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Petitioner: Sajid S/o Noor Ahmed VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Sajid S/o Noor Ahmed vs The State Case No.:Special Criminal Anti-Terrorism Appeal No.02 of 2021 Special Criminal Anti-
JUDGMENT
Reported As: 2022 SHC 370 Result: Appeal Disposed of Judgment JUDGMENT ZULFIQAR ALI SANGI, J. The appellants named above were tried by Anti-Terrorism Court No.II, Karachi in (1) Special Case No.B-448/2015 under FIR No.150/2015 U/s 365-A/34/512 PPC R/w Section 7 ATA, 1997, (2) Special Case No.B-449/2015 under FIR No.34/2015 U/s 353/324 PPC R/W Section 7 ATA, 1997, (3) Special Case No.B-450/2015 under FIR No.35/2015 U/s 23(i)A SAA, (4) Special Case No.B-451/2015 under FIR No.36/2015 U/s 23(i)(A) SAA, (5) Special Case No.B-448-A/2015 under FIR No.150/2015 U/s 365-A/34/512 PPC R/w Section 7 ATA, 1997 and (6) Special Case No.B-449-A/2015 under FIR No.34/2015 U/s 353/324 PPC R/w Section 7 ATA, 1997; all FIRs were registered at PS AVCC/CIA, Karachi and vide judgment dated 24.12.2020 they were convicted and sentenced as follows: a) "Life imprisonment" under section 365-A PPC r/w Section 7(e) of ATA, 1997 for kidnapping the abductee. b) In the case of encounter u/s 353/34 PPC r/w Section 7(m) ATA, 1997 accused Danish son of Abdul Majeed, Asghar Ali Mugheri son of Mohammad Achar and Mukhtiar Ali Brohi son of Mian Bux are also convicted and sentenced to suffer "R.I. for 03 years". c) Accused Mukhtiar Ali and Asghar are also convicted and sentenced to suffer R.I. for 7 years U/s 23(i)A SAA keeping the unlicensed weapons. All the sentences were ordered to run concurrently. The benefit of Section 382-B was extended to all the accused persons by the trial court.
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2. The brief facts of FIR No.150/2015 are that complainant Naimat Gul has lodged FIR on 29.03.2015 at about 2100 hours stating therein that he lives in House No.318, Block-F, Gali No.15 near National Chowk, Iftikhar Town, Karachi and has a shop in the name of Saad Computer on Plot No.69 Sector 9-A, Saeedabad. He stated that his real brother Raheem Gul who has shop in the name of NS Computer on Plot No.70, Sector 9-B, Saeedabad. He (brother Raheem Gul) on 27.03.2015 at about 2255 hours closed his shop and came to him and told him that he is going home. He (complainant) at about 0300 hour closed his shop and went home. At home he did not see car of his brother and from the house inmates, he came to know that his brother has not reached home. He was worried, he called his brother on his mobile number but the mobile of his brother was powered off. He along with his friends and relatives kept searching his brother when at about 0600 hours at Sector 14-B in the third lane near Nala he found the car Chevrolet No.AGS-737 of his brother but there was no clue where his brother was. In the car he found one laptop, one mobile phone whereas one mobile Samsung Galaxy Core IMEI No.352112/06/124095/5 with two SIMs No.0300-2500962 and 0333-2899189 was missing. He kept searching for his brother and now he was sure that some unknown accused persons have kidnapped his brother and thus lodged the FIR. 3. After the main FIR, FIR No.34/2015 was also registered which states that SI Niaz Muhammad posted at AVCC/CIA Karachi accompanied with other police officials and accused Saddar was conducting search for abductee and accused persons involved in the main FIR. When they reached at Northern By-Pass near Raheem Goth within the limit of PS Manghopir, at about 2030 hours as per pointation of arrested accused they tried to catch the accused persons present there for the recovery of abductee; however, the accused persons started firing upon the police party with intention to kill them and in retaliation, police party also returned fire for their defence. As a result, accused Asghar Ali and Mukhtiar Ali Brohi sustained injuries and were arrested. Thereafter, from personal search of Asghar Ali 32 bore revolver without numbered loaded with three bullets and cash Rs.400/- was recovered and from Mukhtiar Ali one 32 bore revolver loaded with two bullets and cash Rs.520/- was recovered. On enquiry, they could not produce any license of the recovered weapons, as such; two separate FIRs under the Sindh Arms Act, 2013 were also registered against them for holding an unlicensed weapon. 4. After completing the usual investigation, all the cases were challaned before the court having jurisdiction. After completing the legal formalities the charge against the appellants was framed, to which they pleaded not guilty and claimed to be tried. 5. The prosecution in order to prove its case examined 11 Prosecution Witnesses and exhibited various documents and other items. The statement of accused persons was recorded under Section 342 Cr.P.C in which they denied all allegations leveled against them. After appreciating the evidence on record, the learned trial Court convicted the appellants as mentioned above; hence, the appellants have filed these appeals against their convictions. 6. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 24.12.2020 passed by the learned trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 7. Learned counsel for the appellants have contended that the appellants are innocent and have falsely been implicated in these cases; that the prosecution has miserably failed to prove the charges against the appellants; that the conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused; that the identification parade has no value as 03 accused Asghar Ali, Mukhtiar Ali and Khawar had stated to the Magistrate that their pictures were taken and shown to the abductee, who was already known to them; that the alleged abductee had claimed to have been released at
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Fajar (Morning) time but he did not inform the police promptly neither did the complainant, which also creates doubt that the story is managed; that car of the abductee was not made case property nor its seizure memo was prepared; that the arrest of accused persons was shown as a result of encounter, however, no police official was injured or even escaped unhurt, which also creates doubt; that the learned trial Court while pronouncing the judgment did not assess the evidence properly; that this is an un witnessed crime in which direct evidence like CCTV footage, CDR, fingerprints, DNA testing etc. becomes essential and the chain point of CDR has to prove the crime and prosecution story which has not been done properly in this case; They lastly pray for the acquittal of the appellants. They have placed reliance on the cases of Muhammad Aamir and another vs. The State (2022 YLR 484), Master Juman Buriro vs. The State (2022 YLR 299), Muhammad Sohail and others vs. The State and others (2021 P.Cr.L.J 1502), Muhammad Kamran vs. The State (2021 SCMR 479), Mian Khalid Perviz vs. The State through Special Prosecutor ANF (2021 SCMR 522), Shaban Akhtar and another vs. The State through Prosecutor General Punjab (2021 SCMR 395), Sarfraz alias Bhoora vs. The State (2021 YLR 836), Abdul Haq and others vs. The State (2020 SCMR 116), Ghulam Hussain and others vs. The State and others (PLD 2020 Supreme Court 61), Amjad Ali Khan vs. The State and others (PLD 2020 Supreme Court 299), Naqeebullah and others vs. The State and others (2020 MLD 1492), Waqar A. Shamsi and another vs. The State (2019 SCMR 2039), Waris Ali and 5 others vs. The State (2017 SCMR 1572), Mst. Mehboob Bibi and others vs. The State (2017 SCMR 1835), Azeem Khan and another vs. Mujahid Khan and others (2016 SCMR 274), Muhammad Fayya z vs. The State (2012 SCMR 522), Sabir Ali alias Fauji vs. The State (2011 SCMR 563), Muhammad Ayaz and others vs. The State (2011 SCMR 769), Muhammad Akram vs. The State (2009 SCMR 230), Bashir Ahmed vs. Muhammad Siddique and others (PLD 2009 Supreme Court 11), Ghulam Qadir and 2 others vs. The State (2008 SCMR 1221), Tariq Mahmood vs. The State and others (2008 SCMR 1631) and Mohabbat Ali and another vs. The State (2007 SCMR 142). 8. On the other hand, learned Addl. P.G. Sindh has fully supported the impugned judgment on the basis of evidence produced by the trial Court. He has relied upon the cases of Sh. Muhammad Amjad vs. The State (2004 SCJ 33), The State vs. Haider Zaidi and others (2002 SCJ 310) and Muhammad Siddique and others vs. The State (2020 SCMR 342). 9. We have heard the arguments of the learned counsel for the appellants, Learned Add. PG for the State and gone through the entire evidence which has been read out by the appellants and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar. 10. On our reassessm ent of evidence, we have found that the prosecution has proved its case beyond a reasonable doubt against all the appellants by producing reliable, trustworthy, and confidence inspire evidence. 11. The case of prosecution is that the brother of Complainant Raheem Gul was kidnaped by the accused persons on 27-03-2015; such FIR was lodged on 29-03-2015 by his brother Naimat Gul (PW-1) against unknown persons who on his examination before the trial court had fully supported the case and also explained the delay in registration of FIR. As per his evidence during search they found the car of abductee in the middle of Sector 14-B and Sector 17-A. They called the police and car was searched wherefrom mobile phone of abductee and one laptop was recovered. He further deposed that on 01-04-2015 he received call from his brother's number 0333-2899189 on his mobile number 0345-2580489 and caller demanded an amount of Rs. One crore as ransom for the release of his brother. He received call repeatedly and calls were also received on the mobile number of his another brother Rahat Gul for ransom to which he informed the investigation officer S.I Muhammad Amir Bhatti who also informed him about the transfer of investigation to AVCC. He further deposed that his brother Raheem Gul returned to home in the morning of 19-04-2015 and
