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Petitioner: Mst. SAIMA Alias SOBIA And Another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Shahid Anwar Bajwa Title: Mst. SAIMA Alias SOBIA And Another vs THE STATE Case No.: Special Anti-Terrorism Appeals Nos. 12 and 13 of 2007 Date of Judgment:2010-09-02 Reported As: 2011 YLR 632 Result: Appeal allowed
JUDGMENT
JUDGMENT SHAHID ANWAR BAJWA, J. Appellants were tried for an offence under sections 365- A/302/114/109/34, P.P.C. r/w sections 7(a) and (e) of the Anti-Terrorism Act, 1997 and were convicted and sentenced as under: 1. Section 365-A/34 P.P.C. (a) Imprisonment for life. (b) Confiscation of movable and immovable properties to the extent of Rs. 100,000 each. 2. Section 302(b)/34, P.P.C. Imprisonment for life and fine of Rs. 100,000 each and in case of non payment of fine to further suffer imprisonment for six months. This was done by the trial Court vide judgment dated 31-5-2006. It may be Pointed out that in the impugned judgment neither there is statement granting or refusing benefit of section 382-B, Cr.P.C. Nor there is any mention in the judgment of the trial Court whether the two punishments are to run concurrently or consecutively. 2. Story of the prosecution is that accused are Mst. Saima (alias, Sobia) (hereinafter referred to as Saima) and Zaheer Ahmed Abbasi (hereinafter referred to as Zaheer). On 2-6-2006 at 9-30 a.m. Saima called P.W.9, Syed Shakir Ali, father of the abductee/deceased Furqan Ali, aged about 17 years on telephone. She is alleged to have told father of the deceased that she wanted to go to Mudassir Coaching Centre and therefore requested that permission be granted to Furqan to accompany her to the Coaching Centre Syed Shakir Ali gave permission. Thereafter at about 11-30 a.m. Saima came to house of Syed Shakir Ali and with the permission of P.W.12, Mst. Rasheeda, mother of the deceased, she along with the deceased left the house of the deceased for the ostensible purpose of going to the coaching centre. Thereafter Furqan Ali did not return home and P.W.12 Mst. Rasheed saw Saima
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coming back to her house at 2-30 p.m. And she asked Saima about her son to which she replied that after hiring a rickshaw for her he went away. At 3-00 p.m. a phone call was received which was followed by another phone call at 5-30 p.m. Which stated that Furqan had been kidnapped and ransom was demanded. Family reported the matter to the police. This state of affairs continued for some days. C.P.L.C. Was informed on 3-6-2006. Family checked with Mudassir Coaching Centre as well at examination centre where Syed Furqan Ali was to sit in examination and from there they were told that Furqan had never gone there. Saima stated that she and Furqan went to the coaching centre and Furqan asked her to sit in Rickshaw and to go back. Between 2-4-2006 and 4- 6-2006 various calls were received demanding ransom and eventually on 5-6-2006 the caller stated that Furqan had been killed and family could collect his dead body from National Highway. 3. On 3-6-2006 P.W.3 Danial Adil, A.S.-I. Posted at Police Station Mauri pur received telephonic message about an abandoned dead body at Hawks Bay. He after due formalities, got hold of dead body, got its postmortem conducted and then handed over the dead body to Edhi Centre. Edhi Centre after waiting for a few days when no one turned up to claim the dead body, buried it after due rites. On 21-6-2006 the I.O. Took the complainant etc. To Edhi Center and through photograph they identified that a person whose dead body was recovered from Cape Mount was their brother. On 20-6-2006 upon expression of suspicion on Saima she was arrested by the police. From her purse admit card of the deceased as also a mobile phone was recovered. She led the police to house of Zaheer and is alleged to have stated that after Furqan was abducted he was kept in house of Zaheer. Zaheer was also taken into custody. One prosecution witness (P.W.4) deposed that a car was hired by Zaheer from his car hiring establishment. Another prosecution witness Majid Ghani, P.W.13 stated that he saw Zaheer and Saima in the car at a petrol pump and Furqan was sitting at back seat and the car was being driven by a person of fair colour. Saima was seated besides Furqan at the back seat and is stated to have told Majid Ghani that Furqan was not feeling well and they were taking him to doctor. Thereafter another witness P.W.14 Fahim Azeem stated that on 2-6-2006 he had gone for picnic to Paradise Point and when he was at a distance of about 1 KM or 1-1/2 KM he saw a car in which two persons were sitting on the front seat. He stated that person sitting on drivers seat was of fair colour with curly hair and the other person was looking, drowsy and was in the arms of the first person. He stated subsequently seeing the two walking on the beach with fair one holding the drowsy one by his arms. These were stated to be links in the chain on the basis of which the prosecution contended that the appellants are guilty and were accordingly convicted by judgment dated 31-5-2006. 