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Petitioner: Imran Ahsan alias Sunny and others VS Respondent: The State and others
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Imran Ahsan alias Sunny and others vs The State and others Case No.:Special Criminal Anti-Terrorism Jail Appeals Nos. 148 of 2015, 341 of 2018
JUDGMENT
Reported As: 2023 YLR 1796 Result: Appeals dismissed Judgment JUDGMENT MOHAMMAD KARIM KHAN AGHA, J.---Accused Salman Qureshi and Imran Ahasan alias Sunny were tried by learned Judge, Anti-Terrorism Court No.IV, Karachi in Special Case No.133 of 2008 arising out of Crime No.851/2008 under section 365-A/34, P.P.C. read with Section .7 of Anti- Terrorism Act, 1997 registered at P.S. Shahrah-e-Faisal, Karachi. After trial vide judgment dated 15.06.2015 the appellant/accused Imran Ahsan alias Sunny son of Ahsan Irfan was convicted and sentenced under section 265-H(ii), Cr.P.C. for the charged offence punishable under section 7(e) of Anti-Terrorism Act, 1997 read with Section 365-A, P.P.C. for Life Imprisonment. However, accused Salman Qureshi was acquitted tinder section 265-H(i), Cr.P.C. The appellant/ accused Imran Ahsan was extended the benefit of Section 382-B, Cr.P.C. 2. Being aggrieved and dissatisfied by, the judgment passed by learned Judge, Anti-Terrorism Court No.IV Karachi, an appeal has been preferred by the appellant Imran Ahsan against his conviction. 3. The complainant (Noor Ahmed Javed) being dissatisfied with the aforesaid judgment dated 15.06.2015 as it acquitted accused Salman Quershi has also filed an appeal against the acquittal of Salman Quershi. 4. It may be mentioned at this stage that initially the above two accused (Imran Ahsan and Salman Quershi) were being tried along with Muhammed Zubair alias Mama son of Abdul Ghaffar. After the evidence of 7 PW 's was recorded however Muhammed Zubair alias Mama absconded which lead to his trial being separated from that of Imran Ahsan and Salman Quereshi and on his re arrest the final PW in this case PW 8 Mehmood Khan who was the I.O. was recorded and cross-
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examined by him and thereafter his section 342, Cr.P.C. statement was recorded and his defense case heard and after assessm ent of the evidence on record he was convicted by learned Anti Terrorism Court No.XVIII at Karachi vide judgment dated 12-10-2018 under section 365A, P.P.C. and sentenced to life imprisonment and forfeiture of his property and under section 7(e) ATA, 1997 and sentenced to RI for life. Being dissatisfied by the impugned judgment Muhammed Zubair has also filed an appeal against his conviction. 5. Since all three appeals arise out of the same facts and have common witnesses we have decided to dispose of all three' appeals by this common judgment. 6. At this stage it is also worth mentioning that initially in this case accused Imran Ahsan, Muhammed Zubair, Salman Quershi and Mst. Laiba Anthony were all charged with the offense of kidnapping for ransom. Mst. Laiba however before any witness gave evidence made an application to become an approver in return for a pardon under section 338, Cr.P.C. which was allowed by the trial court and as such she gave evidence as PW 1 against the remaining accused at their trial. The complainant/ appellant Noor Ahmed Javed along with the State after Mst. Laiba had given evidence as PW 1 at trial made an application that Mst.Laiba had not told the complete truth at trial and since this was a condition of her pardon which she had violated her pardon should be withdrawn and she should once again be arrayed as an accused in this case and face trial. Following such application and with the SPP's approval a separate trial as envisaged under sections 339 and 339A, Cr.P.C. was conduced against Mst. Laiba as to whether she had told the complete truth at trial or not and whether her pardon could be made final or she should once again be arrayed as an accused. That vide judgment dated 15.06.2015 Anti-Terrorism Court No. IV found that Mst. Laiba had told the complete truth at trial and as such acquitted her of the charge and upheld her grant of pardon. Being dissatisfied with the aforesaid judgment of acquittal the complainant/ appellant Noor Ahmed Javed filed an appeal against her acquittal before this court which this court dismissed vide judgment dated 29.04.2020 and as such we have considered the evidence of Ms. Laiba whilst deciding these appeals. 