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Petitioner: TAUQIR ALAM and 9 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada, Syed Sajjad Ali Shah Title: TAUQIR ALAM and 9 others vs THE STATE Case No.:Confirmation Case No, 16 and Criminal Appeals Nos. 37, 38 and Criminal
JUDGMENT
Reported As: 1985 MLD 604 Result: Appeals accepted Judgment JUDGMENT ' SAJJAD ALI SHAH, J.--From these three appeals, two are Criminal Appeal No,37/84 filed by appellant Ayoob son of Saeedullah and Criminal Appeal No,38/84 filed by appellant Tauqir Alam son of Mohammad Ismail. Third is Criminal Jail Appeal No,45/84 filed from Jail by appellant Ayoob, which was registered in the High Court and got consolidated with Criminal Appeal No,37/84 filed by the counsel on behalf of appellant Ayoob. Along with these appeals there is before us reference for confirmation of death sentence awarded to appellants named above (Confirmation Case No,16/84) and we propose to dispose of these appeals and reference by single judgment. Both appellants have been convicted for offence under section 302/34, P.P.C. And sentenced to death. Appellant Ayoob is further convicted under section 376, P.P.C. And sentenced to R.I. For five years and fine of Rs,2,000 or in default R.I. For two years, Appellant Tauqir Alam is further convicted for offence under section 376, P.P.C. And sentenced to R.I. For five years and fine of Rs,2,000 or in default R.I. For two years, In fact present two appellants and other three co-accused were tried together in the trial Court for offences under sections 302, 376, 377 and 364-A read with section 34, P.P.C. And ultimately learned Sessions Judge, Karachi, convicted and sentenced present two appellants as stated above and acquitted other three co-accused namely Nayar Mirza son of Muhammad Mirza, Zafar son of Mashkoor and Ishtiaq All son of Sadiq Ali. Impugned judgment is, dated 5th April, 1984. ' Against the acquittal State has filed Criminal acquittal appeal No,125/84, which was to be heard along with present appeals but subsequently vide order, dated 16-2-1985 of learned Chief Justice, acquittal appeal was separated for the reason that the same was not ripe as respondents therein could not be served and non-boilable warrants issued against them could not be executed despite
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several attempts. There was also persistent request from the counsel of appellants for early hearing of appeals and confirmation reference of condemned prisoners and the additional ground urged was that the counsel had to go abroad for medical check-up. In such circumstances the learned Chief Justice was pleased to grant the request and in consequence acquittal appeal was separated. Before us Mr. Abdul Wahab Advocate appeared as Special Public Prosecutor appointed by Government of Sind for this particular case and appeals arising therefrom and filed an application on 25-3-1985 with request for time to enable him to move the Supreme Court of Pakistan against the order of learned Chief Justice separating acquittal appeal from confirmation case and connected appeals. Another application was filed with a request for adjournment for two weeks to enable the Special Public Prosecutor to get respondents arrested in acquittal appeal. Time was allowed as requested but neither the respondents in acquittal appeal could be arrested nor order of the learned Chief Justice was challenged in the Supreme Court and consequently the Special Public Prosecutor agreed to proceed with confirmation case and connected appeals. ' Briefly stated the prosecution case is that Taranum Aziz aged 7i years daughter of Aziz Ahmad used to study in K.M.C. School in Block No,10 in Federal 'B' Area and on 5-2-1978, she went to the school as usual but did not return. Her parents made a frantic search for her and on the same day at about 11-15 p.m. Her disappearance was reported at Police Station Gulberg by Jameel Ahmad uncle of the girl Report was noted in Entry No, 55 of Roznamcha (Exh. 6 at page No,102 of Paper book). On the following day i.e, 6-2-1978 Aziz Ahmad fatner of the girl having failed in attempts to trace her suspected kidnapping by unknown person and filed