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Official Citation: 2024 YLR 811
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Sohail Ahmed Siddiqui vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2024 YLR 811. In this matter between Sohail Ahmed Siddiqui and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 811
Court Name: Sindh High Court Judge(s): Nazar Akbar, Zulfiqar Ahmad Khan Title: Sohail Ahmed Siddiqui vs The State Case No.:Special Criminal Anti-Terrorism Appeals Nos. 82, 83 and Confirmation
JUDGMENT
Reported As: 2024 YLR 811 Result: Appeals allowed Judgment JUDGMENT NAZAR AKBAR, J. Appellant Sohail Ahmed Siddiqui has preferred instant Criminal Anti-Terrorism Appeals against judgment dated 07.03.2019, whereby learned Judge, Anti-Terrorism Court No.VI, Karachi in Special Cases Nos.B-486, 487 of 2015, arising out of FIRs Nos.486/2013 under sections 302, 324, 34, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997 and 150/2015, under section 23(1) (a) of the Sindh Arms Act, 2013, registered at P.S. Shahrah-e-Noor Jahan, Karachi. After full-dressed trial, vide judgment dated 07.03.2019, learned trial court convicted and sentenced the appellant as under: (1) Accused Sohail Ahmed Siddiqui is convicted in Crime bearing No.486/2013 under section 302(b), P.P.C., he is awarded death sentence to be hanged till his death, with compensation of Rs.200,000/- to be paid to the legal heirs of the victim. (2) Accused Sohail Ahmed Siddiqui is convicted in Crime bearing No.486/2013 under section 324, P.P.C., and sentenced to suffer R.I. for 5 years, with fine of Rs.50,000/-, in default whereof to suffer S.I. for six months more. (3) Accused Sohail Ahmed Siddiqui is convicted in Crime bearing No.486/2013 under section 7(1)(a) of the ATA, 1997 and is awarded death sentence to be handed till his death. (4) Accused Sohail Ahmed Siddiqui is guilty of offence under section 6(2)(n), punishable under section 7(1)(h) of the Anti-Terrorism Act, 1997 in Crime bearing No.486/2013 and is convicted and sentenced to suffer R.I. for 5 years. (5) Accused Sohail Ahmed Siddiqui is convicted in Crime bearing No. 150/2015 under section 23(1) (a) of the Sindh Arms Act, 2013 and sentenced to R.I. for 7 years, with fine of Rs.10,000/-, in default
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whereof, to suffer S.I. for six months more. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to appellant. 2. Brief facts of the prosecution case are that FIR No. 486/2013 of P.S. Shahrah-e-Noor Jahan was lodged on behalf of Qari Muhammad Hanif son of Malik Budhan by recording his statement under section 154, Cr.P.C. which was incorporated in the instant FIR on 03.12.2013 at about 2210 hours, in which it has been stated that he resided in House No.12, Umer Goth, Block-I, near Jamia Masjid Munawara, North Nazimabad, Karachi. On 03.12.2013, he went to Madani Masjid, situated at Block-I, North Nazimabad, Karachi, where he along with Moroccan religious scholars and others after offering Maghrib prayers, went for preaching (Tableegh) in the locality. After preaching, the missionary (Tableeqh Jamait) was returning to Madani Masjid, when at about 07:10 p.m. some unknown persons/terrorists appeared, made indiscriminate firing at them with intention to kill them, in result of such firing Moroccans Khitab-ul-Awadi, Abdul Majeed-ur-Ritwi and Sulaiman died at the spot while he and Shahrukh son of Sibatullah became injured. Thereafter, assailants escaped away on motorcycles. The injured were shifted to hospital by area people. Muhammad Tariq son of Shakeel Ahmed and other had seen the instant incident. His claim was against the unknown culprits for committing murder of 3 persons while causing injuries to him and another. 3. After usual investigation, challan was submitted against the accused before learned Judge, Anti- Terrorism Court under the above referred sections. 4. Learned trial court amalgamated both the cases in terms of Section 21-M of the Anti-Terrorism Act, 1997 for joint trial. 5. Trial court framed charge against the accused at Ex.5. Accused pleaded not guilty and claimed to be tried. 