7. The brief facts of the prosecution case are that on 06.11.2008 at about 2230 hours the complainant stated that he is doing construction work and his son runs an Estate Agency called Noor Estate Agency and on 19.10.2008 at 6.00 pm a party consisting of a boy and girl went to see a house along with his son Khurram Javed in an Alto Car. His son Khurram Javed did not return back home and he therefore tried to contact him on his mobile phone which was switched off and thus he lodged a report about missing of his son on 20.10.2008 at PS Shahrah-e-Faisal. Thereafter, he started getting phone calls for ransom which he informed the CPLC about. On 28th October, 2008, Muhammad Irshad father-in-law of his son Khurram Javed paid Rs.10 Lacs to the kidnappers at 0300 hour (night time) at Pizza hut, Gulshan-e-Iqbal, Block-7. The kidnappers released his son after half an hour and they threatened him not to lodge an FIR. Initially he was fearful and as such did not immediately register an FIR but did so later on. The accused were all later arrested in another case and were then are arrested in this case. 8. After usual investigation a formal charge was framed before the competent court of law against the accused persons to which they pleaded not guilty and claimed to be tried. 9. To prove its case the prosecution examined 08 prosecution witnesses and exhibited numerous documents and other items and thereafter the side of the prosecution was closed. The statements of the accused Imran Ahsan and Salman Quershi were recorded under section 342, Cr.P.C. wherein they denied all the allegations and claimed to be innocent. Imran Ahsan did not give evidence on oath and called 2 witnesses in support of his defense case. Salman Quershi did not give evidence on oath but called 5 witnesses in support of his defense case to prove that he had been falsely implicated in the case.
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10. In the separate and later trial (after Imran Ahsan had already been convicted and Salman Quershi already acquitted) of Muhammed Zubair the evidence of PW 8 was recorded in his presence and he thereafter was given the opportunity to cross-examine this PW and then recorded his statement under section 342, Cr.P.C. where he also denied the allegations against him and also gave evidence under oath. He also produced two affidavits in evidence in support of his defense case of false implication. 11 The facts of the case as well as evidence produced before the trial courts find an elaborate mention in the judgments referred to above passed by the learned trial courts whereby the two appellants were convicted of the charges against them and the respondent was acquitted and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 12. Learned counsel for appellant Imran Ahsan has contended that PW Laiba should be disbelieved as she has not told the truth and as such her evidence should be discarded, that there is no other evidence against the appellant, that no PW has identified him, that his case is better than that of Salman Quershi who was acquitted in the same case and as such based on the rule of consistency the appellant should also be acquitted, that the PW's all improved their statements in court and as such they cannot be safely relied upon, that the abductees statement has been recorded after 11 days and cannot be safely relied upon, that no CDR data has been collected or other evidence to prove the ransom demand and for any of the above reasons the, appellant should be acquitted of the charge by extending him the benefit of the. doubt or at a minimum should only be convicted and sentenced for the offense of abduction under section 365, P.P.C. and not for kidnapping for ransom under section 365A, P.P.C. In support of his contentions he has placed reliance on Muhammad Yasin v. The State (1996 SCMR 1588), Abdul Ghafoor v. The State (PLD 1984 Lahore 441), Ghulam Rasool alias Gudda v. The State (2020 YLR 212), Jived and 2 others v. The State and another (2009 MLD 1049), Muhammad Afzal alias Abdullah and others v. The State and others (2009 SCMR 436), Sabir Ali alias Fauji v. The State (2011 SCMR 563) and Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550). 13. Learned counsel for the appellant Muhammed Zubair has contended that the appellant has already spent 12 years in jail and that based on Islamic law he should be shown mercy and released from jail on account of the long period which he has already spent in jail. 14. On the other hand learned Deputy Prosecutor General has fully supported the impugned judgments and contended that Mst. Laiba fully implicates both the appellants in the kidnapping for ransom in her evidence, that PW 2 Noor Javaid who was the complainant identified appellant Imran Ahsan as one of the kidnappers, that PW 5 Khurram Javed who was the abductee identified both appellants as being his kidnappers at trial and during the recording of his section 164, Cr.P.C. statement, that the ransom demand and its payment has been proven by PW 2 Noor Javaid and PW 7 Muhammed Irshad and as such the prosecution had proved its case beyond a reasonable doubt against the appellants Imran Ahsan and Muhammed Zubair and both of their appeals should he dismissed. In support of his contentions he has placed reliance on Muhammad Siddique and others v. The State (2020 SCMR 342), Zakir Khan and others v. The State (1995 SCMR 1793), Junaid Rehman and others v. The State and others (PLD 2011 Supreme Court 1135), Aurangzeb v. The State (2010 PCr.LJ 1281) and Khawaja Hasanullah v. The State (1999 MLD 514). 15. Learned counsel for the appellant/ complainant has submitted that the respondent Salman Quershi should not have been acquitted vide judgment dated 15.06.2015 and has contended that he should have been convicted as the prosecution had proved its case against him beyond a reasonable doubt in that the respondent had rented the house where the appellant had been held captive, that his car was used in the kidnapping , that a ransom amount was recovered from his house on his pointation, that PW 7 Muhammed Irshad who delivered the ransom amount identified