such complaint which was recorded as statement under section 154, Cr.P.C. At Police Station Gulberg at 5-30 p.m. (Exh. 11 at page No, 118 of Paper book). Both these reports of Jameel Ahmad and Aziz Ahmad, who are brother inter se, were incorporated in F.I.R. Formally drawn up at the same Police Station. (Exh. 16 at page No,123 of Paper book). Next day on 7-2-1978 at 8-30 a.m. Aziz Ahmad received a letter purporting to have been written by "July Khan" demanding ransom of Rupees one lac for safe return of his daughter. Further threat was extended that if money was not paid or any wrong step was taken then the girl would be killed. Aziz Ahmad was advised in that letter to wait for telephone call. (Letter is Exh. 13 at p. 120 of Paper book). On the same day at about 9-15 a.m. a telephone call was received by complainant Aziz Ahmad at his residence and he was asked to come to Kala Board with ransom money at 3-00 p.m. If he wanted back his daughter. Accordingly complainant Aziz Ahmad went to Kala Board near Railway line and waited there for about one hour but nobody came there to collect ransom. It would be pertinent to point out here that it is part of the prosecution case that on 7-2- 1978 at about 12-30 noon complainant Aziz Ahmad handed over ransom letter to Abdullah Khan D.S.P. Liaquatabad. Muhammad Mahboob Khan, S.I. Under the order of D.S.P. Received letter under seizure memo. Duly signed by the witnesses. (Seizure memo. Is on the record as Exh. 28 at page 164 of the Paper book). On 10-2-1978 one Badar Aftab telephoned Miss Safia Begum, Inspector of Police, at reporting center, Police Head Office, Karachi and informed about his discovery of gunny bag with suspected dead body in it lying in Federal 'B' Area. Such entry was made in Station Diary at about 10-30 a.m. (Exh. 9 at page 109 of Paper book). A.S.I. Muhammad Yousuf found gunny bag near Shia orphanage in Block No,6, Federal 'B' Area and on opening the same found dead body in it of a small girl with legs tied with belly and hands tied with feet.There was rope tied with neck and there was school bag containing books, copies, sweater and a pair of P.T.Shoes. The dead body was identified to be of missing girl Taranum Aziz by her Uncle Jameel Ahmad. Post-mortem was performed on the same day and according to the report (Exh. 18 at page 134 of Paper book). Victim girl had died of Asphyxia due to strangulation with fine rope and was subjected to rape and sodomy before death. Mohammad Khan Inspector, who was then In charge of investigation called Ayoob on 22-2-1978 and made him write in English as well as Urdu. He compared the writings with photo copy of ransom letter, which was received at Police Station Joharabad, and found some
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similarities. He took 23 specimen of handwriting of Ayoob and sent them to handwriting expert, who already had the original. On being informed on telephone by the expert that his finding was positive, Inspector Mohammad Khan took Ayoob in custody. Subsequently on the pointing out of Ayoob, Inspector took in custody Nayar Mirza,Zafar Mashkoor and Tauqir Alam. Afterwards Ishtiaq All was arrested on the pointing out of Nayar Mirza. All the accused persons in the case was arrested on 23-2-1978 and 27-2-1978 all the accused persons in the case, who were in custody of Police, made judicial confessions before Mr. Bashir Ahmad Chishti, Magistrate Police Station Gulbahar, Karachi (Exh. 58 to 62 at pages 233 to 254 of Paper book). It is further the case of prosecution that during investigation Tauqir Alam while in custody on 25-2-1978 led Police Party to a shop known as "Delux Paint Place" from where he had purchased gunny bag and rope. Shop keeper Rizwan Ahmad produced similar bunch of rope, which was seized. Tauqir Alam then led to House No,564 in Federal 'B' Area, which was unflustered and under construction and inside from an almirah from a room produced one note-book in which on one page was written draft of letter of July Khan. Note book was seized while searching the home Police also recovered 13 sanitary pads blood-stained from the garbage under mango tree in the courtyard of the house. Police also secured from the house