6. At trial, prosecution examined PW-1 Mehmood Khan at Ex.6, PW-2 Nadeem Ahmed at Ex.7, PW-3 Qari Muhammad Hanif at Ex.9, PW-4 Mujahid Hussain at Ex.10, PW-5 Muhammad Imtiaz at Ex.11, PW- 6 Javed Ahmed at Ex.14, PW-7 Muhammad Slaeem Ahmed at Ex.15, PW-8 Mehfooz Ahmed at Ex.16, PW-9 Dr. Aijaz Ahmed at Ex.19, PW-10 Mehmood Khan at Ex.20, PW-11, Sohail Ghani at Ex.21, PW-12 Hussain Mandi at Ex.22. Thereafter, prosecution side was closed at Ex.23. 7. Statement of accused was recorded under Section 342, Cr.P.C. at Ex.24. Accused denied all the incriminating pieces of prosecution evidence brought against him on record. He claimed false implication in the present cases. He stated that he was picked by Pakistan Rangers on 22.12.2014 at 12:00 noon from his wife's godown in Nazimabad No.1, on complaint of Unit In-charge of Sunni Tehrik Asif Qadri, when he was collecting monthly rent, who wants to illegally dispossess accused's wife of her property. He further stated that on 09.01.2015 the Rangers obtained his remand for three months from the Court, after 105 days he came to know that he has been implicated in the instant case; after two years of lodging of FIR he was again arrested and implicated in false case 23(1)(a) of Sindh Arms Act, 2013. He also claimed that during remand he was never taken out of the room nor was he taken to place of alleged recovery and all the witnesses are police officials. Accused did not examine himself on oath nor led any evidence in his defence. 8. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 07.03.2019, convicted and sentenced the appellant as stated above, hence these appeals are filed. 9. The learned Trial Court forwarded a Murder Reference to this Court for confirmation or otherwise of death sentences awarded to the appellant. 10. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 07.03.2019 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
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11. Learned counsel for the appellant mainly contended that memo of place of incident and recovery is doubtful as the empties were not sealed at the spot; as per memo 10 empties were recovered from the place of incident whereas PW-5 deposed that the empties were 11 in number; proof regarding remand/detention of the appellant by Rangers was not produced at trial, no ranges personal was examined at trial; PW-3, who sustained injuries in the incident is star witness, has deposed that case property was not sealed in his presence; it has been alleged that there were eye-witnesses of the incident but admittedly the appellant was not put to identification parade before the Judicial Magistrate concerned; after eight days of arrest of appellant the alleged recovery was taken place, there is a delay of 4 days in sending of pistol, allegedly recovered on the pointation of the accused, to FSL, and no explanation for such delay has been placed on record; pistol and crime empties were sent together to FSL; there is no evidence with regard to safe custody and safe transmission of crime empties to FSL; there is also overwriting in the arrest memo; one of the mashirs of memo of arrest was not present at the time of alleged arrest; confession before the police has no evidentiary value; prosecution has failed to establish chain of evidence against the appellant. Lastly, he argued that learned trial court has not properly evaluated and appreciated the evidence of prosecution witnesses, which is full of discrepancies and contradictions, as such, the impugned judgment passed by the learned trial court is not sustainable in law and prayed for the acquittal of the appellant of the charges and that the confirmation reference made by the trial court be answered in negative. In support of his contentions, learned counsel for the appellant has relied upon the case of Mushtaq v. The State (PLD 2008 SCMR 1), Asad Rehmat v. The State (2019 SCMR 1156); Sajjan Solangi v. The State (2019 SCMR 872) Hayatullah v. The Stare (2018 SCMR 2092), Nasir Javaid v. The State (2016 SCMR 1144), Tariq Pervez v. The State (1995 SCMR 1345) and Abdul Jabbar and another v. The State (2019 SCMR 129). 