Dr. Rizvi told me that there is no harm if you take my name. I agreed to this." In the case of Khalid Javed Gillan (supra) this Court explained to what extent the material produced by the prosecution can be evaluated at the stage of bail in the following words:- "Now as bail has to be allowed or rejected on the basis of this material, it follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail application, the more so, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts, must refrain, directly or indirectly from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail, if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shirk its obligation to decide the application for bail before it, and that application can only be decided by Court's belief about the material produced before it." After an elaborate review of case law the learned Judges made the following significant observation:- "An elaborate sifting of evidence is an altogether different thing from the tentative sifting of evidence which the Court is compelled to resort to in a bail application, therefore, this judgment does not lend any support to Mr. Abdul Hamid Malik's submission that bail cannot be granted if the plea is pressed on ground which turns on the appreciation of evidence."

12. In the light of the principles enunciated in the aforesaid judgment we have carefully scrutinized the material placed before us and we feel that the question of complicity of the petitioner is a matter which requires further inquiry for being established at the trial but at this stage he is entitled to bail. We would not like to comment how far the circumstances appearing in the evidence in the material placed before us relating to the petitioner would constitute sufficient proof of his guilt as that would amount to elaborate sifting of evidence and may prejudice either party at the trial. However, we consider that the points mentioned in the arguments of the learned counsel for the petitioner are not irrelevant so far as the assessment of the material produced before us is concerned. For the present purposes, therefore, we are unable to ignore the circumstances pointed out. It may be clarified, however, that the observations made in this judgment will be taken to be tentative and will not in any way influence the learned trial Judge in his decision at the trial.

12. In the result we convert this petition into appeal and allow it. The petition is accordingly granted bail in the sum of Rs.1,00,000 with one surety and P.R. bond in the like amount to the satisfaction of the Naazar of Sind High Court. M.Y.H./A-173/S????????????????????????????????????????????????????????????????????????????????? Bail granted.