blood-stained handkerchief, mattress and Chadar. ' Before the trial Court, prosecution examined in all 45 witnesses in support of its case. P.W.1 is Mohammad Lateef, A.S.I. (Exh.5, page 101) who made entry in Station Diary at Police Station Gulberg on 5-2-1978 of report of missing made by Jameel Ahmad and produced copy thereof as Exh.6. P.W.2 is Jameel Ahmad, who is uncle of deceased Taranum Aziz (Exh.7 at page 103). P.W.3 is Miss Safia Begum, Inspector of Police, who was informed on 10-2-1978 about discovery of dead body in gunny bag (Exh. 8 at page 108). She made such entry in the Station diary and produced copy as Exh.9. P.W.4 is complainant Aziz Ahmad, who is father of deceased girl. (Exh. 10 at page 110). He filed report about suspected kidnapping of his daughter at Police Station Gulberg on 6-2-1978 Exh. 11. He deposed in details about how he received ransom letter and subsequent telephone call for payment of Rs,1,00,000 as ransom money, which nobody came to collect and later on the dead body was discovered. When complainant was shown ransom letter Exh.13 he denied it to be the same which he gave to D.S.P. Abdullah Khan and at the request of prosecution he was declared hostile and cross-examined. P.W.5 is Roh Khan, Constable corpse-bearer (Exh. 14 at page 121). P.W.6 is Mohammad Sadiq, Sub-Inspector, who deposed that on 6-2-1978 A.S.I. Rehmatullah came to Police Station with statement under section 154, Cr.P.C. Which he entered in the book and produced copy as Exh. 16 (Deposition is Exh. 15 at pase 122). P.W.7 is Dr.Abdul Majeed Khan (Exh. 17 at p. 125). He conducted post-mortem examination of deceased Taranum on 10-2-1978 and produced post- mortem report as Exh.18. He also examined all accused persons in this case and produced their potency medical reports Exhs. 19 to 22. P.W.8 is Mohammad Yousif, A.S.I. Of Police Station Jacobabad, who on 10-2-1978 received message from Inspector Safia Begum about discovery of dead body and made such entry in Roznamcha and then went to Block No,6 near Shia orphanage, Federal 'B' Area, where gunny-bag was opened up in presence of mashirs and dead body was recovered vide Mashirnama Exh.25. P.W.9 is Mukhtar Ahmad son of Mushtaq (Exh. 27 at p. 157). He and complainant Aziz Ahmad are friends and are in the same cigarette business. Acquitted accused Ishtiaq All was driver of his father Mushtaq Ahmed at the relevant time. On 7-2-1978 he went to the house of complainant Aziz Ahmed and saw the ransom letter and also accompanied complainant in the car to the telephone office where enquiry was made about the tapping of the telephone call. He also accompanied complainant Aziz Ahmad to D.S.P. Abdullah Khan to whom ransom letter was delivered. At the request of prosecution this witness was also declared hostile. He denied that ransom letter was received by police under a Mashirnama. He was doubtful whether Exh.13 was the same ransom letter which complainant Aziz Ahmad gave to D.S.P. Abdullah Khan and after great hesitation admitted it to be same.
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' P.W.10 is Aurangzeb about 9 years old at the time of deposition and class-mate of deceased Taranum. He saw Traranum for the last time alive when outside the school, she went in a white car with black roof with two Pathan like persons who were not known to him before (Deposition Exh. 32 p. 167). P.W.11 is Allah Ditta Mashir, who has attested and produced Mashirnama of recovery of dead body in gunny bag. (Exh. 33 at page 169 of Paper book). P.W.12 is Syed Yadgar Hussain, S.I. Who took action against Zafar and Ayoob under sections 107 and 117, Cr.P.C. On the complaint filed by one Laiq All on 26-10-1977. (Objection was raised by defence counsel that this evidence was hit by section 54 of the Evidence Act and further that this witness admitted in cross that the case filed was still pending when his evidence was being recorded. (Deposition is Exh. 34 at page 170). P.W. 13 is Azizuddin Khan, who claimed to have seen ransom letter with complainant Aziz Ahmad at his residence and then at the time when it was delivered to D.S.P. Abdullah Khan. He denied preparation of Mashirnama about the recovery of that letter. He also denied that