4. During trial as many as 15 witnesses were produced by the prosecution and three witnesses were produced in defence by appellant, Saima. P.W.1 was SIP Muhammad Latif, who recorded F.I.R. At Police Station Korangi Industrial Area. P.W.2 was Muhammad Usama who worked at a shop dealing with mobile phone and other electric items. P.W.3 was Danial Adil, Police Officer who recovered dead body from Cape Mount. P.W.4 was Syed Tahir Hussain Zaidi, who claimed that he had business of renting out cars. P.W.5 was Syed Rizwan Ali, brother of the deceased and P.W.6 was Ghulam Rasool Shaikh, Judicial Magistrate, who conducted the identification parade. P.W.7 was Muhammad Siraj a Police Constable posted at AVCC who was Mashir. P.W.8 Syed Rehan Ali, a brother of deceased and who lodged F.I.R. P.W.9, was Syed Shakir Ali father of the deceased. P.W.10 was Dr. Abdul Jabbar Memon, who conducted postmortem examination. P. W.11 was Ghulam Muhammad a Head Constable at AVCC, P.W.12 was Mst. Rasheeda mother of the deceased. P.W.13 was Majid Ghani and it was claimed that he had last seen the two appellants with the deceased at a petrol pump. P.W.14, was Faheem Azeem who it is claimed last saw the deceased with appellant Zaheer at Hawks Bay. P.W.15 was I.O. Sami Jan. Statements of both the appellants were recorded under section 342. Cr.P.C. As stated above.
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Appellant Saima produced three witnesses. DW.1 Dr. Haider Raza Naqvi. a doctor at Liaquat National Hospital; her sister Mst. Mubashira Ali and Masood Arif, a report of daily "Ummat" Karachi. 5. Mr. Shoukat Hayat, learned counsel for the appellant made the following submissions:-- (1) That there is no evidence of abduction, administration of intoxicant and throwing of the deceased into the sea. (2) One prosecution witness has claimed that he saw the appellant and he was unwell and the other P.W. Claimed that he saw deceased and he was drowsy. It is also claimed that deceased was thrown into sea. There is no medical evidence of intoxication. No contents from the stomach or intestine were sent for detailed examination. Medical report has stated the death as having been caused by drowning. Medial evidence also stated that there is no bone injury of the deceased and therefore there is no evidence in any case that the deceased was thrown in the sea. (3) Dead body of the deceased was identified from a photograph which was too small in size and not a too well printed one. No clothes, shoes or any other item of the deceased has been produced for the purpose of identification. (4) Complaint was lodged with the police after 10 hours of the alleged abduction and it is stated by the witnesses that it was lodged after consultation. Therefore it is a cooked-up story. (5) Appellant Saima is not inculpated in the F.I.R. Because F.I.R. Only says that the deceased went with Saima to the Coaching Centre. (6) P.Ws.8 and 9 have stated that a phone call was received from appellant Saima. However, P.W.12, mother of the deceased stated that Saima herself came to her house for going with the deceased to the coaching centre. Thus there is a contradiction in the evidence of the prosecution. (7) It is claimed that deceased went to Coaching Centre at midday with Saima but there is no witness from the locality, bazaar or even the coaching centre that any one saw deceased going with Saima from the house to the coaching centre and from coaching centre to house of Zaheer, where it is alleged by the prosecution that deceased was held captive after having been abducted. (8) I.O. Investigated Saima on 6-6-2006 and did not join her as accused person and thereafter on 20-6-2006 at the behest of father of the deceased, for mala fide reasons, involved Saima and claimed that he arrested her, whereas Saima had been arrested two days prior to 20-6-2006. (9) P.Ws.5, 8, 9 and 12 have not implicated Saima in any manner whatsoever that she kidnapped or murdered the deceased and no telephone call is claimed to have been made by Saima. Even otherwise P.W.12 mother of the deceased stated that Saima returned at 2-30. First telephone call for ransom is alleged to have been received at 3-00 p.m. Therefore, in any case Saima could not be the one who demanded any ransom. (10) It is alleged by the prosecution that at the time of Saima's arrest from her purse admit card of the deceased was recovered. Saima had denied such recovery and has claimed that she was arrested not on 20-6-2006 as claimed by the I.O. But on 18-6-2006. An interview was given by the father and brother of the deceased on 1-7-2006 and Admit Card was shown to the newspaper correspondent and was duly published. Therefore if Saima had been in custody, Admit Card had been recovered from Saima on 20-6-2006 how could it find its way to the newspaper where in interview Syed Shakir Ali father of deceased produced it. This was deposed by DW.3. (11) It is claimed by the prosecution that Samia led police party to house of Zaheer. No article or item connected with\deceased such as poison or intoxicant or a piece of cloth has been recovered from house of Zaheer. No person from Mohallah of Zaheer had been joined as mashir. (12) It is alleged by the prosecution that mobile phone No. 0345-2895896 was recovered from Saima Mobile produced in Court has no number and it is not in evidence as to where its sim had gone. The appellant Saima denied recovery of the mobile. In any case, this mobile was not, alleged to have been used in any way.
