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Petitioner: Shahid @ Aamir & another VS Respondent: The State
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Muhammad Ather Saeed Title: Shahid @ Aamir & another vs The State Case No.:Special Cr. Anti-Terrorism Appeal No.28 Of 2008Constitutional Petition
JUDGMENT
Reported As: 2015 SHC 67 Result: N/A Judgment JUDGMENT IRFAN SAADAT KHAN, J: This Special Anti-Terrorism Appeal has been filed against the judgment dated 31.10.2008 in Special Case No.54/2007 passed by the Anti-Terrorism Court No.II, Karachi, whereby the appellants/accused persons namely Muhammad Shahid @ Aamir S/o. Muhammad Rafique and Mst. Samreen @ Shahnaz Kanwal D/o. Muhammad Younus were found to be guilty of charges leveled upon them in FIR No.156/2007, u/s 363/365-A/34 PPC read with Section 7 Anti Terrorism Act, 1997, registered at P.S. Liaquatabad Supermarket, Karachi. The accused were convicted for kidnapping baby Haiqa, aged about 3 years, daughter of Nasrullah Khan and for demanding a ransom of Rs.2 Crore from him. The learned Judge after finding the said accused persons liable to be punished for offences falling u/s 6(2)(e) read with Section 7(e) of the Anti- Terrorism Act, 1997, convicted and sentenced them to R.I. for life imprisonment and forfeiture of their property. 2. Briefly stated the facts of the case are, that the complainant namely Saifullah Khan Niazi, who since has expired after the incident on 30.04.2008, reported that on 11.11.2007 he and his third wife (the present accused) alongwith baby girl Haiqa, who was his grand daughter, went to Liaquatabad Supermarket, as the accused wanted to go to the tailor. He reported that the accused and the abductee went inside the Supermarket and he remained outside the market in his car. He waited there for sometime for their return but when they did not come, after a considerable time,
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he contacted the accused and she informed him that she was coming in a while or so. The complainant again waited for sometime and thereafter once again tried to contact the accused but her mobile was switched off. Then the complainant contacted her brother, the other accused, on his mobile who informed him that Kanwal had called him that Aamir was with her and they were now at Quaidabad bus stand and were going to Badin. Mst. Samreen also told Shahid to come to Quaidabad. Thereafter when the complainant tried to contact Shahid, his phone was also switched off. 3. The complainant then had a strong suspicion that his wife, with the aid of her brother, had kidnapped his grand daughter. In the meanwhile the complainant also called his two sons who came to Liaquatabad Supermarket to enquire about the matter. Thereafter the complainant and his two sons went to P.S. Liaquatabad Supermarket for lodging the FIR. S.I Hamid Ali Gondal then went with the complainant and his sons to Liaquatabad Supermarket and while all these persons were coming back to the Police Station, it was alleged by the complainant that Shahid called and informed him that the baby Haiqa is with him and he wanted Rs.2 Crore as ransom amount otherwise he will kill the baby. When the complainant informed the police about the call, the police officials told him that now this case will be tried by AVCC and the matter was then referred to AVCC. The AVCC thereafter carried out certain legal formalities. On the night of 14th and 15th November 2007 Inspector Moin of AVCC informed the complainant that he had some information about the baby Haiqa and also told him to immediately reach Sohrab Goth as they were going to Hyderabad. The complainant alongwith his two sons reached Sohrab Goth at 12:00 midnight and alongwith the police party went to Hyderabad. In Hyderabad the police officials carried out legal formalities and then raided the House No.1110 at Katcha Qilla, Shah Faisal Colony, Hyderabad and from there recovered baby Haiqa. Both the accused persons were taken into custody and brought to Karachi. After fulfilling certain legal requirements these persons were thereafter produced before the learned Judge who after finding them to be guilty of the alleged charges convicted them in the manner mentioned above. It is against this judgment that the present appeal has been filed by the accused persons. 