Exh. 13 was the same letter. He was declared hostile and cross-examined by the prosecution. (Deposition is Exh., 37 at page 174). P.W. 14 is Mohammad Mahboob, S.I. Who partly investigated the case in the beginning and on 7-2-1978 received ransom letter from D.S.P. Abdullah Khan and prepared Mashirnama Exh.28. He prepared photo copies of ransom letter Exh.13 and sent them to all Police Stations and original to handwriting expert. On 10-2-1978 investigation was taken over from him by Inspector Mohammad Khan of C.I.A. (Deposition is Exh. 39 at page 180). P.W. 15 Choudhry Mohammad Arif claimed to have known Zafar and Ayoob before the incident as they used to visit house of a woman Shahla in front of his house and further saw them alongwith one other person talking while two other persons, were sitting in the car on the front seat. He also saw head of a child on the back seat. Then Zafar, Ayoob and third person sat in the car which sped away. This witness went away to Pindi and when he came back, he read about this case in the papers, saw photographs and identified Tauqir as third person talking with Zafar and Ayoob. This witness wrote to the Deputy Commissioner that he wanted to give information about the case and was then called by Inspector Mohammad Khan who recorded his statement. (Deposition of this witness is Exh. 44 at page 188). It may be mentioned here that specimen handwriting of this witness was taken in the trial Court at the instance of defence counsel and with consent of Special Prosecutor for comparison with Exh.13 but no further action was taken. ' P.W. 16 is Abdullah Khan D.S.P. Who has deposed that on 7-2-1978 he was informed that complainant Aziz Ahmad had received ransom letter so he called S.I. Mahboob. Complainant came and delivered letter to him, which he handed over to S.I. Mahboob who prepared Mashirnama of recovery. He identified Exh.13 to be that letter of ransom and Exh.45 (letter of P.W.15 Choudhry Mohammad Arif) and Exh.45-1 (received from office of S.P.) He marked that letter Exh.45 of P.I. Muhammad Khan (Deposition of this witness is Exh. 50 at p. 206). ' P.W.17 is Mohammad Ali; cycle repairer, who has supported story of P.W.15 Choudhry Mohammad Arif about the car with two persons already sitting in it and three persons going in it but stated that he could not identify those five persons. (Deposition of this witness is Exh.51 at p. 210). P.W. 18 is Anisul Wara Faish, teacher in Saifee Coaching Centre, Azizabad. Tauqir, Nayer Mirza and Zafar Mashkoor studied in his school. During investigation register containing their names was seized. He identified in the Court only two namely Nayar Mirza and Zafar Mashkoor. (Deposition of this witness is Exh.52 at page 213). ' P.W.19 is Mr. Bashir Ahmad Chisti, Magistrate P.S. Gulbahar, Karachi. On 27-2-1978 he recorded judicial confessions of Tauqir Exh.58, Nayer Exh.59, Ishtiaq Exh.60, Ayoob Exh.61 and Zafar Exh.62. (Deposition of this witness is Exh.56 at p.217). P.W.20 is Mohammad Amin Qureshi, who attested as Mashir inquest report Exh.66. (His deposition is Exh.65 at p.267). P.W.21 is Mohammad Aslam Mashir, in whose presence 23 specimen handwritings of Ayoob were taken at P.S. Vide recovery memo. Exh.
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68. (Deposition of this witness is Exh.67 it p.272). P.W.22 is Raja Rahmat Mashir, in whose presence, Tauqir while in custody pointed out shop "Delux Paint Place" from where gunny bag and rope were purchased. Mashirnama prepared in this context is Exh.71, which is attested by this witness. Tauqir then pointed out a .House, which was unflustered and locked from outside. Hawaldar brought key with which lock was opened. From inside almirah, Tauqir produced a note book containing rough draft of letter purported to have been written by "July Khan". This notebook was seized by memo. Exh. 72. Tauqir also produced handkerchief and pencil. At his potation mattress, blanket and pillow- cover were also seized. In the courtyard of the house under a mango tree from the dump a brown paper-bag was taken from which 13 sanitary cotton-pads were recovered which were found to be blood-stained. These recoveries were made vide Mashirnama Exh.74. (Deposition