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Petitioner: THE STATE and others VS Respondent: RAHIM DAD and others
Court Name: Balochistan High Court Judge(s): Amanullah Khan, Fazal-ur-Rahman Title: THE STATE and others vs RAHIM DAD and others Case No.:Murder Reference No.30 of 2002, Criminal Jail. Appeal No.72 of 2002,
JUDGMENT
Reported As: 2005 MLD 1620 Result: Order accordingly Judgment JUDGMENT ' AMANULLAH KHAN YASINZAI, J.---The appellants Fayyaz Ahmed alias Kaka Marri, Rahim Dad, Muhammad Afzal along with absconding accused Mashooq alias Mustafa, Abdul Haq Abro and Haji Muhammad and acquitted accused Shah Nazar Lodhi were tried by Anti-Terrorism Court-I Quetta under sections 365-A, 302, 102-B, 109, 449, 34, P.P.C. Read with section 7-A of the Anti- Terrorism Act for abducting minor Ambreen and committing murder of Muhammad Ayub during the commission of abduction, on conclusion of the trial each of the appellants along with the absconding accused were convicted as follows:-- ' Appellant Fayyaz Ahmad alias Kaka Marri: (i) For offence under section 365-A. P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to Death. (ii) For offence under section 302(a), P.P.C. Read with section 7-A of the Anti-Terrorism (Amendment) Ordinance 2001, sentenced to death. ' Appellant Rahim Dad. (i) For offence under section 365-A, P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to death. (ii) For offence under section 302(a), P.P.C. Read with section 7-A of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer Life Imprisonment. ' Appellant Muhammad Afzal.
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(i) For offence under section 365-A, P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to death. (ii) For offence under section 302(a), P.P.C. Read with section 7-A, of the Anti-Terrorism (Amendment) Ordinance 2001, sentenced to suffer Life Imprisonment. ' Absconding Accused Mashooq alias Mustafa. (i) For offence under section 365-A, P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to death. (ii) For offence under section 302(a), P.P.C. Read with section 7-A of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer R.I. For life. (iii) For offence under section 21-L of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer R.I. For 2 years. ' Absconding Accused Abdul Haq Abro. (i) For offence under section 365-K, P.P.C. Read with section 7-E of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to death. (ii) For offence under section 302(a), P.P.C. Read with section 7-A of the Anti-Terrorism (Amendment) Ordinance, 2001; sentenced to suffer R.I. For life. (iii) For offence under section 21-L of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer R.I. For 2 years. ' Absconding accused Haji Muhammad. ' For offence under section 21-L of the Anti-Terrorism (Amendment) Ordinance, 2001, sentenced to suffer R.I. 2 years. ' On 10-1-2002; on the fateful day, at about 1-50 p.m. The episode of this case was reported by P. W.1 Shafiq Ahmad Khan, (Uncle of minor Ambreen) vide Fard-e-biyan (Exh.P/1-A), wherein it was alleged that, on the said date, at about 1-20 p.m., he was present in his house namely Zia House, at Amirabad, Tail Godown, Quetta, he heard hue and cry and came down stairs. He was informed by his Cook Faqir Hussain that, two persons entered the house by breaking the kitchen door, forcibly dragged minor Ambreen. Her mother, who was present there, resisted the same, but they forcibly took away the minor Ambreen and during this time, Muhammad Ayub, Shopkeeper entered and house on hearing the hue and cry; who tried to stop the assailants was fired at the main gate by one of the culprits and on receiving the bullet injuries, he died there and then, whereas the minor Ambreen (hereinafter referred as the abductee') was forcibly taken away in a silver coloured Pajero, parked in front of the gate where five other persons were also present. Thereafter all the culprits decamped from the place of incident. It was further stated by the complainant that, on receiving such information, he tried to chase the accused persons and thereafter he reached Gawalmandi Police Station and informed the Police Authorities, who held Nakas on the roads and informed the city police on Wireless Set about the said incident. Since the vehicle of the culprits could not be traced out, therefore, he came back to home, where police was already present who had removed the dead body of Muhammad Ayub. On the basis of Fard-e-bayan, F.I.R. No.3 of 2002 registered under sections 302/365, P.P.C. ' Investigation of the case was taken in hand and it is the case of prosecution that, on effective efforts, appellant Muhammad Afzal was arrested on 12-2-2002 and abductee was recovered. Thereafter on the disclosure of Muhammad Afzal, appellants Rahim Dad, Faiz Ahmad alias Kaka Marri and Shah Nazar were arrested. However, accused Mashooq, Abdul Haq and Haji Muhammad, could not be arrested and they were declared absconders. ' On completion of investigation, challan was submitted before the Anti-Terrorism Court No.1, Quetta. ' At-the trial, charge was framed against the appellants, acquitted accused-respondent and absconding accused under sections 365-A/ 302/120(b)/109/449/34, P.P.C. Read with sections 7(a)
