Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: THE STATE VS Respondent: NAZIR AHMAD and others
Court Name: Supreme Court of Pakistan Judge(s): Ajmal Mian, Sh. Riaz Ahmad, Munawar Ahmed Mirza Title: THE STATE vs NAZIR AHMAD and others Case No.:Criminal Appeals Nos.237, 238, 239 and 240 of 1992 Criminal Appeals
JUDGMENT
Reported As: 1999 SCMR 610 Result: Order accordingly Judgment JUDGMENT ' MUNAWAR AHMED MIRZA, J.---These appeals, by leave to the Court, are directed against judgment dated 26-2-1992 passed by High Court of Sindh, Karachi. 2. Relevant facts briefly mentioned are that on 24-8-1990 Mehboob Elahi lodged F.I.R. No.410 of 1990 with Police Station Bahadurabad, Karachi, alleging that his son Hassan Mehboob aged about 16 years went in his Car No.R-6536 to Bungalow No.15 of Jehangir Syed Shahzad, near P.I.A Hospital, but did not return. Around 3-30 p.m. Complainant was informed that above car wherein his son had gone, was lying abandoned in a lane at some distance from abovementioned bungalow. Investigation commenced and extensive measures were adopted to trace out the son of complainant, namely Hassan Mehboob. 3. On 7-10-1990 at 5-40 a.m. Investigating Agency received reliable information about the culprits. The police party held "Naqabandi" near Karam Ceramics Factory, and intercepted a Suzuki Pick-up, coming from the direction of Hub. Two persons namely, driver Dhani Bux and Suleman, each of whom was carrying .32-bore pistol loaded with six live bullets, being suspects were apprehended alongwith above unlicensed pistols and loaded bullets. Interrogation revealed that both these accused were kidnappers and also connected with abduction of Hassan Mehboob. On their pointation police party raided Bungalow No.34-A, Khayban-e-Janbaz, Defence Housing Society, Karachi. Chowkidar Nazir Ahmed was found in possession of a kalashinkov with magazine having 20 live bullets which were secured from his possession. Besides, a .22-bore rifle, loaded with five bullets and a repeater magazine loaded with fifteen bullets of kalashinkov were also recovered from said house. Recovery memo. Exh.10 was prepared by A.S.-I. Muhammad Maroof. During
---
## Page 2
investigation Chowkidar Nazir Ahmed made disclosure about active involvement of Abdul Sattar Niazi, Muhammad Asim, Komail, Imran, and Din Muhammad alias Dino (absconding accused); in the abduction of Hassan Mehboob and his captivity. Thereafter, on the pointation of Nazir Ahmed Chowkidar, co-accusedrespondent Abdul Sattar Niazi was apprehended by D.S.P. Arshad Kiyani from his house situated in Dhobi Ghat Niazi Colony vide Mashirnama Exh.11. Abdul Sattar Niazi led police party to the house of accused Muhammad Asim situated in Jirmah Cooperative Housing Society from where he was taken into custody. Similarly accused Muhammad Asim got arrested co-accused Imran and Komail on 8-10-1990. Car No.221-421 used for kidnapping Hassan Mehboob was recovered at their instance from show-room of J.K. Motors situated in Sindh Muslim Housing Society, which on the basis of document was obtained by the accused on rent. 4. During the course of further interrogation accused-respondent Muhammad Asim also volunteered for arranging to produce ransom of Rs,3,00,000 (Rupees three lacs) received by him and kept with P.W.4 