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Petitioner: QURBAN ALI and another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Munib Ahmed Khan Title: QURBAN ALI and another vs THE STATE Case No.:Special Anti-Terrorism Appeals Nos.9, 10, 12, 13 and 37 and Confirmation
JUDGMENT
Reported As: 2007 P Cr. L J 675 Result: Order accordingly Judgment JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Special Anti-Terrorism Appeals Nos.9, 10, 12, 13 and 37 of 2005 and Confirmation Case No,3 of 2005 as they arise out of common judgment. 2. Brief facts giving rise to the present appeals and confirmation case are that on 11-6-2004 P.W.18 abductee Ahmed Naeem was returning to his house in his Car bearing No,AFD-516 after taking lunch in the house of his sister. The car was driven by driver complainant Muhammad Iqbal (P.W.4). At about 3-15 p.m. The car reached the gate of the Bungalow No,12-E, Second Gizri Street, DHA Phase-IV, Karachi. A white colour Toyota Corolla Car came and stopped in front of the car of victim, in which three persons were sitting. Out of them two persons, armed with pistols came out from the car, who were subsequently identified as appellants Abdul Rasheed and Muhammad Atiq Bajwa, while the third person, who was subsequently, identified as appellant Khalid Aziz remained seated on the driving seat of the car. The appellant Abdul Rasheed went to the front seat of the car where the victim was sitting whereas the appellant Muhammad Atiq Bajwa went towards the driver side of the car where the complainant was sitting. The appellant Abdul Rasheed forcibly pulled out the victim from the car and put him in his car, whereas the appellant Muhammad Atiq Bajwa took the keys from the car. In the meanwhile appellant Khalid Aziz came out from the car, folded both the number plates of his car and then they drove away their car along with abductee. The incident was witnessed by P.W.9 Chowkidar of the bungalow, Jamshed Khan. After the departure of the culprits the complainant and P.W.9 went inside the house, from where the complainant made telephone
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calls to several persons. After some time Tauqir Ahmed, cousin of the victim, came there who took the complainant to police station where he lodged report at 5-00 p.m. 3. After lodging the F.I.R. The police started the investigation. C.P.L.C. People were also contacted who installed a recording device to record the telephone conversation of the victim's house. On 12- 6-2004 at 1-30 a.m. In the night the mother of the victim and wife of P.W.3 received a telephone call. She was informed that the P.W.18 was with them and she should wait for his next call. On 15-6-2004 P.W.3 Muhammad 'Naeem, father of the victim, received a written letter of his son through his Chowkidar which was given to him by a person. In the letter it was disclosed that he was abducted and the abductors were interested in receiving money, therefore, the payment should be made but the agency people should not be involved. On 17-6-2004 P.W.3 received a call from one Akbar inquiring from him as to whether he had received the letter of his son and he demanded Rs,5 crore as ransom amount for the release of the victim. Thereafter, negotiations started. Subsequently, the ransom amount was reduced to Rs,61 lac and the amount was to be paid in England. Through the help of C.P.L.C., Pound Sterling 56,000 were handed over to one Bilawal. After receipt of the amount by the culprits through Bilawal released the P.W.18 on 12-8-2004. P.W.3 received a telephone call from the victim on 12-8-2004 at 12-30 a.m. Informing him that he should be picked up from the Bahria Petrol Pump., D.H.A. Thereafter, the complainant went there and brought the victim in his house who narrated the story to his father. 4. The P.W.18 disclosed to his father that after his abduction by above named three appellants the car was taken to an isolated place. The appellants took out his purse and mobile phone. After driving for about 15 minutes the car was stopped at isolated place where one purple colour car of Coure make was parked in which two persons were sitting; one on the driving seat and the other on the front seat. The victim was shifted to the said car whereas appellant Abdul Rasheed sat with him. Subsequently, the victim identified the person who was sitting on the front seat of the said car to be accused Junaid Ansari. The car was driven and stopped at a house where he was put in a room. The appellant Qurban Ali Khoso was guarding him and appellant Junaid Ansari used to come there. They obtained telephone numbers of his residence as well as mobile phone of his father. After three days the culprits forced him to write a letter to his father for payment of ransom amount which he wrote. He remained in the captivity of the culprits for 62 days. In the meantime they allowed him to talk to his father. In the night in between 11 and 12 August, 2004 the culprits brought him from the place of captivity and after walking some distance they put him in a green colour Daewoo car. The car was driven by some person. The appellant Abdul Rasheed and another person were sitting with him on the rear seat. The said person was subsequently identified to be Fida Hussain Khoso. The culprits left him at Shell Petrol Pump, DHA from where he made telephone call to his father who came and took him to his house. 