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him as the person who collected the ransom amount and when all the above factors were taken into consideration it had been proved by the prosecution beyond a reasonable doubt that Salman Quershi was guilty of the charge of kidnapping for ransom and as such he should stand convicted of such offense and his acquittal should be set aside. In support of his contentions he has placed reliance on Rafaqat Ali and others v. The State (2016 SCMR 1766), Muhammad Akram Rahi and others v. The State and others (2011 SCMR 877), Muhammad Riaz and others v. Bilqaiz Khan and others (2012 SCMR 721), Sh. Muhammad Amjad v. The State (PLD 2003 Supreme Court 704), Niaz Ali Rajper v. The State (2020 PCr.LJ 96), Sajan and another v. The State (2015 PCr.LJ 953), Muhammad Rasool v. The State (2015 PCr.LJ 391), Ghulam Hussain Soomro v. The State (PLD 2007 Supreme Court 71), Ansar Mehmood v. Abdul Khaliq and another (2011 SCMR 713), Muhammad Siddique and others v. The State (2020 SCMR 342) and Ahmed Hussain alias Ami and others v. The State (PLD 2008 Supreme Court 110). 16. The State had not filed any appeal against the acquittal of respondent Salman Quershi. 17. Learned counsel for respondent Salman Quershi has contended that there is no direct evidence against the respondent, that as per the evidence on record the house was rented by the respondent in the name of Mst. Laiba as he was an estate agent by profession and the landlord would not let it to a Christian women so he stepped in as estate agency was part of his business and in any event the rent was paid by her, that he had given Mst. Laiba permission to drive his car but not for committing crimes and that the money recovered from his house belonged to him as part of his business expenses and thus he had rightly been acquitted by the trial court as there was absolutely no incriminating evidence against him and even now he stressed that under the law having been acquitted by the trial court he had a double presumption of innocence and as such the appeal against his acquittal should be dismissed. In support of his contentions he has placed reliance on Muhammad Banaras and another v. The State (1968 PCr.LJ 906), Abdul Ghafoor and others v. The State (PLD 1984 Lahore 441), Muhammad Arif v. The State (1995 MLD 1680) and Abdul Adeel and others v. The State (2009 SCMR 511). 18. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellants, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar. 19. After our reassessm ent of the evidence we find that the prosecution has proved beyond a reasonable doubt the charges against each of the appellants (Imran Ahsan and Muhammed Zubair) for the following reasons; (a) Although the FIR was lodged after a considerable delay we do not consider that this is fatal to the prosecution case based on the particular facts and circumstances of this case. This is because a day after his son went missing the complainant reported the matter to the police which entry was exhibited at trial. A day later he also reported the matter to the CPLC. It is also not unusual in kidnap for ransom cases for there to be a delay in filing an FIR as the parents are often frantically searching for the abducted child and as such lodging of the formal FIR is of lesser importance to them. Even other wise the delay in the FIR has been explained by the complainant as he was threatened by the kidnappers not to lodge the FIR which by his own admission made him scared and delayed him from so doing. The primary reason why there should be no unexplained delay in lodging an FIR is to avoid the possibility of the complainant cooking up a false case against the accused with the police or any third party. In this case no enmity has been suggested against the police or the other PW's including the complainant, abductee and person who paid the ransom and as such none of them had any reason to implicate the accused in a false case. If they wanted to falsely implicate the accused they could have easily nominated them as accused in the FIR but the complainant did not do so. In fact had it not been for the evidence of PW 1 Laiba who gave