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and 7(c) of the Anti-Terrorism Act, 1997 (hereinafter referred as the "Act"), which was refuted by the appellants and acquitted accused-respondent, whereas it was deemed to have been denied by the absconding accused persons. To substantiate the substance of accusation, prosecution examined as many as 20 witnesses, the gist of which is given below:-- (1) P. W.1 Shafique Ahrnad Khan is the complainant of the case. He reiterated the contents of the Fard-e-biyan Exh.P.1-A. Besides, he further deposed that his family owned a shop in the name and style of Qadoosi Trading Company, situated at Mission Road, Quetta, which remained closed for three days on account of the incident, on 13-1-2002, when the shop was opened an envelope was found wherein a letter was written and an amount of Rs.100,000,00 was demanded as ransom, for return of minor abductee. The letter was given to the Investigating Officer at CIA Centre. Thereafter a telephonic call was received at the residence of Dr. Yousaf Pervez (father of abductee) wherein a demand was made for ransom. He further deposed that another envelope was received containing an Audio Cassette which was handed over to Police. Subsequently on the telephone a deal was struck for Rs.30 lacs for the return of abductee. The telephonic conversation was also recorded on the audio cassette, was also given to the Investigating Officer. He also deposed that an amount of Rs.30 lacs was arranged by them and was put in bag which was handed over to the CIA staff. The Notes were signed by the DSP Saleem Lehri and as per directions of the accused persons, the amount was taken to Chaman in the meanwhile a Raiding Party was also constituted and thereafter appellant Muhammad Afzal was arrested and the minor abductee was recovered by the police from a house in Chaman. (2) P.W.2 Muhammad Saleem Lehri, D.S.P., CIA. In his presence the amount of Rs.30 lacs comprising of Notes of Rs.1000 each was handed over to CIA Police. He signed the first and last Currency Notes of each Bundle, for identification of the same. ' The said amount was taken into possession vide memo. Exh. P/2-A. (3) P.W.3 Abdullah Jan, S.I. He is a marginal witness of the following events of investigation:-- (a) In his presence, on 13-1-2002, the letter allegedly written by appellant was produced by complainant was handed over to Investigating Officer Essa Jan, wherein amount of one crore was demanded, which was taken into possession vide memo. Exh.P/3A; the letter and envelope were tendered as articles 33 and 34. (b) On 21-1-2002, the complainant again came to CIA Centre and produced another letter allegedly written by appellants which was taken into possession vide memo. Exh.P/3-B. The letter and envelope were produced as articles 35 and 36. On 6-2-2002, the complainant once again came to the CIA Centre and produced video cassette along with a letter, wherein threats were made that if the amount is not received the abductee would be killed. The same was taken into possession vide memo. Exh.P/3-C and video cassette and letter were placed on record as articles 37 and 38. (c) On 7-2-2002, complainant again produced an audio cassette, which was taken into possession vide memo. Exh.P/3-D wherein the audio cassette was produced as article 43. The witnesses acknowledged his signatures on all the Seizure memos. On 11-2-2002, complainant produced an audio cassette, stated to be a conversation held between the family members of the abductee and the accused person regarding ransom amount. The said audio cassette was taken into possession vide memo. Exh.P/3-E. (d) In his presence the ransom amount was also given to CIA Police which was taken into possession vide memo. Exh.P/2-A and the Currency Notes were signed by D.S.P. Muhammad Saleem Lehri. (e) On 13-2-2002, Azhar Hussain Shah, A.S.-I. Posted on telephone emergency placed on record 19 Telephone prints to the. Investigating Officer regarding calls made to the house of abductee, which
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were taken into possession vide memo. Exh.P/3-F and the telephone prints were placed on record as articles 48 to 57. (t) On 6-3-2002, in his presence appellant Fayyaz Ahmad alias Kakar Marri, made disclosure that, he along with other accused persons gathered at a Hotel situated near Degree College, Sariab Road and planned about the instant offence. Giving account of the incident, he stated that appellant Muhammad Afzal brought three pistols which were given to Mashooq alias Mustafa, Wadera Rahim Dad and Abdul Haq Abro and a handgrenade was handed over to accused Muhammad Afzal. He further disclosed that the pistol used by him in the commission of offence was taken from his friend. Muhammad Ilyas from whom he (accused) borrowed