5. The police, after usual investigation arrested the appellants. Appellant Qurban Ali Abbasi was produced before a Magistrate where he gave exculpatory confession. The appellants were produced before Magistrates where they were identified by the victim and P.Ws.4 and 9. After usual investigation the police challaned the appellants in the Court. 6. The learned Judge, Anti-Terrorism Court No,V, Karachi tried the appellants, convicted and sentenced them under the impugned judgment dated 4-2-2005 as under:-- "(a) For offence of abduction for ransom, punishable under section 365-A read with 34, P.P.C. All the present accused Fida Hussain Khoso son of Nadir Hussain Khoso, Junaid Rehman son of Abdul Rahman Ansari, Qurban Ali Khoso son of Himmat Ali Khoso, Abdul Rasheed son of Pehlwan, Muhammad Atiq Bajwa son of Muhammad Anwar and Khalid Aziz son of Abdul Aziz are awarded death sentence and each of them is ordered to be hanged by neck till their death and their properties are ordered to be forfeited to the tune of Rs,1,00,000 (one lac) each, to the Government;
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(b) For offence of wrongfully confining the abductee Ahmed Naeem for 62 days, an offence punishable under section 344 read with section 34, P.P.C. All the present accused Fida Hussain Khoso son of Nadir Hussain Khoso, Junaid Rehman son of Abdul Rahman Ansari, Qurban Ali Khoso son of Himmat Ali Khoso, Abdul Rasheed son of Pehlwan, Muhammad Atiq Bajwa son of Muhammad Anwar and Khalid Aziz son of Abdul Aziz are awarded rigorous imprisonment for 3 (three) years each and to pay fine of Rs,50,000 (fifty thousand) each or in default to pay fine, to undergo R.I. For 6 (six) months each; (c) For offence of kidnapping of the abductee Ahmed Naeem for ransom keeping him hostage for 62 days, charging ransom of Rs,61,00,000 (sixty-one lac) equivalent to 56000 pounds sterling and thereby committing an offence punishable under section 7(3) of the Anti-Terrorism Act, 1997, all the present accused Fida Hussain Khoso son of Nadir Hussain Khoso, Junaid Rehman son of Abdul Rahman Ansari, Qurban Ali Khoso son of Himmat Ali - Khoso, Abdul Rasheed son of Pehlwan, Muhammad Atiq Bajwa son of Muhammad Anwar and Khalid Aziz son of Abdul Aziz are awarded death sentence. Each of them is ordered to be hanged by neck till their death and their properties to the tune of Rs,1,00,000 (one lac) each are liable to be forfeited to the Government; (d) All the present accused Fida Hussain Khoso son of Nadir Hussain Khoso, Junaid Rehman son of Abdul Rahman "Ansari, Qurban Ali Khoso son of Himmat Ali Khoso, Abdul Rasheed on of Pehlwan, Muhammad Atiq Bajwa son of Muhammad Anwar and Khalid Aziz son of Abdul Aziz are also directed to pay Ahmed Naeem amount of Rs,1,00,000 (one lac) each to the victim/abductee as compensation on account of the mental anguish suffered by him during 62 days of his captivity, as provided under section 544-A, Cr.P.C. ' The punishment of death sentence awarded to the accused persons is subject to confirmation by the Honourable High Court as provided under section 376, Cr.P.C. ' Benefit of section 382-B, Cr.P.C. Is, however, extended to the accused persons and the sentences awarded to the accused persons are ordered to run concurrently. ' The amount of fine, if paid, be deposited in the Government treasury." 7. The appellants have preferred their appeals to challenge their convictions and sentences. The trial Court has sent Reference under section 374, Cr.P.C. For confirmation of sentence. 8. We have heard the Advocates for the appellants, complainant, A.A.-G. For the State and perused the evidence with the help of learned Advocates for the appellants very carefully. 9. From the facts and evidence we found that the prosecution has alleged and assigned different roles to different sets of accused in the commission of offence of abduction. Therefore, we will deal with each set of accused separately. 10. As regards the actual abduction, the prosecution made such allegation against the appellants Abdul Rasheed, Muhammad Atiq Bajwa and Khalid Aziz. To prove the said allegation the prosecution relied upon the evidence of P.W.4 complainant Muhammad Iqbal, P.W.9 Chowkidar Jamshed Khan, P.W.18 abductee Ahmed Naeem, P.W.11 Judicial Magistrate Zulfiqar and P.W.13 Judicial Magistrate, Abdul Qadeer. 11. The evidence of abductee P.W.18 reveals that when he reached at the gate of his house in his car which was driven by P.W.4 another white colour car came in front of his car. From the said car the appellants Abdul Rasheed and Muhammad Atiq Bajwa, armed with pistols, came out. The appellant Abdul Rasheed forcibly took him out from the car and put him in his car whereas the appellant Muhammad Atiq Bajwa forcibly took the keys of the victim's car from P.W.4. The appellant Khalid Aziz went to front, backside of his car, then came and sat on the driving seat. Thereafter, they drove the car. In the identification tests held before P.Ws.11 and 13, he picked out all the - three appellants to be the culprits of the crime by specifying their roles as mentioned above. His evidence is supported by P.W.4. He gave the same details of the incident as mentioned by P.W.18 and he assigned similar roles to appellants Abdul Rasheed and Muhammad Atiq Bajwa. A His