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(13) It is claimed that phone calls were recorded by the complainant. The recorded voice has not been sent for any Expert opinion for matching if it with voice of the appellants. (14) From the record produced in respect of the calls made it is obvious that a very long duration call (278 units) was made between the owner of the mobile and Shakir Ali, P.W.9. This indicates previous familiarity between the caller and P. W . 8. (15) The star witness appears to be Majid Ghani, P.W.13. Learned counsel referred to various aspects of the statements which according to him belie the evidence of Majid Ghani. (16) It is claimed by P.W.4 that there was a tracker in the car and P.W.15 I.O. Clearly stated that there was no tracker in the car. (17) Besides this there are other inconsistencies between the evidence of the witnesses. (18) While concluding the learned counsel submitted that father of the deceased is a Rice sealer and he has all sympathies with him because his son has been murdered in budding years of his life but the prosecution has failed to prove the charges, in any sense of the word, against appellant Saima. 6. Mr. Khawaja Naveed Ahmed, learned counsel for appellant Zaheer made the following submissions in addition to adopting, submissions of learned counsel for Saima:-- (1) There is no denying the .Fact that death of a young man has taken place but the question before the Court is as to whether the appellant is responsible or guilty of such murder, There is no evidence against the appellant. (2) It is a case where there is a hyper acting I.O. He first arrested the appellants and then created evidence which evidence did not stand in the cross-examination. (3) Although the trial Court has given a number of punishments of imprisonment but it has neither written concurrent nor consecutive. It may be an oversight on the part of the trial Court. (4) P.W.4 is a fabricated witness. At Exh. 9/A appellant Zaheer ' s signatures have not been proved and even a cursory comparison of the signatures with the other signatures available on record indicates that Exh. 9/A had not been signed by the appellant Zaheer. (5) There was no previous acquaintance between the appellant Zaheer and P.W.4. It is highly improbably that a person who lets out cars will give a car to some one who does not produce his driving licence, from whom no security is taken and with whom there is no previous acquaintance. (6) Regarding P.W.14, learned counsel submitted that he identified the deceased from a photo which appeared in newspaper Janbaz. Learned counsel submitted that firstly how many people read Janbaz, secondly there were 9 photos in a box and it is highly impossible that some one would recognize a person whom he saw only once. (7) Learned counsel referred to criminal record of P.W.14 and his previous acquaintance with the Investigating Officer Sami Jan, as P.W.14 resided in Mehmoodabad and at Police Station Mehmoodabad criminal cases were registered against P.W.14 and I.O. Was posted at that police station for quite some time. (8) Identification parade is not valid. (9) While concluding learned counsel submitted that it is a case of created and not collected evidence. 7. Learned. A.P.-G. Made the following submissions:-- (1) In the F.I.R. Name of appellant Saima is mentioned and defence has not been able to point out any grudge or previous enmity between Saima and complainant's family. (2) It is a case of no direct evidence. However circumstantial evidence dots connect with each other. There is last seen evidence and then there is medical evidence.