Abdul Wahid a carpet dealer. Consequently in presence of Mashirs said amount of Rs,3,00,000 (Rupees three lacs) lying in 'Khaki' coloured envelope consisting of three bundles of notes with denomination of Rs,1,000 each were secured through Mashimama Exh.15. On 19th October, 1990, accused Dhani Bux pointed out oil-tanker No.QA-4510 belonging to 'Chair Muhammad of Village Haji Muhammad Goth Manghopir wherein Hassan Mehboob after being kidnapped was shifted. This was recovered through memo. Exh.35. On 20-10-1990 accused Suleman gave confessional statement Exh.30 before C.I.A. Magistrate. Identification parade of Suleman, Dhani Bux, Abdul Sattar Niazi and Nazir Ahmed was also held through kidnapee Hassan Mehboob on 20-10-1990. After completion of investigation concerned police submitted challan before Judge, Special Court-II (Suppression of Terrorist Activities) at Karachi, under sections 365 and 365-A/34 on 21-10-1990 against seven accused persons namely, Muhammad Asim, Dhani Bux, Suleman, Nazir Ahmad, Komail Abid Sherazi, Muhammad Imran and Abdul Sattar Niazi; whereas Din Muhammad alias Dino was shown absconder. 5. After the commencement of trial Special Court-II (S.T.A), Karachi, framed charge against above- named seven accused persons under sections 365/34 and 365-A/34, P.P.C, which was refuted and they pleaded 'Not Guilty'. Prosecution has examined 11 witnesses, who are, S. Abdul Jabbar, Car Dealer, P.W.2 Muhammad Yousaf, P.W.3 Arshad Mehmood Butt, A.S.-I, C.I.A, P.W.4 Abdul Wahid, Carpet Dealer, P.W.5 Mehboob Elahi (Complainant), P.W.6 Afzal Baig, H.C, C.I.A, P.W.7 Hassan Mehboob (kidnappee), P.W.8 Munawar, Property Dealer, P.W.9 Syed Shehzad Dehli Naqi, Magistrate, P.W.10 Sultan Masood Kiyani, Inspector C.I.A. And P.W.11 Sabir Hussain, S.I. Besides, recovery memos., confessional statement of accused Suleman and other related documents were produced through these witnesses. After close of prosecution side; trial Court examined the accused on 2-6-1991 under section 342, Cr.P.C. They all denied the prosecution accusations in their respective statement. Muhammad Asim additionally stated that he was absolutely innocent and prosecution witnesses have falsely deposed against him. Said accused maintained that Rs,3,00,000 (Rupees three lacs) recovered from P. W.4 Abdul Wahid was his personal money and delivered to said witness for purchasing a suitable motor-car. Accused stated that he belongs to a rich family and furnished bank statement to show his financial position. According to him D.S.P. Arshad Kamal Kiyani was hostile towards him because during June 1990 his car was illegally seized by said D.S.P, whereupon the accused/respondent Asim lodged a complainant before Chief Minister, Sindh, who issued directions for taking action against the D.S.P. According to him the Investigating Officer namely, Masood Kiyani is brother-in-law of Arshad Kamal Kiyani and has been got involved him at his instance. Accused Dhani Bux in his statement has explained that on 26-2-1990 his elder brother namely, Haji Punoo lodged F.I.R. With Anti-Corruption Establishment against A.S.-I. Muhammad Rafique for demanding illegal gratification in connection with case of their relative Muhammad Hassan. This event annoyed said Muhammad Rafique whereupon his accomplice A.S.I.