12. Ms. Rubina Qadir, learned Deputy Prosecutor General Sindh, argued that in the instant case, three innocent persons have lost their lives whereas two became injured in result of indiscriminate firing made the culprits; PW-3/complainant Qari Muhammad Hanif is also one of the injured persons; present appellant was arrested by the police, who confessed his guilt regarding his involvement in the instant case and on his pointation crime weapon was recovered which, according to FSL report, matched with the empties recovered from the place of incident. She also argued that act of the appellant and that of his accomplices, created sense of fear insecurity and terrorism in the minds of people available at the spot, families of the deceased and injured persons and the general public as well. She finally argued that all the prosecution witnesses have fully implicated the appellant in the instant case. She fully supported the impugned judgment and prayed that the instant appeal may be dismissed and the confirmation reference made by the trial court may be answered in affirmative. 13. We have carefully heard the learned counsel for the appellant, learned Deputy Prosecutor General Sindh for the State and have perused the prosecution evidence minutely. 14. The sole point for determination in these appeals is that, whether the appellant was rightly convicted and sentenced for the offences charged with? 15. In order to prove unnatural death of deceased Dr. Aijaz Ahmed, Senior Medico Legal Officer of Abbasi Shaheed Hospital, who conducted postmortem of deceased Abdul Majeed son of Mehmood-ul-Raqabi, Khitab Awwadi son of Ahmed Awwadi and Salman son of Saleem Ahmed opined that on external as well as internal examination of all the deceased persons, he was of the opinion that the death of the said persons was occurred due to acute firearm injuries on different parts of their bodies, leading to cardio respiratory failure and die to hemorrhagic shock, resulting from firearm weapon; time between injuries and death was instantaneous; time between death and postmortem was about 2 to 4 hours. He issued such Certificates bearing Nos.1233, 1234 and
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1235 of 2013. He also deposed that on 03.12.2013, he examined injured Qari Muhammad Hanif son of Malik Budhan, who sustained two firearm injuries and issued such Certificate No.9371/2013 Evidence of MLO goes unchallenged and un-rebutted in cross-examination. Efficiency and Integrity of the Medical Officer have not been questioned, therefore, we have no hesitation to hold that deceased died their unnatural death as described by MLO. 16. PW-3/complainant Qari Muhammad Hanif has narrated the entire episode of the incident at trial and stated that on 03.12.2013 he along with five religious scholars who came from Marakash was on visit for spreading Islamic education (Tableegh) among the Mohalla people, which is situated near Madani Masjid, Block-I, North Nazimabad, Karachi; said religious scholars stayed at .Madani Masjid. He along with two scholars of Marakash reached at the outer door of Madani Masjid for Isha Prayers, suddenly few terrorists appeared and made indiscriminate firing towards Namazis, who were entering the Masjid, in result of such firing three persons were killed, out of them two were religious scholars of Marakash whereas he sustained firearm injuries on his head, thereafter, he was brought to Abbasi Shaheed Hospital for treatment where he came to know that two other persons also sustained firearm injuries in the said incident. His statement under section 154, Cr.P.C. was recorded by police at Abbasi Shaheed Hospital and the same was incorporated in FIR. After two years of the incident, he was called at Police Station New Karachi and signatures were obtained on mushirnama of inspection of place of incident, Ex.9/C. Complainant also did not recognize his signatures on the case property available in Court in sealed condition and stated that the said empties were not sealed in his presence. 