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(3) Though intoxication has not been proved but drowning proved that death was unnatural. (4) P.W.2 stated that he sold the mobile chip to Zaheer and P.W.4 stated that he rented car to Zaheer. No enmity between these two witnesses on the one hand and the appellant on the other hand has been prolied. (5) P. W. 13 Majid Ghani and P.W. 14 Faheem Azeem are independent persons. They are residents of the same locality and their evidence remained unshaken. (6) Motive of the murder has been ransom and the Court is to see value of the evidence and not quantity of the evidence. Learned A.P.-G. Supported the order of the trial Court and prayed that conviction and sentence be maintained. 8. Pir Rehman's Masood, learned counsel for the complainant made the following submissions:-- (1) It is proved through evidence that the deceased went in the morning with Saima. (2) It is also proved through evidence that the Saima returned at 2-30 p.m and call came at 3-00 p.m. This shows coordination between Saima and the caller. (3) Appellant Zaheer pointed out the place of incident. Majid Ghani has given clear explanation for corning to the house of the complainant on 21-6-2006 because he had changed residence earlier. (4) Arrest of the appellant is proved by mashir and it was not necessary to produce female Police Constable Saira Mughal to prove such arrest. (5) While concluding the learned counsel prayed that Court may itself undertake exercise of comparing admitted signatures of Zaheer with alleged signatures (pages 43 and 107 of Paper Book). (6) Regarding appearance of Admit Card in the .Newspapers he submitted that it was a photo copy on the basis of which it was printed in the newspapers. He further submitted that Shakir Ali never went to the office of newspapers. Regarding poor investigation learned counsel submitted that direction be given to the authorities to take action against the Investigating Officer Sami Jan. 9. All the learned counsel relied upon various case-law to which we shall refer, where appropriate at the appropriate place in the judgment. 10. We have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited by the learned counsel. 11. This is a case where there is no direct evidence of abduction and no direct evidence of murder. Therefore it is a case which is entirely based on circumstantial evidence. In State v. Manzoor Ahmed, PLD 1966 SC 664, it was held as under:-- "Learned counsel appearing for the respondent has urged the necessity of exercising minute care before drawing any inference adverse to his client. It is no doubt true that in a case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial Evidence, remember that the "processes of inference and deduction are essentially involved---frequently of a delicate and perplexing character---liable to numerous causes of fallacy." Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and "incapable of explanation upon any other reasonable hypothesis than that of his guilt." It is also equally well-settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by preconceived notions. But once the circumstances have been found to be so established they may well furnish a better basis for decision than any other Kind of evidence. As Hewart, I.C.J. Observed in the case of Percival Leonard Taylor, James Weaver and George Thomas Donovan (1) "it is no derogation of evidence to say that it is circumstantial."
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12. In case of Mirza Tahir Hussain v. The State, 1999 M LD 2675 a Full Bench of the Federal Shariat Court in the same context observed as under:-- "It is settled law that circumstantial evidence must be a combination of facts creating a network through which there is no escape for the accused, because the facts, taken as a whole, do not admit of any inference but of his guilt. In other words, circumstantial evidence should point inevitably to the conclusion that it is the accused and the accused alone who is the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused." 13. Thus, it appears that if charge is based on circumstantial evidence the Court is not precluded from holding a person guilty or from imposing maximum permissible punishment if the charge is proved. However, each of the circumstance must be treated a link in the chain and if at any stage any of the links in the chain is found missing or is found without any strength, due to acidic licking by the benefit of doubt or otherwise, no conviction can be based on such circumstantial evidence. Duty of the Judge deciding a case based on circumstantial evidence is much more onerous than duty in a case of direct ocular evidence. In the first case, the Court has to be extremely careful in ensuring that not only all the chains in the link exist but also to come to the conclusion, by independent and separate evaluation of evidence in respect of the each and every link of the chain, that sturdiness of each of such links is unimpeachable. As stated in mechanical engineering that in case of chains consisting of various links strength of the chain is equal to the strength of the weakest link. Therefore if evidence consists of a chain of circumstances then each link in the chain must stand its on test of judicial scrutiny. A single weak link, a single missing link, would have the effect of annulling the entire other evidence. 