4. Mr. Abdul Razzak, learned counsel appeared on behalf of the appellants/accused persons and submitted that the charges leveled against the accused persons are totally false as they neither kidnapped the child Haiqa nor demanded the said ransom amount. While elaborating his viewpoint, the learned counsel submitted that the accused was the third wife of the complainant and her demand for share in the factory annoyed the complainant and his sons and they foisted this false case upon her and her brother. He submitted that she had gone to her parents house at Hyderabad from where she was taken into custody and all the allegations leveled upon her were false and fabricated and have been designed with the connivance of the police party. He submitted that the record of the mobile phone was also not confidence inspiring and even if for argument's sake it is accepted that they had kidnapped the child it was no where proved that any ransom amount was ever demanded. Hence according to the learned counsel at worst this could be a case of kidnapping only falling under Section 365 PPC and not that of a case of kidnapping with ransom falling under Section 365-A read with Section 6(2)(e) and Section 7(e) of the Anti- Terrorism Act, 1997. In support of his submissions the learned counsel has relied upon the following judgments: 1. Waqar Nazir and others V/s The State [2007 SCMR 661] 2. Muhammad Akram V/s The State [2009 SCMR 230] 3. Muhammad Zubair and 2 others V/s The State [2010 P. Cr.L.J 1892]
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4. State through Advocate General, Sindh V/s The State [PLD 1997 S.C. 408] 5. Imamuddin V/s The State [2005 YLR 845] 6. Gul Sher and 2 others V/s The State [2004 YLR 1355] 7. Abdul Adeel and others V/s The State [2009 SCMR 511] 8. Dr. Khalid Moin and others V/s The State and others [2006 P.Cr.L.J 639] 9. Dr. Muhammad Abrar Younus and another V/s The State [2010 YLR 1674] 10. Khalid Javed and another V/s The State [2003 SCMR 1419] 11. Irshad Ali alias Ishoo and 2 others V/s The State [PLD 2006 Karachi 178] 12. Muhammad Asghar V/s The State [PLD 2008 Supreme Court 513] 13. Ghulam Murtaza V/s The State [2010 P Cr.L.J 461] 14. Unreported judgment of D.B. of this Court in the case of Muhammad Ramzan and others V/s The State 5. The learned DPG on the other hand has supported the order passed by the Anti-Terrorism Court and submitted that the child was recovered from the accused persons who took the baby to Hyderabad. She further submitted that from the evidence and the depositions of the PWs, it is proved beyond reasonable doubt that the accused persons were involved in the said kidnapping which is considered as a heinous crime against the society and hence the accused persons do not deserve any leniency in this regard. She further submitted that the learned Judge has passed an elaborate and exhaustive order by discussing each and every aspect of the case, hence his order may be affirmed. Learned DPG was also of the view that the accused Samreen was a greedy person who firstly demanded from the complainant to give her the original papers of the factory and when the complainant refused to do so kidnapped his grand-daughter for extracting illegal money from him. In the end learned DPG submitted that the accused persons do not deserve any leniency as kidnapping of a child is a crime against the society, hence the sentence awarded to them by the Anti-Terrorism Court may be affirmed and the present appeal may be dismissed. 6. We have heard both the learned counsel at some length and have also gone through the records of the case and the judgments relied upon. 7. In our opinion, it would be in fitness of things if the depositions of the PWs be first examined. PW-1 Rizwan Ahmed, who is an Estate Agent, has submitted that he is running an Estate Agency in Katcha Qilla, Shah Faisal Colony, Hyderabad. On 12.11.2007 Shahid came to him and asked that he wanted a house on rent. He then took Shahid to a house and informed him that the rent of the said house would be Rs.1800/- p.m. and also informed that he has to pay Rs.3000/- as advance. Shahid then requested for 2/3 hours to bring his family and then after Isha prayers came alongwith co- accused Samreen and minor baby, whom he introduced to be his wife and daughter. The house was then given to Shahid on rent. Rent agreement was thereafter prepared on the next day. He further submitted that on 15.11.2007 at about 8:00 p.m. police raided the house and recovered baby Haiqa and arrested both these persons. Thereafter the police made him prosecution witness and he was asked to produce rent agreement etc. It is noted from the statement given by Rizwan that he firstly stated that his statement was not recorded by the police then contradicted his above statement and submitted that his statement was recorded. He also stated that his statement was not recorded by the Magistrate then again stated that his statement was recorded. He also stated that baby was calm and quite in the lap of Samreen. He also submitted that his house was let out for the first time to Shahid. He also stated that at the time of the raid a number of people gathered at the spot.
