Dr Akmal Waheed and Dr Arshad Waheed on Friday filed appeal in Sindh High Court against their conviction by trial court on charges of harbouring, and providing medical treatment to Jundullah activists. Challenging the conviction by ATC, appellants' counsel M Ilyas Khan and Mohammad Farooq submitted that the trial court Judge had miserably failed to appreciate facts and law involved in the case and based his judgement on assumptions and presumptions, and as such the judgment is liable to be set aside.
They stated that charge framed against appellants on the basis of two different alleged acts, independent of each other which evidence was recorded, and conviction awarded to them amounted to grave miscarriage of justice, misjoinder of charges, thus causing serious prejudice to the accused and vitiate the trial.
"Learned Judge miserably failed to take into consideration facts appellants were abducted on 17.6.2004 and such FIR bearing Crime No. 132/2004 u/s 365-A/34 PPC was registered at PS Jackson. It was only on 2.7.2004 the appellants were shown arrested in FIR No. 165/2004 of PS Boat Basin and 179/2004 of PS Ferozabad. However, in both the cases report u/s 169 Cr. P.C. on 14.7.2004 and the two appellants then arrested in subject FIR No 305/2004 of PS Gulshan-e-Iqbal on 14.7.2004."
They submitted that trial court had failed to take into consideration cross-examination of prosecution witnesses and decided the case in a very biased manner, and that transfer application against ATC Judge was also filed which remained pending SHC for want of time.
They stated that anxiety of ATC Judge in convicting appellants was quite apparent as the main case ie. Corps Commander convoy attack case, and Rangers mobile attack case were in the initial stage of trial.
The two counsel mentioned that trial court held in judgement that "the present accused persons were fully aware that Shahzad Ahmad Bajwa (fake name Abdullah) and Qasim, who had sustained injuries in the cases of attack on mobile of Pakistan Rangers and convoy of Corps Commander had committed alleged offence on very said dates on which they were provided treatment by the accused persons, " while, they said, there was no evidence in this respect as in terms of Article 40 it is necessary that facts discovered at pointing of accused in police custody must result into discovery or recovery in consequences of information received from the accused therefore if no recovery has been made, the same would be not applicable.
They stated that Shahzad Ahmed Bajwa and Ataur Rehman in their confession had stated that doctor brothers "were providing financial help and medical assistance to needy persons of their group and were also issuing necessary instructions as and when required' while they contended that no such statement had been made by the said accused persons and said that confessions have been allegedly brought on record as confessions were not recorded in the case in which the appellants have been convicted.
They said that confessions are inadmissible against appellants because neither they were recorded in subject case nor confessing accused retracted from confessions by submitting an application in the Court.
There is no corroboration of the confession as it is crystal clear from reading of confessions that two lines involving appellants were subsequently added in the said confessions, they argued, adding that it is a central principle of law evidence of one case cannot be read in another case, which has been erroneously done by trial court.
It was further submitted trial Judge did not apply his mind and failed to take into consideration the evidence of defence witness Dr Professor Azhar Farooqi, renowned cardiologist of international repute, who was examined on the point of attempts of Douglas Matthews, Counsellor, US Embassy to lure Dr Akmal Waheed to proceed to America.
"Dr Azhar Farooqi had produced fax received by him sent by Douglas Matthews, and letter sent by Dr Akmal Waheed to Professor Farooqi, gravely apprehending the motives of Douglas Matthews," while trial court noted in judgement that "Professor Azhar M.A. Farooqi has deposed regarding the profession of the accused persons and nothing else."
The court has been asked to set aside the trial court order and the appellants be acquitted from the above-mentioned charges.
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