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evidence further reveals that he could not see the face of the driver of the car, therefore, in the identification test he picked out the appellants Abdul Rasheed and Muhammad Atiq Bajwa to be the culprits. He assigned them the same roles as mentioned by the victim. Their evidence is further supported and corroborated by P.W.9. He was Chowkidar of the bungalow of the P.W.18. His evidence reveals that on 11-6-2004 at 3-00 or 3-15 p.m. He was performing his duties at the gate of the bungalow when he saw the car of the victim arriving there. His further statement is same as that of the victim and P.W.4.. He also saw the driver of the vehicle of the appellants. He identified all the three appellants before the Magistrates in the identification tests. He assigned them similar roles as given by P.W.18. Their evidence is further supported and corroborated by Judicial Magistrate P.Ws.11 and 13. Their evidence reveals that identification tests of appellants Abdul Rasheed and Muhammad Atiq Bajwa were held before P.W.11 and identification test of Khalid Aziz was held before P.W.13. In the said tests the P.Ws.4, 9 and 18 identified the appellants Abdul Rasheed and Muhammad Atiq Bajwa before P.W.11 and assigned them the roles as mentioned above. Whereas the evidence of P.W.13 reveals that P.Ws.9 and 18 identified appellant Khalid Aziz to be the culprit who was driving the vehicle. 12. All the P.Ws. Were subjected to a very lengthy cross-examination but defence counsel could not shake their evidence. There are no material contradictions or discrepancies in their evidence. The learned Advocate for the appellants has challenged the statements of P.Ws.4, 9 and 18 on the ground that they had improved their statements by assigning the role to appellant Khalid Aziz of folding the number plates of the vehicle which they did not state in their police statements. The said contradiction has been proved in accordance with law. As such, it appears that the witnesses, in their earlier statements, did not state such fact but in the Court they deposed so. At the most, the said piece of evidence can be excluded from consideration but the remaining portions of the statements of the witnesses are supported and corroborated by all the three witnesses, therefore, because of the said discrepancy the entire evidence of the witnesses cannot be brushed aside. From the evidence it has been established that the appellants Abdul Rasheed, Muhammad Atiq Bajwa and Khalid Aziz had abducted the P.W.18. 13. The prosecution led evidence of finger prints against the appellant Abdul Rasheed. The allegation of the prosecution was that the finger prints of the culprits were obtained from the car in which P.W.18 was abducted. Aftefthe arrest of the appellant the Finger Prints Expert obtained the finger prints of the appellant Abdul Rasheed. He matched the said finger prints and found the finger prints of the appellant matching with the finger prints lifted from the car. In order to prove such allegation the prosecution examined P.W.16, S.-I. Nasrullah Khan. He stated that he wrote a letter to the Finger Prints Bureau for taking finger prints from the car of the abductee and produced the letter Exh.17 which shows that A.S.-I. Hafeezullah, Finger Prints (Investigation) lifted the finger prints from the car. The evidence of P.W.19 reveals that he requested the Finger Prints Bureau to take the finger prints of the appellants and in pursuance to his request the Bureau people came and took the finger prints of the appellant including Abdul Rasheed. The finger prints were examined by the Expert who formed the opinion that the finger prints of the appellants Abdul Rasheed matched with the finger prints lifted from the car. The report of Expert was produced under section 510, Cr.P.C. The evidence on the above point went unchallenged and uncontroverted, therefore, from the above piece E of evidence the involvement of appellant Abdul Rasheed has further been established. 14. As regards the case of appellant Junaid Ansari, the prosecution assigned him the role of providing Toyota Corolla car in which the P.W.18 was abducted, the role of sitting in the Coure car when the abductee was shifted from Toyota car to the said car and then the abductee was taken to a house where he was confined where the appellant also visited the P.W.18.