17. PW-1 SIP Mehmood Khan deposed that on 07.04.2014 he was posted as SIP at P.S. Shahrah-e- Noor Jahan and was discharging duty as SIO, when he received Roznamcha Entry regarding accused Sohail Ahmed Siddiqui, who was already detained in central prison for a period of 90 days. He left Police Station and reached at Central Prison, met with Rangers Officials, under whose custody Sohail Ahmed Siddiqui was detained for 90 days, on his request Sohail Ahmed Siddiqui was brought at Mari, where he interrogated him in FIR No.486/2013 under sections 302, 324, 34, P.P.C. of P.S. Shahrah-e-Noor Jahan, who admitted his guilt, he arrested the accused in the instant case in the presence of ASI Mujahid and SIP Qutubuddin. He further deposed that accused disclosed that he committed murder of three Marakash nationals belonging to Tableegh Jamait at Madatli Masjid, Block-1, North Nazimabad, then he took the accused from jail to P.S. Shahra-e-Noor Jahan, 10 recorded is 161, Cr.P.C. statement. In his cross-examination, he stated that there is no mention of information received from Rangers in Entry No.17, Ex.6/A, there is no mention of his meeting with Rangers personal in the memo of arrest; he changed the date from 7 to 8 in Entry No.17, Ex.6/A; he made overwriting in the memo of arrest; not mentioned the particulars of injured and deceased in the memo of arrest, he arrested the accused on 07.04.2015. He also admitted that at the time of leaving Police Station only PW ASI Qutubuddin was with him. 18. PW-2 ASI Nadeem Ahmed deposed that on 22.04.2015 he was posted as ASI at P.S. Bilal Colony, on that day SIO/P1 Hussain Mandi interrogated accused Sohail Ahmed Siddiqui son of Abrar Ahmed Siddiqui who was confined at P.S. Bilal Colony in FIR No.486/2013 under sections 302, 324, 34, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 of P.S. Shahrah-e-Noor Jahan. Accused disclosed that on 03.12.2013 at Madani Masjid, North Nazimabad at 07:00 p.m. he along with his accomplices murdered Marakish nationals by firing with firearm weapon. He further disclosed that such weapon was concealed in Nursery situated at Ship Owner College, North Nazimabad, who led the police to the pointed place. Accused Sohail Ahmed Siddiqui voluntarily went and took out one .9MM pistol, loaded with three live rounds, beneath the bricks established under the tree of Nursery of Ship Owner College and handed over the same to SIO/Inspector Hussain Mandi in his presence and in presence of HC Muhammad Ayaz, I.O. sealed the same at the spot and prepared such memo, Ex.7/A. I.O. prepared statement under section 154, Cr.P.C., which was handed over the duty officer
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ASI Sohail Ghani at P.S. Shahrah-e-Noor Jahan for registration of FIR. This PW in his cross- examination has stated that nursery was in open space and there was no boundary wall; at the time of recovery, owner of nursery was not available, chowkidar residing at the nursery along .with his family was also not present. He admitted that no effort was made by the, I.O. to associate any private witness to act as mashir of recovery. He also admitted that accused was confined for about 8 days before recovery of .9MM pistol but he did not disclose about commission of offence and concealment of .9MM pistol. He also admitted that the .9MM pistol was clear and in better condition. 19. PW-4 ASI Mujahid Hussain deposed that on 08.04.2015 he was posted as ASI at P.S. Shahrah-e- Noor Jahan under subordination of SIO Mehmood Khan and SIP Qutubuddin he proceeded towards Central Prison, Karachi for the purpose interrogation of accused Sohail Ahmed Siddiqui son of Abrar Ahmed Siddiqui in Crime No.486/2015 under sections 302, 324, 34, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 of P.S. Shahrah-e-Noor Jahan. After their arrival at Central Prison, Karachi, SIO Mehmood Khan after getting custody of above named accused, interrogated him in his presence as well as in presence of SIP Qutubuddin, during interrogation the above named accused disclosed that he along with his other companions made firing upon a group of Moroccan Nationals near Madani Masjid, Block-I, North Nazimabad, and subsequently that Moroccan nationals succumbed to firearm injuries, thereafter, they made their escape good from the place of incident. On the above disclosure of accused Sohail Ahmed Siddiqui, SIO Mehmood Khan had formally arrested him in the offence of present crime under memo at Ex.6/B, accused was took from Central Prison, Karachi and kept in police lockup, thereafter, SIO recorded his statement under section 161, Cr.P.C. In his cross-examination this PW admitted that there is cutting on the date of arrest of accused. 