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was in weak condition. Cross-examination was conducted at some length but we do not find any substance favourable to accused person. During cross-examination counsel for the accused had made some focus on the delay in registration of FIR. His evidence is further supported by PW-2 Rahat Gul in respect of kidnaping of their brother, receiving the calls for ransom and returning of the abductee at home. The PW-9 Inspector Muhammad Amir has supported the version of complainant while deposing that the complainant approached him and informed him about receiving of the phone calls for ransom and he recorded such statement of the complainant, thereafter, he handed over the investigation of the case to AVCC for further investigation. 12. Normally the delay in registration of FIR in the cases of abduction for ransom occurs as the relatives of abductees at the first instance remain busy in searching for them or in some cases they wait for the contact to be established by abductors and always feel apprehensive of lives of their beloved ones. Therefore, delay in cases of such like nature is not fatal to the prosecution. But such delay has to be explained and is required to be considered with other evidence produced by the prosecution for safe administration of justice. If the evidence is free from all doubts, then delay alone would not be sufficient to disbelieve the case of prosecution. But if there is sufficient material available in the evidence that shows that accused has not committed offence with which he is charged, and then the delay too might be fatal to the prosecution case. In the present case incident took place on 27.03.2015 and complainant party was busy in searching and on recovery of the car belonging to abductee they informed the police and later on the FIR was registered on 29- 03-2015 against the unknown persons. On receipt of calls for ransom again police was approached and statement of complainant was recorded. If the complainant party wanted to book someone in the case they must nominate him/them but they did not do so as they wanted to prosecute the real culprits not the innocent. Reliance is place on the case of Ashfaque Ahmed and 4 others v. The State (2022 Pak. Cr.L.J (Note) 38). 13. It is also noted that in cases of abduction for ransom, it is not necessary that all the culprits must have collectively done all the criminal acts together from the stage of abduction till extortion of money. In such cases mostly, the work is divided. Abduction is done by a few of them, place of confinement is guarded by others and ransom is extorted by one or two of them. This is done through planning. The object of all is to extort money. Therefore, the punishment would be the same irrespective of the role played by each of them. For example, in a case where accused only told the main abductors on the way that the passage is clear and did not play any other role in the abduction he was tried and the death sentence was awarded to him by the trial court and was confirmed by the High Court and Honourable Supreme Court commuted the sentence of death to imprisonment for life in case of Said Muhammad v. The State (1999 SCMR 2758). Reliance is also placed on the case of Khawaja Hasanullah v. The State (1999 MLD 514) where it was held as under:- "In cases of abduction for ransom, it is not necessary that all the culprits must have collectively done all the criminal acts together from the stage of abduction till extortion of money. In such cases mostly, the work is divided. Abduction is done by a few of them, place of confinement is guarded by others and ransom is extorted by one or two of them. This is done under a planning. The object of all is to extort money. Therefore, the punishment could be the same irrespective of the role played by each of them". 14. We would add here that in the cases of abduction/kidnapping normally the case would depend upon the evidence of the abductee. In such cases, the abductee shall always be regarded as the star witness while the other evidence would be that of a corroborative piece of evidence. In the instant case, the star witness of the case is PW-6 Raheem Gul the brother of the complainant as per his evidence on 27-03-2015 after closing his shop he aimed to go to his house in his vehicle No. AGS-737 and when he reached at Mour (curve) of Itehad Town Mour then his car was stopped by
