1992 P Cr (PLP)

P.W.1 Dr. Ahmed Ali is the complainant. His evidence is at Exh.6. He has stated that he knows the accused who was S.H.O. at P.S. Kamber. On 30-11-1981, he was sitting at his clinic when accused came in jeep alongwith his staff and called him. The complainant met him, and was informed that he has been called by D.S.P: and he has come to take him. The complainant went with him. When they reached the road of Mirokhan a car was already standing there with 3 persons. The accused handed him over to those persons and directed them to complete the work. After 3/4 hours they reached an abandoned house in which the complainant was kept under one Chowkidar. After 4 days those persons again came, took him in the same car and left him on the road at about midnight time. In the morning he boarded a bus for Sukkur from where he made telegrams to S.P. and D.I.-G. At present he neither has the copies of the telegrams nor the money receipts for the payment of the telegrams. When he was taken from his clinic, his dresser Kouro Khan, Muhammad Umer and Allahwarayo were available there. P.W.2 Kouro Khan is another witness. His evidence is Exh.12. He states that on the day of incident he was in the clinic of the complainant. P.Ws. Muhammad Umar and Allahwarayo were also present. Accused had-told the complainant that he has been called by the D.S.P. The complainant went with him in his jeep. When the complainant did not return till evening, he went to P.S. Kamber where he was told that they knew nothing about the doctor. He says he had filed petition under section 491, Cr.P.C. In the meanwhile on 8-12-1981 the complainant came to Larkana and informed him that accused had abducted him and also handed him over to dacoits. The last witness is P.W.3 Muhammad Umar. His evidence is at Exh.14. He states that on the day of incident he was sitting in the clinic of the complainant where P.W. Kouro, Allahwarayo and the complainant were present when accused came in the jeep and took him away. He was available uptil the evening time and after 8 days the complainant came back and informed him that he was abducted by the accused and handed over to dacoits who first confined him, then left him after 4 days. At the conclusion of the complainant's evidence the statement of the accused has been recorded under section 342, Cr.P.C. The accused denied all the allegations and claims false implication. The accused did not lead any defence witness. However, the accused has produced various documents which are Exhs.18 to

21. I have carefully applied my mind and I have taken into consideration all the circumstances of the case. I have also perused the judgment of the lower Court and I am of the considered view that the case against the accused is doubtful and he has been rightly acquitted by the trial Court for the reasons next following. According to the complainant and his witnesses, the incident has taken place on 30-11-1981 at 9-00 a.m. when the accused came in a jeep alongwith his staff, called the complainant outside and, on the pretext that D.S.P. had called, him, the complainant went with him.. Thereafter the complainant was handed over to dacoits who detained him for 3/4 days and then left him. The complainant came back, narrated the facts to his witnesses, thereafter on 20-12-1981 he lodged the direct complaint. It is important to note that in respect of this incident of 30-11-1981 there arc 2 versions. One as given by the complainant and the second as given by P.W. Koura Khan in Habeas Corpus Application No.468 of 1981 Exh.18. In respect of the same incident of 30-11-1981 at 9-00 a.m. P.W.2 Koura Khan Filed a Habeas Corpus Petition bearing No.468 of 1981 at the Sukkur Bench of the High Court. This petition is supported by an affidavit of P.W. Kouro Khan, as such the contents of the petition are on oath/solemn affirmation. This Habeas Corpus petition was filed on 1-12-1981 and in para. 3 of the petition, P.W. Kouro Khan has stated that on 30-11-1981 at 9-00 a.m. Dr. Ahmed Ali was present at his clinic when 2 police constables came forcibly took the complainant to Police Station Kambar, where the accused illegally detained the complainant Dr. Ahmed Ali at his police station without any lawful justification. Furthermore in para. 4 of this petition P.W. Koura Khan states that he approached the accused for the release of Dr. Ahmed Ali, but he refused to release him. Now if we compare the story as given in the complaint with the story given in the petition filed by P.W. Koura Khan, it will atonce be apparent, that the factum of kidnapping of the complainant by the accused stands falsified. The petition shows that on 30-11-1981 at 9-00 a.m. the complainant was forcibly taken to police station where he was illegally confined by the accused. On the other hand the direct complaint shows that accused himself had come in a jeep, called out the complainant, spoke to him and on false pretext the complainant himself sat in the jeep, then the accused took him to Mirokhan Road, where he handed him to dacoits. From the above observation it will appear, that the contents of direct complaint regarding kidnapping and the contents of P.W. Kauro Khan's petition are not only in direct conflict with each other, but the factum of kidnapping is falsified. There is yet another circumstances which not only questions the natural behaviour and conduct of the complainant but it also casts serious doubts regarding the case as a whole. In this regard I will again