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15. In order to prove the above allegations the prosecution relied upon the evidence of P.W.12 Muhammad Saleem Lakhani, P.W.15 Muhammad Ali and P.W.18 victim Ahmed Naeem. The evidence of P.W.12 reveals that he was .Friend of appellant and was running a car showroom at Islamia College, Karachi. On 5-6-2004 the appellant contacted him and told him that he needed a car on rent, therefore, he should make some arrangement. On which P.W.12 contacted P.W.15 who was running a business of rent a car and he obtained Car No,AFG-547 Corolla on 5-6-2004 and handed it over to the appellant. This was the same car in which the P.W.18 was abducted. The evidence of P.W.15 reveals that he was running the business of rent-a-car. On, 5-6-2004, P.W.12 contacted him for hiring a car and after execution of required agreement, Car bearing No,AFG-547 was handed over to P.W.12 on rent of Rs,1,900 per day. On 12-6-2004 at 6-00 p.m. The car was returned to him. On 15-8-2004 the police informed him that the said car was involved in a criminal case. He informed the police that the car was hired to someone else and he would produce the same when he ' receives it. On the next day he produced the car before the police. The evidence of P.W.18 reveals that after his abduction from near the gate of his house the appellants Abdul Rasheed, Muhammad Atiq Bajwa and Khalid Aziz drove the car for about 15 minutes. When the car reached at isolated place in Defence area the appellants shifted him to purple colour Coure car and he was made to sit on the rear seat. The appellant Abdul Rasheed also sat with him. The purple car was driven by some unknown person whereas appellant Junaid Ansari was sitting on the front seat. Thereafter, he was taken to a house where he was confined. In the said house the appellant was visiting him. After his release the police took him to the police station where he saw cars and identified two cars, one Tyoyta Corolla bearing No,AFG-547 and the other purple colour Coure car to be the same cars, which were used in the crime. The evidence of P.W.19 Atiqur Rehman, Investigating Officer reveals that on the information received from appellant Fida Khoso he arrested the appellant Junaid Ansari from his house and secured the purple colour Coure car which was parked inside his house. The appellant, in his statement under section 340(2), Cr.P.C. Admitted that in the first week of August, 2004 he purchased that car from one Rano Khan Bhutto, father of the absconding accused Mujeebur Rahman and transferred pit in the name of his brother Abdur Rahman. He handed over the car to the police along with its papers. The evidence of P.W.13 Judicial Magistrate reveals that in the identification test P.W.18 identified the appellant Junaid Ansari to be one of the culprits who was present in the car when he was shifted from the car in which he was kidnapped from near the bungalow. 16. All the pieces of evidence show the clear involvement of the F appellant in the commission of abduction. He was the person who facilitated the shifting of the abductee from one car to another. He, then taken him to a house, where the abductee was confined, in the company of appellant Abdul Rasheed and one unknown culprit who was driving the car. His involvement is further established from the fact that he was visiting the place of captivity of the P.W.18. It has also been established that he obtained the Toyota car in which P.W.18 was abducted, therefore, he was required to explain as to under which circumstances the car was used for the commission of crime but he failed to explain the same. On the contrary, the presence of the appellant in the Coure car when the abductee was brought in Toyota car at the said place and shifted him to the Coure car clearly establishes the involvement of the- appellant with the commission of crime. Furthermore, the recovery of the Coure car further strengthened the case of the prosecution with regard to the involvement of the appellant and further that after two months of the incident the car was purchased by him from the father of absconding accused- and got if registered in the name of his brother. 17. The learned Advocate for the appellant has attacked the evidence by challenging the statement of P.W.12 that he was accomplice of the crime, therefore, his evidence should not be accepted without any corroborative piece of evidence. The learned A.A.-G. Has argued that from