20. PW-5 SIP Muhammad Imtiaz deposed that on 03.12.2013, he was posted at P.S. Shahrah-e-Noor Jahan, on the said date he received complete file for investigation of Crime No.486/2015 under sections 302, 324, 34, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 of P.S. Shahrah-e- Noor Jahan along with three sealed cloth parcels for investigation. He deposed that firstly, he visited the place of incident, seized 11 empties during inspection, prepared visual sketch of place of incident, Ex.11/A, snapped photographs of the place of incident, Ex.11/B and prepared such mashimama, Ex.9/C; on 04.12.2014, sent empties and bloodstained earth to the FSL for report, thereafter, investigation was transferred to PI Hussain Mehdi, therefore, he handed over investigation papers to him. In his cross-examination this PW admitted that he recorded statement of injured Qari Muhammad Hanif and had not recorded statement of other injured Shahrukh; he had not recorded statement of one Tariq, who as per FIR was eyewitness of the incident; there is overwriting on the date of acknowledgment by FSL; and that date of sealing of the empties not available on the parcel Article "C". 21. Perusal of Memo of Inspection of Place of Incident reveals that it was prepared by SIO/SI Syed Zulfiqar Ali Shah of P.S. Shahrah-e-Noor Jahan, Karachi, prepared on 03.12.2013 at 2300 hours, whereas, in the bottom of said Mashirnama there were signatures of PW-5 SIP Imtiaz Ahmed with the date 04.12.2013. For the sake of convenience first paragraph of the Mashirnama is reproduced as under: "Before following witnesses I, SIO/SI Syed Zulfiqar Ali Shah, P.S. Shahrah-e-Noor Jahan Karachi in connection with investigation of Case Crime No.486/2013 under sections 302, 324, 34, P.P.C. read with section 7 Anti-Terrorism Act, 1997, as per pointation of the case complainant, scene of offence was examined, the brief description whereof is as under: ..........................." 22. We have minutely scanned the entire prosecution evidence available on record. Perusal of mushirnama of inspection of place of incident Ex.9/C reflects that police recovered 10 empties of
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.9MM pistol from the place of incident, sealed the same at the spot, read over the contents of same to Mashirs, who after treating the same as correct, put their signatures on it, whereas, PW-3/ complainant/mashir of said Mashirnama stated differently and belied his presence at the relevant time by deposing that after two years of the incident, he was called at Police Station New Karachi where his signatures were obtained on Mushirnalna of inspection of place of incident, Ex.9/C at police station. He also did not recognize his signatures on the sealed parcel of case property viz. empties and stated that the empties were not sealed in his presence. Admission on the part of the complainant, who is also one of the ey-witnesses of the alleged incident and sustained firearm injuries, that after two years of the incident he was called at Police Station New Karachi where his signatures were obtained on the Memo of Inspection of Place of Incident Ex.9/C, which bears the date and time as 03.12.2013 at 2300 hours has no legal sanctity in the eyes of law and cannot be relied upon, which creates about the about the prosecution version. We have also noted that the I0 in his deposition has stated that he visited the place of incident and prepared mashirnama of inspection of place of incident, Ex.9/C,- seized 11 empties whereas, as per mashirnama of inspection of place of incident, 10 empties of 9MM pistol were collected from the place of incident. 