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three persons coming from a street on motorcycles and other persons were already available there. The motorcycle was stopped in front of the car and the persons available there came towards his car, two had also come down from the bike and one person kept the pistol at his temple whereas rest of them had surrounded his car. One of them told him that police is behind them and that they want his car to escape, he opened the door of his car to get down and the accused pushed him inside towards the seat next to the driver's seat. One accused started driving the car, two sat at the rear seat and three on the motorbike. They drove the car and the motorbike was piloting, the car was following. As per his evidence during such drive they had tied his hands from behind; after crossing the Itehad Town Nala they turned in the gali (street) on left and then comes Sector-14 and then Dawood Goth to Saeedullah Goth where jungle starts. They had stopped the car put off the lights. All these persons were talking among themselves in Urdu. They were asking him in whose name the car was. The persons who were sitting at the rear seat of the car had taken his mobile Samsung from front pocket of Qameez, original CNIC, wallet, keys; he had Rs.16,000/- in the pocket, Rs.1 lac in an envelope was available in the car, and at the rear seat of his car there were two laptops; one was of HP and one of was Dell. They had taken Dell Laptop and HP Laptop was still lying there underneath top cover of car. The cover of the car he had kept in the car and underneath he had kept the HP Laptop. His mobile Samsung Galaxy had two sims one was of Jazz No.0300-2500962 and other was Ufone-0333-2899189. The car was stopped but ignition was on and he saw six more persons coming out from the bushes. The persons who were in the car handed him over to those six persons. He was taken to a side and they all were talking to each other. Those six persons had taken him on foot towards Hub, Balochistan. The whole night they made him walk on foot in the bushes. They kept him for three days in the jungle. In one hand and in one leg sometimes in both the legs they used to tie him up with handcuffs and fillers. They used to give him one glass of water in the morning and one glass of water in the evening. After three days they had blind folded him and had taken him on motorbike; the motorbike had driven for 25 minutes and thereafter he was made to walk on foot. For 16 days he was kept in a hut made by left over straw of wheat. From the outside one could only see that it was a chuff of remains of the wheat whereas one could stay inside that Chuff of wheat. There was always one person armed with weapon guarding on him. He was given one cup of tea in the morning and one cup of tea in the evening. Those persons who kept him for 16 days could not speak Urdu properly and they all the time used to talk in Sindhi. They used to torture him. Those persons who had kept him for 20 days made him talk to his family members three times to demand ransom. They used to make call from his both sims 0300-2500962 and 0333-2899189 to the number of his brother 0345-2580489 namely Naimat Gul. The number of his brother was in the sim and whenever he was made to talk with his brother they used his sim and he could see the number of his brother from the sim and used to call on that number. They used to tell him to demand Rs.1 crore and he requested his brother to fulfill the demand. He had told those people that they cannot arrange Rs.1 crore. When those people felt that there is no hope they used to beat him with butt even when they used to talk with his family they beat him too so that his family knows that he is beaten by them. He was only made to talk twice and the third time they taken him to jungle to kill him. He then requested them let him talk with his family for a third time which was allowed. On the last four days he was shifted in a house where there was population as he could hear Azan. He could also hear the voice of family i.e. women and children. After those four days they told him that their people had been picked up by the police and that they are releasing him on the assurance that when he goes back he should get their men released. In the night they blind folded him and at 3:00 or 4:00 am they had taken him by foot; when it was about fajar (morning) time they had taken him in populated area where they left him and they went away. When he was released his blind fold was removed. He had found out where he was left was Sakran Murree Chowk which he found out from the people