---
## Page 3
Muhammad Maroof started giving him threats of dire consequences. Accused Dhani Bux explaining his position maintained that Hassan Mehboob (abductee) has implicated him at the instance of police. Accused Suleman asserted to have been falsely involved in this case by Inspector Sultan Masood Kiyani and elaborated that Inspector Aziz-ur-Rehman had kidnapped some unknown persons and Inspector Sultan Masood Kiyani raided house of Ghulam Qadir who was not present whereas police party unjustifiably arrested him and brought to C.I.A. Lock-up. It is stated.By accused/respondent Suleman that police had tortured him and when despite pressure he declined to give any statement against Ghulam Qadir they have fabricated documents of identification test and have managed his false implication through Hassan Mehboob. It was emphasised that Hassan Mehboob has acted at the instance of police. Accused Suleman expressly stated that co-accused Asim, Komail, Dhani Bux, Abdul Sattar Niazi and Nazir Ahmed were not known to him at all. Abdul Sattar Naizi similarly has asserted personal enmity with Ex-SSP C.I.A. Namely Habibullah Niazi who on a previous accused attempted to bracket him in a false case. According to him police at the instance of said Habibullah Niazi was harassing him and his family members. Accused in their defence have got recorded statements D.W.1 Abdul Sattar Niazi, D.W.2 Arshad Javed Niazi, D.W.3 Yousaf Khan, D.W.4 Zafrullah Khan, D.W.5 Nazir Ahmed, D.W.6 Dildar Ahmed Rajput, D.W.7 Dhani Bux son of Allah Dino and D.W.9 Suleman Brohi. 6. Trial Court on appreciation of entire evidence led by prosecution and defence has decided the case vide judgment dated 4-8-1991 through which learned trial Judge found accused/respondents (i) Suleman, (ii) Dhani Bux, (iii) Nazir Ahmed, (iv) Abdul Sattar Niazi and (v) Muhammad Asim guilty and convicted them under section 365-A/34, P.P.C. By awarding sentence of undergoing imprisonment for life and to pay fine of Rs,50,000 (Rupees fifty thousand) each; or in default to suffer further R.I. For three years each. Whereas accused Komail and Imran were acquitted of charge for want of evidence. Proceedings against Din Muhammad alias Dino (absconding accused) were kept on dormant file. Ransom amount of Rs,3,00,000 (Rupees three lacs) was directed to be returned to complainant Mehboob Elahi. 7. Aggrieved from above conviction and sentence four Criminal Appeals Nos.194 of 1991 (Nazir v. State), 205 of 1991 (Dhani Bux and Suleman v. State), 206 of 1991 (Hafiz Muhammad Asim v. State and 207 of 1991 (Abdul Sattar Niazi v. State) were filed before High Court of Sindh, Karachi. These appeals were decided by the Division Bench of High Court of Sindh through common judgment dated 26-2-1992 whereby the appeals were accepted and accused/respondents were directed to be acquitted. The amount of Rs,3,00,000 (Rupees three lacs) was ordered to be refunded to accused Muhammad Asim. 8. The State being dissatisfied from above decision regarding acquittal of the accused- respondents had preferred Criminal Petitions for Leave to Appeal No.54-K of 1992 (State v. Nazir Ahmed), 55-K of 1992 (State v. Dhani Bux and Suleman), 56-K of 1992 (State v. Muhammad Asim) and 57-K of 1992 (State v. Abdul Sattar Niazi) before this Court after delay of 63 days which came up for hearing and leave was granted to reappreciate the evidence in the light of contentions raised by the learned State Counsel. The leave granting order is reproduced below:-- "Above petitions are barred by 63 days and the learned Additional Advocate-General has requested for condonation on the grounds that it is a criminal case and since leave is being sought against the judgment of acquittal, several formalities had to be observed and final approval had to come from the Government hence time was consumed and delay had occurred in obtaining such approval. We leave this issue open to be decided at the time of regular hearing. ' By these four petitions leave is sought to file appeals against impugned judgment dated 26-2- 1992 of Division Bench of High Court of Sindh at Karachi, whereby four criminal appeals were heard together and lowed setting aside convictions and sentences. In petitions before us, in one Criminal Petition No.54 of 1992 there are two respondents namely, Dhani Bux and Suleman, who had filed
---