the same. He also disclosed that at the time of commission of offence, appellant Shah Nazar informed them that due to unavoidable circumstances he cannot accompany them. It was also disclosed by accused that they came in silver coloured Pajero at the place of incident and purchased 50 cartridges from an Arms Shop at Sariab Road, Quetta. Witness further deposed that the accused disclosed about the entire facts i.e., from the moment they entered the house, caught hold of the abductee, came to the main gate, resisted by deceased Muhammad Ayub, on whom he fired and thereafter theyescaped along with the abductee from the scene of occurrence., On such disclosures, a disclosure memo. Was prepared which was signed by the witness produced as Exh.P/3-G. On such disclosure, the police party along with the accused went to a house at Quarry Road, and knocked the door of a house, pointed out by accused. In response to which, Muhammad Ilyas came out, who handed over the Pistol along with licence, borrowed by appellant for the commission of offence, which was taken into possession vide memo. Exh.P/3-H. The pistol and the cartridges were produced as articles 70 and 71. (g) On 8-3-2002, in presence of D.S.P. Sohail Ahmad Sheikh and others, accused Fayyaz Ahmad further disclosed that he can point out the place of incident and the house where abductee was confined, situated in Pashtoonabad. On such disclosure memo. Exh.P/3-J was prepared. Witness further disclosed that during investigation accused Rahim Dad also made disclosure in respect of the commission of offence and accordingly disclosure memo. Exh.P/3-K was prepared. After the disclosure; the accused Rahim Dad also led the police party to the place of occurrence and pointed out the places where they committed the offence. Accordingly pointation memo. Was prepared, which the witness produced as Exh.P/3-L. He further deposed that accused Fayyaz Ahmad also led the police party on the place of incident and pointed out the places where the offence was committed. On this, pointation memo. Was prepared, which was produced as Exh. P/3- M. (h) On the pointation of accused Fayyaz Ahmad, the house where the abductee was kept was also shown to police and in this behalf pointation memo. Exh.P/3-N was prepared. (i) On 12-3-2002, during investigation accused Shah Nazar Lehri, disclosed that he can point out the Hotel, where the plan of offence was made. On such disclosure memo. Exh.P/3-0 was prepared and thereafter he led the police to Sariab Road and pointed out the Hotel, on which, pointation memo. Exh.P/3-P was prepared. ()) On 30-3-2002 in presence of witness, S.I. Fareed Ahmad produced two Certificates issued by the Afghan Government Officials, which were taken into possession vide memo. Exh.P/3-Q and the Certificates were placed on record as articles 72 and 73. On 19-S-2002, in his presence during investigation accused Muhammad Afzal, disclosed that plan of offence was made at the instigation of one Haji Muhammad, who gave Rs.1,30,000. On this disclosure memo. Exh.P/3-R was prepared and thereafter the accused led the police to the house of one Sher Muhammad, from where a buried pistol was recovered and taken into possession vide memo. Exh.P/3-S. The pistol was produced as article 75. He further acknowledged his signature on all the aforementioned memos. And identified the appellant, present in the Court.
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(4) P.W.4 Muhammad Zaman. He was the member of police party who went to Afghan Border, for the recovery of the abductee. He deposed that on 12-2-2002, under the directions of high-ups he along with Police Party and Abdul Rahim, servant of Dr. Pervez Yousaf, who was handed over an amount of Rs.30 lacs, i.e. Ransom money, went to Chaman. Abdul Rahim proceeded inside Afghanistan territory under the cover of Police. On his reaching at Taxi Stand Spin Boldak, accused Muhammad Afzal came, who was handed over the bag containing the amount, and took Abdul Rahim on a motorcycle. After covering a short distance the motorcycle got disbalanced and they fell down. As soon as the motorcycle fell down, the Police Party along with the personnel of Afghan Government reached and caught hold of accused Muhammad Afzal. Thereafter the amount was recovered from him and same was taken into possession vide memo. Exh.P/4-A. After arrest of accused Muhammad Afzal, he made disclosure that plan of offence was made at Sariab Hotel, with the connivance of other accused persons. On this disclosure memo. Was prepared, which the witness produced as Exh.P/4-B. Accused also stated that he can get recovered the abductee from a house situated at Killi Kakozai, Murda Karez Chaman. Thus on his pointation, the police proceeded to said Killi and accused led the police to his house, where 4/5 children were playing and accused pointed out towards a girl and stated that she is the abductee. On his pointation the abductee was recovered and a pointation memo. Was prepared, which the witness produced