of this witness is Exh.70, at p.288). P.W.24 is Masroor Ahmad, owner of Pathological laboratory, where Nayar Mirza worked as employee. He deposed that on 5-2-1978 Nayer Mirza took leave at 12-30 noon and left the laboratory. Again on 11th Nayar Mirza came back to the laboratory. (Deposition of this witness is Exh.76 at p.298). ' P.W.25 is Khalid Ahmad Mashir,in whose presence car which was already parked in the premises of P.S. Joharabad was seized by police vide Mashirnama Exh. 89. On the back seat of the car there were small blood stains and a small pencil and Toffee wrappers were also recovered from the car. It was a Fiat car white in color with black roof bearing registration No, KAF-4093. (Deposition of this witness is Exh.88 at p.308). P.W.26 is Mashir Muhammad Younis (Exh. 90 at p. 311). In his presence S.I. Moinul Islam secured note-book containing handwriting of Zafar from his father Mashkoor Ahmad vide Mashirnama Exh.91. Secondly in presence of this Mashir same S.I. Secured six papers containing handwriting of Tauqir from his father Muhammad Ismail vide recovery memo.Exh.94. P.W.27 is Mashir Aqeel Ahmad (Exh. 95 at p. 319). In his presence Ishtiaq while in custody on 27-2-1978 pointed out place of kidnapping vide memo. Exh. 96, place where dead body was left vide memo. Exh. 97, place where offence was committed vide memo. Exh. 98. ' P.W. 28 is Muhammad Aslam A.S.I. (Exh.99 at p.325). On 5-2-1978 he was A.S.I. At P.S. Joharabad and investigated F.I.R. Of a theft case of a car. On 7-2-1978 he found the car abandoned in New Karachi Jungle near cinema house, there was no tape-recorder in it. He prepared recovery memo. Exh. 101. At the instance of Inspector Mohammad Khan, this witness reached Banney Khan, who produced tape-recorder. Theft case was challenged against Ishtiaq and Zafar Mashkoor, who were already in custody. P.W.29 is Sikandar who is owner of Fiat Car No,KAF-4072 (Exh.103 at p.332). He reported theft of his car on 4-2-1978. His Car was recovered on 7-2-1978 which he saw at P.S. But there was no tape-recorder in it. On 9-2-1978 he received his car under the orders of Additional City Magistrate. On 20-3-1978, he learnt that tape-recorder had been recovered. P.W.30 is Mashir Mohammad Farooq (Exh. 104 at p. 335). His evidence is same as that of P.W.26 Mashir Muhammad Younis with the exception that Mohammad Farooq has spoken about recovery of cycle from father of Zafar while Mohammad Younis has not said anything about cycle. P.W.31 is Banney Khan (Exh.105 at p.338). He deposed that Zafar sold him tape-recorder at Rs,250, and subsequently he handed over that tape-recorder to the Police. P.W. 32 is Mohammad Abbas owner of a hotel in Dastgir colony (Exh. 106 'at p. 341). He stated that Zafar and Tauqir used to come together to his hotel. P.W.33 is Ashfaq Hussain (Exh. 107 at p. 343) who is employee is Saifee Coaching center. Register was seized by police showing Zafar, Tauqir and Nayer studying there. He identified only two namely Zafar and Nayar. P.W.34 is Mashir Haji Rehmatullah (Exh. 109 at p.347). His evidence is same as that of P.W.27 Mashir Aqeel Ahmad. P.W. 35 is Mashir Javedul Hassan (Exh.110 at p.349) in whose
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presence Ishtiaq pointed out Suzuki van and Ford car in the house of Mukhtiar Ahmad, which were seized by police. P.W.36 is Abdul Hafeez, mechanic owner of motor Barrage, who knew Ishtiaq (Exh. 113 at p. 353). He was given up for the reason that his name did not appear in challan and his statement under section 161, Cr.P.C. Was not supplied to the defense. P.W.37 is Muhammad Mahboob S.I. (Exh. 114 at p. 354). ' He deposed about checking record of Government Degree College in respect of admission of Tauqir Alam. He checked record of Saifee Coaching Centre in respect of admission of Zafar, Nayar Mirza and Tauqir. He also checked record of Royal Pathological laboratory, where Nayar was an employee. It would be pertinent to mention here that this witness Mohammad Mahboob was examined in the trial Court twice. Once before he was examined as P.W. 14 (Exh. 39 at p. 180). It appears that certain things were left out in his first deposition, so he was examined for the second