23. We have also gone through the Medical Certificate, Ex.19/H, issued by MLO, Abbasi Shaheed Hospital, which reflects that injured Qari Muhammad Hanif was brought to the Abbasi Shaheed Hospital at 07:45 p.m. with the history of firearm injuries (1) on right lateral side of head, right ear lobe with gaping wound of 0.5 cm x 0.5 cm and (2) on right side neck lacerated firearm wound of 06cm x 01cm muscle deep. We have also gone through 154, Cr.P.C. statement of complainant Qari Muhammad Hanif Ex.9/A, recorded by SIP Abdul Hameed of P.S. Shahrah-e-Noor Jahan, at Abbasi Shaheed Hospital, perusal of the same reflects that it was recorded on 03.12.2013 al 2140 hours, which bears the signatures of Qari Muhammad Hanif, same was incorporated in FIR of the instant case, date and time of lodging of FIR is 03.12.2013 at 2210 hours. We have also gone through the inspection memo of place of incident, which was prepared on the same date i.e. 03.12.2013 at 2300 hours. Keeping in view the sequence of events, we are unable to rely on memo of Inspection of place of incident, as according to the complainant Qarl Muhammad Hanif he was called at the police station after two years of the incident where his signatures were obtained on the memo of inspection. It is also surprising to note that said memo (Ex.9/C) was prepared at 2300 hours on 03.12.2013, statedly in presence of complainant, admittedly the complainant at the relevant time was admitted in injured condition at Hospital, at 2140 hours his statement under section 154, Cr.P.C. was recorded by said SIP Imtiaz Ahmed, which was incorporated in the FIR by him at 2210 hours and how it is possible that after 50 minutes, the complainant who was under treatment at Hospital would be able to accompany the police and act as mashir to the memo of inspection of the place of incident. As stated above, inspection of place of incident was carried out by SIP Syed Zulfiqar Ali Shah whereas it was signed by SIP Imtiaz Ahmed. Such memo apparently appears to be a bogus, concocted and fabricated document, as such, it carries no legal value in the eyes of law and cannot be relied upon. Preparation of such type of memo is an example of mala fide on the part of SIO lmtiaz Ahmed who conducted defective investigation of a heinous offence for the reasons best known to him. We have come to the conclusion that by preparing such type of Mashirnama of Inspection of Place of Incident, SIO/SIP Imtiaz Ahmed of P.S. Shahran-e-Noor Jahan, Karachi, has played a fraud upon the Court as well as the appellant, for which he is liable to be prosecuted. 24. Perusal of deposition of PW-2 Nadeem Ahmed reflects that appellant Sohail Ahmed Siddiqui, during custody/interrogation disclosed that on 03.12.2013 at Madani Masjid, North Nazimabad at 07:00 p.m. he murdered the Marakish nationals along with his accomplices by firing with firearm weapon and he concealed such weapon in Nursery situated at Ship Owner College, North Nazimabad, who led the police party at the pointed place and voluntarily went and took out one
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9MM pistol, loaded with three live rounds, beneath the bricks established under the tree of Nursery of Ship Owner College and handed over the same to SIO/Inspector Hussain Mandi in his presence and in presence of HC Muhammad Ayaz. This PW in his cross-examination has stated that nursery was in open space and there was no boundary wall; at the time of recovery owner of nursery was not available, chowkidar residing at the nursery along with his family was also not present. He admitted that no effort was made by the I.O. to associate any private witness to act as mashir of recovery. He also admitted that accused was confined for about 8 days before recovery of 9MM pistol but he did not disclose about commission of offence and concealment of 9MM pistol. He also admitted that recovered 9MM pistol was clear and in better condition. 25. We have also noted that the appellant in his 342, Cr.P.C. had taken plea that he was picked by Pakistan Rangers on 22.12.2014 at 12:00 noon from his wife's godown in Nazimabad No.1, on the complaint of Unit In-charge of Sunni Tehrik Asif Qadri, when he was collecting monthly rent, who wants to illegally dispossess accused's wife of her property; on 09.01.2015 Rangers obtained his remand for three months from the Court, after 105 days he came to know that he has been implicated in the instant case; and after two years of lodging of FIR he was again arrested and implicated in false case under…
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