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8. PW-2 Muhammad Javed, who is brother of Muhammad Rizwan, in his deposition, stated that he works in a private firm and on 15.11.2007 while he was going to his office with his friend Irfan Sheikh he saw police at the house of his brother and he also acted as mashir in this case. He, however, stated that his brother prior to giving his house on rent to Shahid had previously given the house on rent to some other person also, which statement is contrary to the statement given by his brother. 9. PW-3 Nasrullah Khan, who is father of the abductee, in his deposition, stated that Shehnaz Kanwal was the third wife of his father and the nikah was solemnized on 02.11.2007 at his house. He also stated that on 11.11.2007 his father took Samreen and his daughter to the market. He also stated that at about 4:00 pm, while he was returning to his home, he was asked by his father to immediately reach Liaquatabad Supermarket. However when he reached there alongwith his brother Samiullah, he was further informed by his father that in his opinion Samreen had kidnapped and taken away his daughter. Thereafter they went to P.S. Supermarket and informed the police accordingly. The police then assigned the investigation to I.O. Inspector Hamid Ali Gondal, who is PW-5 in the present case. The I.O. alongwith the complainant and his two sons visited the place. The I.O. was also informed that his father had received a call on his mobile from the mobile of Samreen and some male person was talking who informed his father that baby Haiqa was with them and demanded Rs.2 Crore as ransom. He also stated that kidnapper gave 10 days time for payment of the ransom amount otherwise he threatened that he will kill the child. The I.O. then informed the complainant as now the case had taken a new shape it would be investigated by AVCU and thereafter all the proceedings were carried out by AVCU. He also stated that ransom amount was thereafter on negotiations with the kidnapper reduced to Rs.45,00,000/-. He also stated that between the night of 14th & 15th Inspector Moin called his father to reach Sohrab Goth and rest of the deposition is same as that of the facts mentioned supra. 10. PW2 submitted that after the arrest and recovery of the child they proceeded to Karachi and reached AVCU, where his daughter was handed over to him and a receipt in this regard was obtained from him by the AVCU. He however admitted that the name of Samreen was not mentioned in the FIR. He also admitted that his daughter was having very good relations with Samreen. He also admitted that he first met and saw Samreen at the factory of his father two months prior to the nikah. He also admitted that nikah took place at their house and one week prior to the nikah also his father brought Samreen at the house. He also stated that the mobile in use of Samreen was purchased by his father and was given to her. He also stated that though in the nikahnama the age of Kanwal was mentioned as 24 years but infact she was 48/50 years old. He also admitted that his father was murdered and he had lodged a FIR at P.S. Malir Cantt, against the fourth wife of his father. He also admitted that his father married four women, two of them were divorced, one died and his fourth wife was Mst. Khursheed. He also admitted that he did not go inside the market to trace Samreen and his daughter. He also admitted that his statement was recorded after arrest of the accused and recovery of the child. He also admitted that no suggestion was given by him to the I.O. for putting observation and recording the conversation of the mobile phone in use of his father. He also admitted that he has not mentioned that they first went to Makki Shah P.S. and from there to Katcha Qilla for the purpose of raid. He also stated that no statement of his wife i.e. mother of the child was recorded by the I.O. 11. The deposition of PW-4 Saifullah, who is real uncle of the child, reveals somewhat same story as that of PW-3. However, he stated that on 11.11.2007 his father, Samreen and child Haiqa went to Cantt. Bazar, Malir, whereas the fact was that they all went to Supermarket, Liaquatabad. He has also stated that he works at the factory of his father where he goes daily in the morning and comes
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home at night. He also stated that he saw Samreen for the first time at the time of nikah. It is very strange to note that PW-3 stated that he met Samreen at the factory of his father two months prior to the nikah and one week prior to nikah also at their home, when his father brought her home however PW-4 who used to work with his father in the same factory has never met Samreen whereas his brother had seen her two months prior to nikah at the factory and one week prior to nikah at their house also. It is also strange to note that nobody, including the then I.O. Hamid Ali Gondal, went inside the market to enquire about Samreen and baby Haiqa from any shopkeeper at Supermarket Liaquatabad. He also stated that mobile was neither in the name of the accused nor was given to her by his father, whereas PW-3 has stated that the said mobile was purchased by his father and was given for use to Samreen. He has also stated that his statement under section 161 Cr.P.C was recorded by the police after the arrest of the accused. 12. The deposition of PW-5, Hamid Ali, SIP posted at P.S. Supermarket, reveals that he was on duty when the complainant alongwith his two sons came to P.S. for reporting about the kidnapping of the child. He alongwith the complainant and his two sons went to the place for inspection and when he was informed about the demand of ransom amount by the complainant he told them that now the case would be investigated by AVCU. He however has stated that while on visit to Supermarket neither he enquired from any shopkeeper of the market nor went inside the market to make a proper enquiry in this regard. He also stated that his statement under section 161 Cr.P.C was recorded by AVCU police after the recovery of the abductee. He also stated that he did not check the mobile of the complainant to verify that whether any call was made by the accused about the demand of the ransom amount, while he was with the complainant at that time and the complainant categorically informed him about receiving of a call from kidnapper not only about the kidnapping but also about the demand of ransom amount. 