time but no such clarification is recorded by learned trial Judge. ' P.W. 38 is MRs, Shela Rahman (Exh. 115 at p.358). She stated that she knew accused Ayoob, who used to come to her house to work as Plumber. To that extent she supported P.W.15 Choudhry Mohammad Arif (Exh.44 at p.188). P.W.39 is Zaheer Ahmad, Principal Degree College, Nazimabad. (Exh. 116 at p. 359). He brought record and stated that Tauqir Alam after his admission on 2-2-1979 did not attend the college. P.W. 40 is Zahir son of Mushtaq (Exh. 119 at p.363). He is owner of Cafe Dilshad. In Dastgir Colony and deposed that Zafar, Tauqir and Nayar used to come together to his restaurant for tea. P.W.41 is Jaffer Khan Chowkidar (Exh. 121 at p.366). He stated that his brother Sikandar used to stay in Juggi No,564/2 and opposite that was a house, which remained vacant and Tauqir used to visit it. P.W.42 (wrongly typed in Paper book as P.W.40) is Moinul Islam S.I, who partly investigated the case (Exh.124 at p.370). He was A.S.I. At P.S. Joharabad. F.I.R. Of this case was registered at P.S. Gulberg. Dead body was discovered in the jurisdiction of his P.S. On the direction of Mohammad Khan Inspector he brought Ayoob at P.S. Specimen handwriting of Ayoob were taken by Inspector. Ransom letter Exh.13 and specimen handwritings of Ayoob were given to this witness by Inspector, which he took to handwriting expert, who gave his finding after about one hour. This witness came back to the P.S. And Ayoob led police party to the house of Mirza Aziz Ahmad Baig from where Nayar Mirza was arrested. Ayoob led to the house of Zafar, from where Zafar was arrested. Ayoob, led to the house of Tauqir, from where Tauqir was arrested. Lastly at the pointing out of Ayoob Police arrested Ishtiaq All from Gharibabad. This witness Moinul Islam S.I. On 27-2-1978 on the pointing out by Ishtiaq An prepared Mashirnamas Exh.96 (place of recovery of dead body), Exh. 98 (place of offence). On 27-2-1978 this witness took all accused in the case and had their judicial confessions recorded before Magistrate first class. On 5-3-1978 under the direction of S.H.O. This witness took specimen handwritings of Tauqir and Zafar and cycle from the house of Zafar. ' P.W. 43 (wrongly typed in Paper book as P.W.41) is Ghulam Abbas D.S.P. Forensic Branch, Karachi (Exh.127 at p.381). He deposed that on 6-2-1978 he received questioned document Exh. 13 from C.I.A.For examination of handwriting without specimen handwriting. On 23-2-1978 he received specimen writings of a suspected person and after examination gave finding in his report Exh. 126, which is positive.P.W. 44 (wrongly typed in Paper book as P.W. 42) is Ghulam Mustafa Tapedar (Exh. 139 at p. 404) who prepared sketch of the scene of offence on 6-3-1978. Lastly prosecution examined P.W.45, (wrongly typed in paper book as P.W. 43) Mohammad Khan Inspector who has investigated this case (His deposition is Exh. 143 at p. 410). ' Prosecution produced report of Chemical Examiner Exh. 146 (p. 425) which shows that semen was detected on Article No,12 only (printed Chadar). Prosecution had sent in all 13 article contained in 10 sealed parcels but no semen was detected in other articles. Another report of Chemical Examiner Exh. 147 shows that Articles 1 to 6 were found to be stained with human blood. Further, article 1 (blue shirt uniform), 2(white Shalwar) and 13 sanitary pads were found to be stained with blood of group 'B'. On articles 4 to 6 grouping could not be determined as material was insufficient. This report of
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Chemical Examiner is Exh. 148 (at page 430) which shows articles 1 and 2 from Fiat Car No,KAF-4093 were found to be stained with human blood. Article No,1 was scraping of red spot from the front right door and Article No, 2 was scraping of human tissue from front right door of the car. Grouping could not be made because material was insufficient. Exh. 149 in the record (page 432 of Paper book) is application of Miss Anwar Fatima addressed to the S.H.O., P.S. Joharabad for return of key of her house No,564 Block No,2 Azizabad and allegation is made therein of Police…
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