as Exh.P/4-C. Lastly witness identified the accused present in the Court. (5) P.W.5 Wazir Khan Nasir, S.P. City. He was head of the Police Team who went to Afghan Border for the recovery of minor. He narrated the facts as deposed by P.W.4, pertaining to the recovery of abductee and arrest of accused Muhammad Afzal. He further acknowledged his signatures on the disclosure memos. And pointation memos. Exhs.P/4-..A to 4-C. He further deposed that site-plan Exh.P/5-A was also prepared by him. On reaching Quetta, he handed over the bag containing the ransom amount to CIA Police and the abductee was handed over to her father Dr. Yousaf Pervez. Thereafter on 14-2-2002, under the directions of DIG, he went to Chaman border for taking the custody of accused Muhammad Afzal from Afghan Authorities and after taking his custody brought him to Quetta. (6) P.W.6 Mazhar Hussain Gondal, Retired A.S.-I. He deposed that on 10-1-2002, he along with other police officials went to the place of incident and prepared inspection plan Exh.P/6-A and in his presence Khaliq Dad S.-I. Secured blood vide memo. Exh.P/6-B and recovered two empties, which were taken into possession vide memo. Exh.P/6-C and further also took into possession the broken lock of the kitchen vide memo. Exh.P/6-D. He acknowledged his signatures on all the memos. (7) P.W.7 Zafar Iqbal, Head Constable. He is Mashir regarding the bloodstained Shalwar, Qamiz and Banyan of deceased Muhammad Ayub, taken vide memo Exh.P/7-A. He acknowledged his signatures on the same. (8) P.W.8 Syed Muhammad Haroon Agha, Judicial Magistrate. He recorded 164, Cr.P.C. Statements of witnesses Muhammad Illyas, Sher Muhammad and Muhammad Saddique in presence of accused Fayyaz Ahmad alias Kaka Marri and Muhammad Afzal. Witness deposed that on 13-3- 2002, the Investigating Officer produced accused Fayyaz Ahmad and witness Muhammad Illyas in his Court. He identified himself to accused and witness and satisfying himself, he recorded the statement of witness Muhammad Illyas and accused Fayyaz Ahmad was allowed to cross- examine him. He produced the envelope, statement, his Certificate on the statement and notice issued by him to accused Fayyaz Ahmad as Exh.P/8-A to 8-D. Witness further deposed that before 20-5-2002, he issued Notice to accused Muhammad Afzal on the request of Investigating Officer regarding statements of witnesses Muhammad Siddique and Sher Muhammad under section 164, Cr.P.C. And on 20-5-2002, he recorded statements of both the witnesses in presence of accused Muhammad Afzal, after observing the codal formalities. He produced the envelopes, statements of witnesses, notices and written requests of police as Exhs.P/8-E to P/8-0. Witness further deposed
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that on 16-5-2002, Investigating Officer requested him for obtaining the specimen handwriting of accused Muhammad Afzal, and also produced the accused along with a letter. On this he selected one paragraph from the letter and asked the accused to write down the same in his handwriting in three different modes i.e. Fast, medium and slow. The accused reduced the same in writing and after obtaining the said specimens; he signed the same and affixed the seal of the Court. Witness produced the said specimens as Exhs.P/8-P to 8-R. (9) P.W.9 Dr. Fareeda, M.L.O. Civil Hospital, Quetta. On 10-1-2002, at about 1-40 p.m. She examined the dead body of deceased and issued Certificate Exh.P/9-A. She found the following injuries:-- "No. 1. Entrance wound on back of the occipital region 1/2 cm, in diameter with bleeding. No.2 Exit wound left averted margin in rounded in shape on interior lateral side of right eye. 3 x 3 cm in diameter. No.3 Both eyes are black. No.4 Bleeding from nose and mouth. Probable Cause of Death ' Injury too vital organ in cranial cavity, command shot and death. Nature of Injuries ' Fresh and caused with fire-arm." (10) P.W.10 Inayatullah, Judicial Magistrate-HI, Quetta. He recorded the confessional statement of accused Fayyaz Ahamd alias Kaka Marri. He deposed that on 14-3-2002, accused Fayyaz Ahmad along with co-accused Rahim Dad and Shah Nazar were produced. After observing codal formalities, in their presence he recorded 164, Cr.P.C. Statement of accused Fayyaz Ahmad and allowed opportunity of cross-examination to co-accused person. He produced the envelope, statement and his Certificate appended at the bottom of confessional statement as Exhs.P/10-A to 10-C. (11) P.W.11 Sohail Ahmad Sheikh, D.S.P. Before him, accused Fayyaz Ahmad alias Kaka Marri, and Rahim Dad, made disclosures and pointations, on which, various memos. Were prepared, detail given by P.W.3 Abdullah Jan. He deposed about the said disclosures and the pointation made by both the accused persons. Besides, he deposed that on 8-3-2002, identification parade of accused Rahim Dad was conducted in Cantt. Police Station where witness Faqir Muhammad identified him thrice, Identification Memo. Exh.P/11-A was prepared, which bears his signatures. Witness