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evidence as an approver at the trial it is unlikely that there would have been sufficient evidence to convict the accused at trial as no one even knew their names. (b) The star prosecution witness is PW 1 Mst. Laiba who as mentioned earlier turned approver in this case against her co-accused and who was granted a conditional pardon by the trial court and' despite her pardon being challenged by the State on account of her not giving completely truthful evidence at trial after a full dressed trial vide order dated 15.06.2015 Anti-Terrorism Court No. IV found that Mst. Laiba had told the complete truth at trial and as such acquitted her of the charge and upheld her grant of pardon. Being dissatisfied with the aforesaid judgment of acquittal the complainant / appellant Noor Ahmed Javed filed an appeal against her acquittal before this court which this court dismissed vide judgment dated 29.04.2020 and as such we have considered the evidence of Ms. Laiba whilst deciding these appeals. (c) Having dismissed the complainants appeal against acquittal of Ms Laiba for not giving truthful evidence after carefully considering the evidence on record including her evidence given at this, trial and her section 164, Cr.P.C. statement vide our judgment dated 29.04.2020 it follows that this court has already believed that she has given truthful evidence at trial which in our view was not dented during cross-examination. Once again we have considered her evidence and note that despite lengthy cross-examination her evidence was not dented and thus we believe the evidence of PW 1 Mst. Laiba which withstood the test of cross-examination. Since her evidence fully implicates appellants Imran Ahsan and Muhammed Zubair in the offenses for which they have been charged we set out in material part in so far as it relates to this case of kidnapping for ransom Khurram Javed her evidence in chief below for ease of reference since we are relying on it against appellants Imran Ahsan and Muhammed Zubair. "I converted as Muslim from Christianity on 08th June, 2000. On 8th June 2000 1 got married with Salman Ahsan. Out of the wedlock 1 was born one son namely Saad, who is 7 years old. The boy stayed with me. My marriage ended in divorce. I also know Imran Ahsan and Ilyas Sunni who is real brother of my Ex-husband Salman Ahsan and was residing on the upper floor of the house in which I was residing as a tenant and he too was residing as tenant. Mr. Zubair alias Mamoo was a friend of Sunni and he used to visit him quite often. I also know Salman Qureshi since 3 years. He is a very good family friend of ours. The house in which I was residing was obtained by Salman Qureshi on rent. I was working as a Stock Agent in the stock exchange. Since the market was dropping since 6 to 7 months therefore, eventually has ceased. I had requested Sunni to pay half of the house of rent money out of full. He agreed to pay the full rent money as I was in paucity and he told me that he needed to talk to me about something he had in his mind. I asked him what it was he was needed to talk with me about, on which he told me that he had a very lucrative business planned and on easy way to earn money, upon which I asked him what was that plan. He told me that I should call Salman Qureshi and to contact a rich parties contact number from which he would demand ransom after kidnap. Upon hearing this I got scared and I refused to do so and I told him that this is a crime and 1 would not agree. Upon my not agreeing Sunni got angry and furious and threatened to take away my son Saad and I would never see him again. I pleaded him not to do so, so he told me to agree to my plan and call Salman Qureshi for the contact number. I then called Salman Qureshi and asked him to come over to the house. I wanted to discuss something with him. Salman appeared and I narrated the whole story of Sunni as it was to Salman. After a few seconds Salman got up and walked out without saying a word. After 2 to 3 days passed Sunni told me that he had arranged for the contact numbers and that to call Salman Qureshi and ask him to lend his Car. As directed by Sunni I called Salman and asked him for his Car and Salman gave me his Car without saying any word. I told Sunni that Salman Qureshi has given the Car so Sunni said that you had to accompany us and driving the Car so that no one to doubt us and has suspicious for us. Thereafter on 16.10.2008 I called Khurram Javed owner of Noor
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Estate Agency and asked him to show me some house as I need to purchase a house. I introduced myself as Asma and Khurram told me that I should call and visit him on 19.10.2008 at 5:30 p.m. which was Sunday. On 19.10.2008 1 called Khurram Javed and Sunni and I visited Khurram at Noor Estate Agency and introduced themselves as brother and sister. After that Khurram was in his Car and Sunni and I were in one Car, went along Khurram showed us 2 to 3 hours. When Khurram told us to pay houses, Sunni told me that I should ask Khurram to accompany to one Car. As Khurram accompanied us in one Car, Sunni told him to show us the last house. It was in block- 13 Gulistan-e-Jauhar and Sunni confirmed it. After that Sunni told me to