## Page 4
joint appeal in the High Court. Five respondent before us and two other co-accused were put on trial in the Special Court-II at Karachi for offence under section 365/34, P.P.C. It was alleged by the prosecution that a young boy by name Hassan Mehboob was kidnapped for ransom. Trial Court while acquitting two namely, Komail and Imran convicted rest under section 365/A, P.P.C. And sentenced each to life imprisonment and fine of Rs,50,000 or in default R.I. For three years. Ransom amount of Rs,3 lacs recovered during investigation was directed by the trial Court to be returned to complainant Mehboob Elahi, who is father of kidnapee. Four appeals filed by convicts have been allowed by the High Court vide impugned judgment resulting in their acquittal. ' It is submitted by learned A.A.-G. That in this case there is cogent evidence legally justifying conviction which has not been properly evaluated by the High Court particularly when kidnapee himself has picked out respondents correctly in the identification parade. It is further stated that in this case ransom amount recovered has been ordered by the High Court to be paid back to respondent Asim from whom it was recovered. It is further submitted that there are several law points of public importance involved in this case. We, therefore, grant leave in this case to reappraise the evidence in the light of contentions raised before us. Issue bailable warrants against the respondents who have been acquitted in the sum of Rs,50,000 each with one surety in the like amount to be executed by and to the satisfaction of the trial Court. Paper book is to be prepared on the present record and it is open to the parties to file additional documents, if any." ' Accordingly above petitions were converted into Appeals Nos.237 to 240 of 1992, respectively. 9. It may be seen that respondents Nazir Ahmed, Dhani Bux, Suleman in Criminal Appeals Nos.2,37 and 238 of 1992 have not been served despite best efforts on account of their shifting the place of residence or slipping away, thus, police tuts shown inability to execute non-bailable warrants issued against them by this Court for want of their whereabouts. Consequently this Court on 10-11- 1998 directed that perpetual warrants should be issued against them. Relevant portion of order passed in above two matters is reproduced below:-- "The above Criminal Acquittal Appeals are pending since 1992. It seems that in spite of issuance of repeated warrants of arrest, respondents Nazir Ahmad Chowkidar, Suleman and Dhani Bakhsh have not been served. The only course now left open is to issue perpetual warrants of arrest and to proceed with the matter. ." 10. When arguments commenced it was brought to our notice that Abdul Sattar Niazi respondent in Criminal Appeal No.240 of 1992 has been murdered on 8-9-1998. Verification of this fact was also made by S.S.P., Karachi South, whereupon the proceedings in said appeal were disposed of by passing following order:-- "Since respondent Abdul Sattar Niazi has been murdered on 8-9-1998 which is subject-matter of F.I.R. No.126 of 1998 registered on 8-9-1998. This fact has been confirmed by S.S.P. South Karachi on the basis of S.S.P., West Karachi letter dated 10-11-1998. ' In view of the above position the above appeal is dismissed as having become infructuous." 11. Learned Additional Advocate-General seriously criticizing correctness of impugned judgment whereby respondents have been acquitted contended that factum of abduction with regard to Hassan Mehboob son of the complainant has not been disputed at any stage. Evidence produced by the prosecution overwhelmingly establishes different factors and sequences which explicitly support direct involvement of the accused persons in commission of offence covered by section 365-A/34. Learned State Counsel greatly stressed that ransom amount of Rs,3,00,000 (Rupees three lacs) coincides with the amount deposited by respondent Hafiz Muhammad Asim with P.W. Abdul Wahid, Proprietor of King Carpets, Tariq Road, Karachi. Defence evidence clearly connects the said respondents and other material on record. Learned Additional Advocate-General canvassed that depositing of Rs,3,00,000 with a carpet dealer for purchasing a car despite being strange and unbelievable displays weakness of his stand taken in the present case. It was
---