13. The deposition of PW-6, Muhammad Arif, ASI posted at P.S. B. Section Hyderabad, reveals that he was posted at P.S. Makki Shah when police officials came from Karachi and informed him that a raid is to be conducted at a house and thereafter a raid was conducted and baby Haiqa was recovered from the house. He however admitted that there is neither any entry about the police officials who raided the house nor there is any entry about the return of the police officials from the said raid. 14. The deposition of PW-7, ASI Ali Akber, reveals that he was posted at AVCC and alongwith Inspector Moin, who is PW-12 in the present case; he obtained the data of the mobile phone. He however admitted that there is neither any seal nor signature of any CPLC official on the mobile record obtained by them. 15. PW-8, Muhammad Iqbal is H.C., posted at P.S. Supermarket. He in his deposition stated that on 11.11.2007 the complainant alongwith his two sons came to P.S. for lodging the FIR and S.I. Hamid Ali went alongwith them to inspect the place. He however admitted that his statement was not recorded by the I.O. of this case. 16. PW-9, Muhammad Afzal, SIP posted at P.S. Supermarket, in his deposition narrated the same facts as stated by PW-8. 17. PW-10, Shazia Naseer, who is wife of PW-4, in his deposition, stated that on 15.11.2007 at about 11:00 in the morning the police brought baby Haiqa at home, who was kidnapped by the accused persons. She also stated that she came to know about the recovery of the child from her husband
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on telephone. 18. No statement of PW-12, who is the abductee, was recorded as it was observed by the learned Judge that she is not capable to depose and therefore her evidence was not recorded. 19. The deposition of PW-12, Inspector/I.O Moinuddin posted at AVCC, reveals that the case was marked to him for investigation on 14.11.2007. He received spy information that the abductee was in Hyderabad and thereafter he informed the complainant to come to Sohrab Goth at 12:00 midnight. He also stated that he alongwith his police party went to Hyderabad and with the help and aid of Hyderabad police raided the house and arrested the accused and recovered the baby. He however admitted that the statements of SIP Hamid Ali Gondal and SIP Muhammad Afzal of P.S. Supermarket under section 161 Cr.P.C were recorded by him after the arrest and recovery of the child. He also stated that he has not recorded the statement of the mother of the child. He also stated that though he recorded the statement of the wife of Saifullah on 14.11.2007 but did not record the statement of the complainant and his two sons on the same day. He also stated that no effort was made by him to enquire from any person at the Supermarket. He also admitted that there is no entry in the roznamcha of P.S. about spy information received by him. He also admitted that there is no mention about D.S.P. Rao Aslam, who accompanied them while they went to Hyderabad for recovery of the abductee. He also admitted that no search warrant was obtained from the area Magistrate regarding the said raid. He also admitted that though a large number of people gathered at the spot but no private person from the public was made a mashir in this case. He also admitted that he did not check the record of the sims recovered from the accused Shahid. He also admitted that no entry of arrest and recovery was made in the Police Station Makki Shah. He also admitted that neither any effort was made by him to enquire about the veracity of the rent agreement from the stamp vendor nor he verified the witnesses who had signed the rent agreement. He also admitted that no application was given by him to CPLC for recording the conversation between the complainant and the accused. He also admitted that there is no signature and official seal of any CPLC official on the mobile phone data. He also admitted that in the sketch prepared by him about the house no kitchen had been mentioned. He also admitted that the official of the CPLC from whom he obtained the record was not made a witness in the present case. He also admitted that so far as mobile No.0323-2003261, which was alleged to be in use of Samreen, belongs to one Abdul Qadir whose CNIC number was also mentioned in the application and no effort was made to trace out the said Abdul Qadir whose address, according to him, was found to be fake. He also admitted that no effort was made by him to check the CNIC number of the said Abdul Qadir from NADRA. 20. The statement of the accused Shahid, given under Section 342 Cr.P.C., reveals that he has categorically stated that he was arrested from the house of co-accused Samreen from Hyderabad and baby Haiqa was not with them. He also stated that except his NIC nothing was recovered from him. He pleaded that he is innocent and due to enmity has been involved by the complainant, his sons and the police. 21. The statement of the accused Samreen, recorded under Section 342 Cr.P.C., reveals that she has stated that police had forcibly obtained her signatures on the rent agreement and that she was arrested by the police from her parents' house at Hyderabad. She also stated that the articles, which are alleged to have been recovered from her, were already in possession of the police and the complainant party and due to the enmity she had been falsely involved in the present case.