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of the locality. He took a lift from various people till he reached home at 8:00 am. On the same day when he had reached home AVCC had contacted him but he was not in a position to talk to anybody. On 19.04.2015 he was released and on 21.04.2015 IO Rana Ishrat had come to his house and he took him to where he was released. 15. It is established from the evidence of the abductee that the abductee narrated the manner of his abduction, each and every movement during his captivity for about one month; demand of ransom and after the arrest of some of the accused persons his release by them which evidence we find to be natural and confidence inspiring. The abductee also disclosed that in his presence, the ransom was demanded while using his mobile number and he identified all the accused persons during the identification parade conducted by the Magistrate with role assigned against each accused so also identified them in the Courtroom that they all are the same who abducted him and demanded ransom amount. During cross-examination no enmity or ill will is suggested to falsely implicate the accused persons in the case of capital punishment. In absence of enmity, the evidence of abductee who's evidence otherwise based on truth, reliable and confident inspiring cannot be discarded. Reliance can be placed on the case of Muhammad Riaz and Others v. Bilqiaz Khan and Others (2012 SCMR 721) wherein it is held as:- "9. ...These prosecution witnesses particularly the abductees had neither any enmity with the appellants-convicts nor was so alleged with specific proof to warrant as inference that they had falsely implicated them...." 16. It is settled law that accused can be convicted if the court find the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence inspiring. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). The Supreme Court in the case of Niaz-Ud-Din v. The State (2011 SCMR 725) has also observed in respect of the ability of the court to uphold a conviction for murder even based on the evidence of one eye-witness provided that it was reliable and confidence inspiring and was substantiated from the circumstances and other evidence since it is the quality and not the quantity of evidence which is of importance. Further the Supreme Court in the case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." the reason being that it is the quality of evidence and not the quantity. Although we believe the evidence of a star witness Raheem Gul the abductee being reliable, trustworthy and confidence inspiring even then to satisfy our self for the sake of safe administration of criminal justice we reassess the other evidence which is of a corroborative nature to the evidence of the abductee. 17. The accused persons were identified by the star witness Raheem Gul the abductee before the PW-5 Magistrate Aijaz Ali Abro who was examined by the prosecution and while recording his evidence he stated that on 27-04-2015 on the application of investigation officer he conducted the identification parade of accused persons namely Sardar Ali alias Nizam s/o Mir Hassan, Sajid s/o Noor Muhammad, Khawar s/o Dildar, Asghar Ali s/o Muhammad Aachar and Mukhtiar Ali s/o Mian Bux separately after completing the legal formalities and the abductee rightly identified them by pointing out his finger that they were the accused persons who kidnaped him. He further deposed that on 16-06-2015 again investigation officer approached him with application in respect of the identification parade of accused Danish s/o Abdul Majeed which he also conducted by following the law and the accused was rightly identified by PW Raheem Gul the abductee with his role. It is observed that the abductee remained about one month in the captivity of accused persons and his eyes were also not tied, he was shifted at several places even by foot, therefore, he had good look on the accused persons. We have carefully examined the identification parade memo and have found the same is in accordance with the guidelines of the Honourable Supreme Court of Pakistan in the case of Kanwar Anwaar Ali (PLD 2019 SC 488). Although some irregularities in the
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identification parade are available these in our view are not sufficient to discard other evidence which otherwise is more than sufficient to convict the appellants. In the present case, the appellants were correctly identified by the witness during a test of identification and during the trial the witnesses also identified the appellants. The evidence of the Magistrate, who conducted the identification parade, was not shattered by the defence counsel which suggests that his evidence is reliable. It is now settled that even non-holding of identification test is no ground to discard the testimony of eyewitnesses and abductee, who remained in the custody of accused for a considerable period (which in this case was about one month) and in such circumstances identification of accused in court at the time of evidence is sufficient. Further, identification parade is not a requirement of law but one of the methods to test the veracity of the evidence of an eyewitness who has had an opportunity to see the accused and claimed to identify him and is of a corroboratory nature. When the witness has spent considerable time with the accused and had an opportunity to take a good look at him holding of identification test would not be necessary. Reliance is placed on the cases of Dr. Javed Akhtar V. The State (PLD 2017 SC 249), Muhammad Akbar V. The…
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