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the investigation, the involvement of the P.W.12 was not established as per statement of the Investigating Officer who stated such facts, therefore, he cannot be termed as accomplice in the crime. Accomplice is a person who abets, associates or does some act in the commission of the offence. In the present case the P.W.12 deposed that he was friend of Junaid Ansari. The said fact has not been denied by the appellant in the cross-examination. In such type of relationship a friend usually helps another friend in case some need arises. The evidence of P.W.12 reveals that his friend appellant Junaid Ansari needed the services of P.W.12, therefore, he requested him for arranging a vehicle on rent, as such, in the capacity of a friend P.W.12 obliged him by obtaining the car in his name which was handed over to the appellant. There is no evidence to show that P.W.12 had any knowledge about the commission of the crime or the appellant Junaid Ansari had joined P.W.12 with him for commission of the crime. The case was thoroughly investigated by the police. The police found that P.W.12 was not involved in the case, therefore, the evidence of P.W.12 cannot be termed as evidence of an accomplice of a crime keeping in view the peculiar facts and circumstances of the case. From the evidence of P.W.12 it has been established that the Car bearing No,AFG-547 was handed over to Junaid Ansari which was used in the commission of crime and the P.W.18 identified the same to be the car in which he was abducted. 18. The learned Advocate for the appellant further stated that the culprit who was sitting in the car was having a strong build but the appellant was not having such build as observed by the trial Court, therefore, the mistaken of identity of appellant Junaid Ansari cannot be ruled out. The P.W.18, in his cross-examination, admitted that he stated in his police statement that the person who was sitting on the front seat beside driver in purple colour car was of strong build, clean shaved and wheatish colour but he further added that appellant Junaid Ansari was the person who was sitting on the front seat and at that time he was clean shaved. However, when he saw him in the Court he stated that he was having short beard and mustaches but he was not having strong build at that moment. It is pointed out that the incident took place on 11-6-2004 whereas the statement of P.W.18 was recorded on 7-1-2005. It is possible that during the period of confinement of the appellant he might have lost weight because of undernourished food, mental agony of jail and tension of the case. As such, the said fact by itself is not sufficient to discard the evidence of the P.W.18 on the identification of the appellant Junaid Ansari when he stated that at the time of incident he was strong build but when his statement was recorded and he saw the appellant he was not having strong build but the person was same. The question of identity of a person is involved. The person can be identified from the features of his face. The P.W.18 saw the face of the appellant at the time when he was taken to the house. Subsequently, he also saw him when he visited him several times at the place of his captivity. In such a situation, there was no need for holding identification test through a Magistrate because identification test is essential when the witness sees momentary glimpse of the culprit but in the present case the P.W.18 saw the appellant several times. Nevertheless, 'he identified the appellant in the identification test to be the culprit. He also identified him in the Court to be the culprit. Hence the identity of the appellant has .Been established beyond any reasonable doubt. Thus, the prosecution has proved the involvement of the appellant in the commission of the crime. 19. As regards the case of the appellant Qurban Ali Khoso the role assigned to him was of guarding the P.W.18 when he was confined in the room of a house, judicial confession and identification test. 20. In order to prove the case, the prosecution relied upon the evidence of P.Ws.18 and 13. The evidence of P.W.18 reveals that when he was confined in the room he saw the appellant oftenly guarding the place and watching him during the period of his confinement of 62 days. His evidence further reveals that he identified the appellant in the identification test held before P.W.13. The Magistrate has fully supported the evidence of P.W.18 by stating that the witness had identified the appellant to be the culprit, who was guarding him. The defence counsel could not shake the
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evidence of P.Ws. 18 and 13 on the above aspect of the case. Thus, the prosecution has proved the involvement of the appellant through the said piece of evidence. 21. As regards the judicial confession which was recorded by P.W.13, he produced the judicial confession as Exh.70. A perusal of,the confession reveals that it is an exculpatory confession as the appellant alleged that the victim was confined in his house under the threat and pressure of co- accused. The A.A.-G. And Advocate for the complainant have also not relied upon the said piece of evidence and admitted that self-exculpatory confession cannot be termed as confession under the law. We fully agree with the above view. Nevertheless, the prosecution 1 has proved involvement of the appellant through victim. 22. As regards the case of appellant Fida Hussain Khoso, the role assigned to him was of his presence in the car when P.W.18 was released and recovery of Daewoo green car. The prosecution relied…
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