## Page 5
additionally argued that abductee or his father (complainant) apparently had no motive against any of the accused person, therefore, they had given true details of what had happened. These details coupled with other set of prosecution evidence; demonstrate sufficient and convincing basis for proving charge against the respondents. 12. As regards delay in filing of appeals learned Additional Advocate-General pointed out numerous obstacles concerning prosecution and measures adopted for procuring sanction of the competent Authority for filing appeals. Learned State Counsel argued that respondents are responsible for commission of heinour crime which should not go unpunished merely on account of technicalities and minor omissions on the part of concerned official. 13. Mr. K.M.A. Samdani, Senior Advocate Supreme Court for respondent Muhammad Asim in Cr.A. No.239 of 1992 opposing the appeal canvassed that version of complainant Mehboob Elahi remained unsupported by independent evidence, therefore, his testimony is not confidence inspiring. Learned counsel maintained that identification tests were materially defective and inadmissible. Similarly according to him, confessional statement of respondent Suleman was neither true nor voluntary, thus it does not by any means implicate respondent Muhammad Asim. He emphasized that High Court while reappraising entire evidence had correctly assessed the same and interfered with defective findings of the trial Court on the basis of sound reasoning. He pressed for dismissal of appeals. Mr. Samdani had seriously objected to the delay in filing of appeals and stated that appellant was not entitled to any preference. He, in support of his contentions, placed reliance on the observations in PLD 1981 SC 241 (Saldera v. Muhammad Yar). 14. With the assistance of learned counsel for the parties we have carefully gone through entire record and considered above submissions. We feel that for proper appreciation, it would be necessary to give brief resume from the depositiohs of witnesses. ' P.W.1 S. Abdul Jabbar deposed that he owns J.K. Motors and also carry 'Rent-a-Car business'. On 21-8-1990 at about 11/12 noon Komail accused (acquitted by the trial Court) had obtained 'Charade' Car No.221-421 on rent after fulfilling requisite formalities. On 28-8-1990 said Komail returned the amount due on account of car-rent. Witness stated that later car was secured from his show-room vide Exh.7 on 8-10-1990. ' P.W.2 Muhammad Yousaf the owner of New Crown Motors and resident of Mohallah where house of above-referred Komail accused is situate. The witness stated that on 21-8-1990, accused Komail approached for renting out a car. Witness referred him to J.K. Motors in the businesss of 'Rent- a.Car; who then took over rent-car on 21-9-1990 and returned it towards 28-8-1990. ' P.W.3. Arshad Mahmood Butt, A.S.-I., C.I.A. Centre, in his testimony before trial Court stated that on 7-10-1990 he accompanied Inspector Sultan Masood Kiyani, S.I. Latif Sheikh, A.S.-I., Maroof, A.S.-I. Aijaz and other police personnel for patrol duty. On receiving credible information at about 5-45 a.m. Near Karam Ceramic Factory they intercepted a Suzuki pick-up coming from Hub side towards Karachi. Accused-respondent Dhani Bux was driving the vehicle whereas accused- respondent Suleman was accompanying him. On search they secured .32-bore pistol loaded with six live bullets from each of the respondents namely Dhani Bux and Suleman. These weapons alongwith bullets were secured from the possession of above respondents under a Mashirnama. The witness further deposed that said accused-respondents on interrogation led the police party to a house No. 34-A, Clifton, Karachi, where Chowkidar Nazir Ahmad was taken into custody. Said Chowkidar was found to be connected with abduction of Hassan Mehboob. The house was also searched and 7mm rifle loaded with five bullets, one kalashinkov loaded with 20 live bullets in magazine was recovered from a room of said house. ' Mashirnama Exh. 10 was prepared at the spot. Accused persons were taken into custody. Respondent Nazir Ahmed voluntarily pointed out residence of Abdul Sattar Niazi who was found concerned with crime and later apprehended him from his house located in Dhobi Ghat, Niazi
---
## Page 6
Colony. Respondent Abdul Sattar Niazi disclosing about active participation of respondent Muhammad Asim led the police party to Bahadurabad and identified his residence. Thus, respondent Muhammad Asim was also apprehended vide Mashirnama Exh. 12. On the pointation of Muhammad Asim Bahadurabad Police apprehended Imran vide Exh.14. During further interrogation respondent Muhammad Asim admitted that ransom money was deposited by him with P.W.4 Abdul Wahid of King Carpets. Police party on the pointation of Muhammad Asim recovered said amount of Rs,3,00,000 (Rupees three lacs) vide Mashirnama Exh.15 on 14-10-1990. Complainant then produced before Inspector Sultan Masood Kiyani cassette/tape showing dialogue between him and the kidnappers; for arranging ransom amount and consequential release of his son. In cross-examination it was not disputed that Bungalow No.34/A, which