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22. Perusal of the above facts depict divergent depositions on behalf of the PWs. It is an admitted fact that the complainant married Samreen on 11.11.2007 at his house. It is strange to note that when PW-1 Rizwan Ahmed produced the rent agreement, why no attempt was made by the police to examine the witnesses who had signed the agreement. It is also strange on the part of the police that when they raided the house, which admittedly was situated in a thickly populated area, why no mohallah people, except the brother of Rizwan, was taken as mushir and private witness. The statement given by PW-1 Rizwan also reveals that he has given divergent deposition with regard to the statement recorded by the police and the Judicial Magistrate. We have also noted that there is a contradiction with regard to his deposition as he has stated that the said house was not previously rented out to any person, whereas according to deposition of his brother the said house was previously rented out to some other person also. We have also noted that the witness No.2 of the rent agreement and witness No.1 of the power of attorney obtained by PW-1 from his wife are the same person i.e. Abdul Aziz who was not examined by the police for verification. 23. We have also noted divergent deposition of PW-3 Nasrullah that when he reached the Supermarket why no attempt was made by him to go inside the market to enquire about Samreen and his daughter Haiqa and ask from the shopkeepers about them and why he did not suggest to I.O. to record the conversation between the alleged kidnappers and his father. It is also strange that why statement of his wife i.e. mother of the child was not recorded by the I.O., whereas statement of the wife of Saifullah, PW-4, was recorded by the said I.O. It is also noted from the deposition of PW-4 that he saw Samreen for the first time at the time of nikah at his house, when he used to attend the factory of his father daily. Whereas PW-3 has stated that two months prior to nikah he met Samreen at the factory of his father. There is also a contradictory statement with regard to the mobile in use of Samreen. It is also strange on the part of PW-5, who went with the complainant and his two sons at Supermarket, that he did not entered in the market and enquired from any shopkeeper about Samreen and the child. It is also strange to note that when the complainant informed him about receiving of the call from the alleged kidnapper, why no attempt was made by him to either check the mobile or to record the same. 24. All the above PWs have admitted that their statements under section 161 Cr.P.C were recorded by the I.O. Moinuddin after the arrest of the accused persons and after the recovery of the child which also cast doubts. It is also noted from the deposition of PW-6 Muhammad Arif, ASI posted at P.S. B-Section Hyderabad, that no entry of the police officials, who conducted the raid was recorded by him. It is also noted from the deposition of PW-7, Ali Akber, that the CPLC record obtained by him does not bear either the seal or signature of any official. It is also noted from the deposition of PW-12, who is the I.O of the case, that no plausible explanation has been given by him as to why the 161 Cr.P.C. statements of all the PWs were recorded after the arrest of the accused and recovery of the child. We have also noted that no attempt was made by him to make any enquiry from any person from the Supermarket and no statement of mother of the abducttee, who lives in the same house, was recorded by him though he had recorded the statement of the wife of PW-4. We have further noted that he has stated that DSP Rao Aslam informed him that he will also go with the raiding party to Hyderabad but there is no mention about DSP Rao Aslam being…
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