14. In the present case, links in the chain are:-- Link No. 1. Saima called father of deceased on the morning of 2-6-2006, then came to their house at about 11-00 a.m. Of that day and went with the deceased to Mudassar Coaching Centre. Saima returned at 2-30 but deceased Furgan did not. Link No.2. P.W.13 Majid Ghani at about 2-00 p.m. Saw deceased with appellants Nos.1 and 2 in a car at a petrol pump and deceased was looking unwell. Majid Ghani inquired and was told by appellant Saima that deceased was not feeling well and they were taking him to hospital. Link No.3. P.W.14. Faheem Azeem on 2-6-2006 at Hawks Bay saw the deceased who was looking drowsy and was in the arms of appellant Zaheer. Link No.4. P.W.14 Faheem Azeem recognized the picture of the deceased which appeared in daily. Janbaz and then in daily Riassat on 22-6-2006 he read about the details of the incident. Link No.5. Saima was arrested on 20-6-2006 and an Admit Card of the deceased was recovered from her. Link No.7. Saima led the police party to the house of Zaheer and stated that after kidnapping the deceased was held captive at the house of Zaheer. Link No.8. Identification parade. 15. There are three supporting links to the chain:-- Supporting Link No.1. P. W.2 Muhammad Usama who claimed that a mobile was purchased by Zaheer from Reliable Watch Company situated at New Gulzar Market. Supporting Link No.2. P.W.4 Syed Tahir Hussain Zaidi, stated that Car No. AFZ 834 COURE Model 2003 was rented out to appellant Zaheer. It is claimed that it was this car which. Was seen at the petrol pump and at Hawks Bay. Supporting Link No.3. Telephone calls were made to Syed Shakir Ali, P.W.9 father of the deceased demanding ransom.
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16. Now we will have to evaluate evidence in respect of each of the Links. However before we evaluate the evidence regarding links to see whether they stand test of judicial scrutiny or not, we may state here that undisputed facts are that firstly deceased Furqan was about 17 years old and his dead body was recovered from Hawks Bay and medical evidence states that his death occurred because of drowning. Death, death by drowning and recovery of dead body is undisputed. Medical evidence has not been questioned by anyone. 17. We will first take up three supporting links. First supporting link is regarding purchase of SIM. P.W.2, Muhammad Usama in his evidence stated that he was serving as salesman at Reliable Watch Co. Situated near Gulzar Market, Saddar. He further stated that during the last days of May, 2006 when he was present in the mobile phone shop a person came to him and requested to install a JAZZ connection in the name of Khizar Hayat. Consequently the . Witness stated that he provided him SIM of number 0302-24416 in the name of Khizar Hayat and issued him a receipt. In the Court he identified appellant Zaheer as the person who had purchased the SIM from him. During cross-examination the witness admitted that he is not a salesman in the mobile phone shop but is working in another shop in the premises of the same owner. He admitted that application for providing SIM produced by him is not in his handwriting and that it did not bear signatures of either the witness or the owner or the purchaser. He admitted that it was not filled during his presence. He also admitted that over a period of 20 days about thousand to twelve hundred persons came to the shop. He also admitted that he could not identify all who visit his shop. He also admitted that he saw the appellant for the first time when the appellant came for purchasing the mobile. He also admitted that application 7/A (application for Provision of Communication Service) does not bear any name and does not bear name of any shop. A reading of evidence of P.W.2 indicates that at the alleged time of purchase of SIM allegedly by the appellant Zaheer under the name of Khizar Hayat there was no unusual incident which took place. It is admitted by P.W.2 that about 50 to 60 persons visit the shop. Customer information form is not filled up by him and it is not signed by him. Neither does it bear signatures of appellant Zaheer. 18. P.W.14 I.O. Sami Jan in his evidence stated that when appellant Zaheer was arrested from his personal search a mobile phone containing SIM No.0300-2432183 was recovered. This indicates that the SIM stated to be recovered from Zaheer by the I.O. Is of a different number than the SIM stated by P.W.2 as having been sold to Zaheer. Therefore as far as evidence of P.W.2 is concerned it is of no consequence whatsoever for the prosecution. 19. The second supporting link is regarding renting of the Car No. AFZ 834. P.W.4 is Syed Tahir Hussain Zaidi. In his evidence he stated that on 28-5-2006 accused Zaheer came to him at about 2-00 p.m. And requested for giving him a car on rent for a few days. He further stated that after obtaining his NIC he rented him the car bearing Registration No. AFZ 834 Model 2003 Cuore Company and the…
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