was in possession of Sardars of Balochistan and Nazir Ahmed was working as Chowkidar. Witness did not dispute existence of several facts in the vicinity of said Bungalow. ' P.W.4 Abdul Wahid, proprietor of King Carpets in his statement admitted that sum of Rs,3 lacs for purchase of car was given to him by mother of respondent Muhammad Asim on 17-10-1990. This witness further tried to explain that he also deals in purchase of cars. He was, however, declared hostile by the prosecution and during cross-examination by A.P.P. It was conceded that respondent Muhammad Asim was his relative. Signature on Mashirnama regarding recovery of Rs, 3 lacs consisting of currency notes with denomination of Rs,1,000 each, was not disputed. Answering query on behalf of respondent witness admitted investment of respondent's mother in carpet business. ' P.W.5 Mehboob Elahi, in his testimony before trial Court stated that on 24-8-1990 at about 3-00 p.m. He was informed by Chowkidars of market that burglary was committed in shops of Jehangir and Sikandar, who were his relatives. Complainant then sent his son Hassan Mehboob to drop said Chowkidars near the houses of Sikandar and Jehangir. Witness deposed that his son Hassan Mehboob drove Car No.R-6536 Nissan Sunny for said purpose but did not return for quite some time. Distance of Jehangir's house being hardly drive of five minutes, complainant became perturbed and made inquiries whereupon it revealed that son of the complainant had left immediately after dropping the Chowkidars. They made efforts to locate Hassan Mehboob. It was found that car was standing abandoned in the middle of lane near P.I.A. Hospital. At about 4-00 p.m. Witness (complainant) received a call on his Telephone No.433860 wherein he was threatened not to collect so may people in the house. Telephonically it was informed that his son Hassan Mehboob was in their 'custody, and he should abstain from placing the telephone under observation. There was no contact by the culprits for eighteen days. Again on 10-9-1990 at about 7-00 p.m. a telephonic call was received enquiring whether he was prepared to pay ransom. Witness further deposed that he showed inability to pay the amount of ransom being demanded by them. The person calling him, however, gave his Coded name as "JAN". He also extended threats requiring him to remain silent. Two days thereafter "JAN" contacted the complainant and demanded ransom whereupon he asked the culprit to disclose his identity and also demanded tapes containing voice of his son Hassan Mehboob. Later another person contacted on telephone and enquired, whether tape of his son were received. The person calling on telephone further informed that his son was using medicine 'Calan' and that his uncle calls him 'Malang'. These details convinced the witness that his son was in their custody, therefore, he agreed to pay ransom which may be within his capacity. He also told that ransom was already paid by him earlier. Again telephone call was received by somebody claiming to be 'Guarantor". He asked that his son would not be harmed if ransom to their satisfaction is paid. Initially culprits demanded exorbitant amount of Rupees fifty lacs then reduced to Rs,30 to 35 lacs and ultimately agreed to the payment of Rupees three lacs assuring adbuctee's return. After telephonic discussion and negotiation the complainant was asked to bring Rs, three lacs to Mudasar Masjid in K.D.A. Scheme No.1 at 11 or 11-30
---
## Page 7
a.m. On 26-9-1990 money was kept on the third rack in the lower portion of mosque. The cash amount was placed wrapped in newspaper at specified place, as desired by the culprits. Since nobody turned up complainant brought back the money. When he reached home he received telephonic message enquiring why money was not kept there as promised. Witness informed the caller about factual position pointing out that nobody was present, therefore, he brought back the money. On the demand of culprits complainant went back to keep the money at specified place. When witness came back, the guarantor rang up and confirmed receipt of ransom amount and assured release of the kidnappee. Consequently Hassan Mehboob the son of complainant was released at the Super Highways, who reached home on 2nd October, 1990. Conversation was recorded on the tape which was retained by the Court as Article 'A'. Averments of F.I.R. Were also affirmed by the witness. Allegations about false involvement, fictitious improvement in the statement and falsity of paying Rs, three lacs twice was denied during his…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.