drive and to stop the Car on a particular point on the road as he wanted to discuss other formalities. While discussing other formalities I was surprised to see the back door of my Car open and Mamoo was standing with the pistol pointing towards Khurram, sat in the Car, tied his hands and eyes and told me to drive towards the house in which we were residing and took him to the upper floor of the house and confined him there. They tied him with the chain. After that Sunni called Khurram's father laved Noor and demanded for ransom on refusal of payment of ransom, they told his father that we had killed your son and cut the phone. After 8 days passed on the 9the day they called Kkurram's father-in-law and demanded for ransom. We received the amount of Rs.10 lots from Pizza Hut Gulshan-e-Iqbal and set Khurram free. After that I told Sunni that you have got your payment so leave the house immediately and pardon my son and me. So they said not so easily, we will set you free, we have another target for higher ransom............... (On orders of this Court). I produce my 164, Cr.P.C. statement as Ex. 13/A and say that it bears my signature. (Attested photocopy produced). Accused Salman Qureshi, Zubair alias Mamoo, Imran Ahsan alias Sunni present in the Court are the same". (Bold added) (d) In our view the evidence of PW 1 Mst. Laiba fully implicates the appellants Imran Ahsan and Muhammed Zubair in the kidnapping for ransom of Khurram Javed. (e) The next issue is whether there is any corroborative evidence to support the evidence of PW 1 Mst. Laiba as she is an approver. We set out below the following corroborative/supportive evidence which we have found on record: (i) That her evidence is corroborated in all material respects by the complainant PW 2 Noor Javaid in respect of appellant Imran Ahsan being with Mst. Laiba when she left with his son in broad day light who he identifies, the ransom negotiations, the amount of ransom which was settled and the payment of the ransom and the place where the abductee was released after the ransom was paid. He also had no ill will or enmity with any of the accused and had no reason to falsely implicate the appellants in this case and as such we believe his evidence which was not dented during cross-examination. (ii) That her evidence is corroborated in all material respects by PW 5 Khurram Javed who was the abductee in respect of appellant Imran Ahsan being with Mst. Laiba when he left with them in broad day light to show them properties. That appellant Muhammed Zubair was the one who came in the car with a gun and kidnapped him. That he identified Imran and Zubair who were present when he recorded his S.164, Cr.P.C. statement as his kidnappers and also recognized them again in court. In our view it was not necessary for either Imran Ahsan or Muhammed Zubair to be put before an identification parade as the abductee was with them for 8 to 9 days (as opposed to getting a fleeting glance of each of them) and would have got a good look at them and as such would have been able to easily identify them if he got the chance as he did when he recorded his S.164, Cr.P.C_ statement. In this respect reliance is placed on Zakir Khan v. State (1995 SCMR 1793) which in another case concerning kidnap for ransom the supreme court held as under: "A clear distinction was drawn between the circumstances where the witness only gets a glimpse of the accused who happened to be a stranger to him and where although the witness had met the accused for the first time but he had seen him several times. It was held that in the latter case
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the necessity of holding an identification parade 'could be dispensed with and the accused could even be identified in the Court for the first time. In the present case the kidnapee had remained with the accused sufficiently long not only to identify them by their faces but to identify them even by their names. This is not a case where a witness had only gotten a glimpse of the accused but in this case, admittedly he had remained with them during his captivity and had clearly seen their faces. Therefore, in our opinion, holding of an identification parade was not a mandatory requirement in the present case. The con-tention raised by the learned counsel for the appellants therefore, has very little force." (bold added) e al so corroborates PW I Mst. Laiba as to where he was held captive and the ransom demands and the place where he was released after the ransom was paid_ He also had no ill will or enmity with any of the accused and had no reason to falsely implicate the appellants and as such we also believe his evidence which was not dented during cross-examination_ (iii) Thai her evidence is corroborated in all material respects by PW 7 Muhammed Irshad who was aware of the ransom negotiations, the amount of ransom which was settled and actually paid the ransom amount to the accused at the place…
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