refer to the Habeas Corpus Petition No.468 of 1981. The same was filed on 1-12-1981 and it came up for hearing on 15-12-1981. On this date that is 15-12-1981, the complainant was himself present in the Court, so was the accused Agha Mir, The order passed by High Court on 15-12-1981 shows that the accused in presence of complainant Dr. Ahmed Ali informed the Court, that he neither arrested Dr. Ahmed Ali nor was he wanted in any case. The fact remains that the complainant completely remained a silent spectator. He neither made any complaint against the accused, nor protested against the statement made by accused Agha Mir when he stated that he did not arrest Dr. Ahmed Ali. This was not the natural conduct of a prudent man like the complainant. He could have informed the Court that accused was making a false statement, again, he could have at least informed the Advocate appearing in this petition or an application could have been moved bringing the correct picture of his kidnapping to the notice of the High Court. But as already stated complainant just remained silent. On account of this silence of the, complainant a serious doubt is cast on the case as a whole. The only inference which can be drawn is, that uptill 15-12-1981 the date on which the High Court heard the petition the story of the complainant as narrated in the direct complaint was not in existence. It appears, that after the order dated 15-12-1981 was passed by the High Court in the Habeas Corpus Petition, thereafter the complainant has come up with this story of kidnapping and wrongful confinement. Even otherwise, if we analyse the evidence on record coupled with the surrounding circumstances, immediately one gets the impression, that implicit reliance cannot be placed on the evidence of the complainant and his witnesses P.W. Kauro Khan and P.W. Muhammad Umar. In this regard it may be noted that the complainant and his witnesses arc related to each other. P.W. Kauro Khan is not only his employee but also his nephew while P.W. Muhammad Umar is his cousin. Again the alleged incident has taken place at 9-OO.a.m. in Larkana which is admittedly a big town and if this incident had really taken place, the natural conduct of the witnesses would have been to make hue and cry, inform the friends and family members of the complainant, narrate to the people available around the clinic of the complainant and even report to the higher authorities. But surprisingly the version of these 2 witnesses is to the effect that they neither informed anybody, nor anyone saw this incident. Another aspect of the case is that, according to complainant he had been making reports/complaints one after another against the accused. So much so, that the accused had also threatened him. Even the telegrams sent by the complainant indicate that the complainant was actually apprehending his death or abduction at the behest of the accused. In this background, admittedly there existed inimical relations between the complainant and the accused. The complainant was at daggers drawn with the accused. In the light of this background for the sake of argument if the accused were to say something or do something, concerning the complainant, it will be natural on the part of complainant to have an in-born feeling of doubt, suspicion and disbelief regarding any such act of the accused. In such a background it is completely unbelievable to reconcile with the idea that the complainant would sit in the jeep and accompany the accused without any hesitation or second thought. In any case, it has been rightly observed by the trial Court that since the complainant, has not examined any independent witness and the witnesses examined are relatives thus interested, their evidence requires to be corroborated from some independent source which is not available in this case. There is also another reason calling for corroboration of the witnesses. P.W. Kauro had given a different vision in the habeas corpus petition regarding the incident as already discussed while in his deposition in this case he has improved upon his version given in habeas corpus petition and has adopted the line taken by the complainant. P.W. Muhammad Umar has stated in his P.E. statement, that on the same day of Wardat he came to know that S H.O. Agha Mir alongwith other constables had kidnapped the doctor. The above version of P.W. Muhammad Umar is obviously false, as on the day of Wardat no body knew that the complainant has been kidnapped by the accused. Even the real nephew of the complainant, namely, P.W. Kauro did not know about it. P.W. Muhammad Umar having realised the falsity of his statement, conveniently changed the version in his deposition in this case by saying that, after 8 days the doctor returned and informed him that he was abducted by the accused. From the above discussion it is clear that there is intrinsic doubt with regard to the evidence of the witnesses on account of which implicit reliance cannot be placed on it without independent corroboration, which as already mentioned is not available in this case. I am in agreement with the observations of the trial Judge when he says, this appears to be a cock and bull story having been fabricated by the complainant to wreak his vengeance. In the result, I have no hesitation in holding that the accused Agha Mir has been rightly acquitted by the trial Court. There is no substance in t Ills acquittal appeal and the same is accordingly dismissed. N.H.O./M-1236/K Appeal dismissed.