deposed that on the same day, accused Rahim Dad was also identified by Mst. Laila mother of abductee and in this respect Identification Memo. Exh.P/11-B was prepared and said accused was also identified by abductee Ambreen on the same day, thus another Identification Memo. Exh. P/11-C was prepared. Witness identified his signatures on all the Identification Memos. Witness further deposed that during course of pointation by the accused persons, he prepared site-plans Exhs.P/11-D and 11-E (12) P. W.12 Faqir Muhammad. He is the servant of complainant and was present at the time of incident. He deposed that on 10-1-2002, at about 1-15/1-30 p.m. He heard hue and cry upon which, he came out and saw two accused persons, one of them was pulling the door of kitchen and other entered in Kitchen and pointed pistol at him. To save himself, he ran in a room and dialed, number of Qadoossi Store, which was engaged. Thereafter he heard firing. After firing he again dialed the number which was attended by Ejaz and he informed him about the incident. Thereafter he came out and found the dead body at the gate. Witness further deposed that on 8-3-2002, during identification parade he identified accused Rahim Dad to be the person who pointed out pistol on him at the time of incident. (13) P.W.13 Muhammad Illyas. He is the person, from whom accused Fayyaz Ahmad borrowed pistol which was used in the commission of offence. This witness deposed that on 9-1-2002, accused Fayyaz Ahmad, who is his friend came and took his Pistol on the pretext of a marriage of his relative. The pistol along with licence was given to him. The accused returned the pistol on 10-1- 2002. He further deposed that on 6-3-2002, the accused in the custody of police came to his
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house, he handed-over the pistol and licence to police. Thereafter he recorded his statement before the Magistrate. (14) P.W.15 Laila, mother of abductee. She stated that on 10-j-2002, she was present in the house, when three persons entered from the main gate. On seeing them, she bolted the door. The accused persons pushed the door of TV Lounge and then they opened the door of the Kitchen by breaking the lock and one of the accused had a Pistol. She and her children started crying. On hearing their cry, the Cook Faqir Muhammad came there and on seeing the accused person, he ran in the room through kitchen. She tried to inform the other family members on telephone about the incident. During this time she heard the cries of abductee that 'do not take me'. On this she left the telephone and rushed towards her and saw that two persons were dragging her. In the meanwhile Ayub came inside, who was fired at. Thereafter the abductee was taken by accused persons in the vehicle. Witness further deposed that on 8-3-2002, at Cantt. Police Station, she and her daughter Ambreen identified the accused Rahim Dad. (15) P.W.15 Ambreen, the abductee. She deposed that on 10-1-2002, she was present in TV Lounge of her house along with her sister. At that time, four persons tried to open the door of TV Lounge, they came through the kitchen door. When they reached in the TV Lounch, her mother went towards Telephone and they caught her and took her outside. During this time Ayub came to save her, but one of them fired at him with a pistol. Thereafter they put her in the vehicle and went away. She further deposed that the person who took her from the home was identified by her in the Cantt. Police Station. She also identified her signatures on the identification memo. Exh.P/11-C. She deposed that thereafter she was taken to a house at Quetta and then shifted to Afghanistan, where some ladies were also present. The witness identified accused Rahim Dad to be the person, who caught hold of her at the time of incident and identified by her during the identification parade. (16) P. W.16 Abdul Rahim. He is the person who was sent to Afghan Border along with ransom amount, in the company of police. He deposed that along with Dr. Yousaf Pervez, Hamayun Jogezai and' other police personnel, he went to Chaman. He along with the bag crossed the border by foot and reached Taxi Stand Spin Boldak. After reaching there, appellant Muhammad Afzal came on a motorcycle and demanded the amount and stated that after receiving the amount he would hand over the abductee. The witness handed over the amount. Thereafter accused Muhammad Afzal took the witness on a motorcycle but due to rough road, the motorcycle got disbalanced and they fell down. During this time police party came and apprehended the accused. Thereafter they came to Spin Boldak and then to Chaman. After two hours the police recovered the abductee. He identified the accused Muhammad Afzal, present in the Court. (17) P.W.17 Farzand Ali. He is the Handwriting Expert. He examined the specimen handwriting of accused Muhammad Afzal by comparing it with the letter sent to the family of abductee, demanding…
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