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Petitioner: NAZIR AHMAD VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada, Muhammad Aslam Arain Title: NAZIR AHMAD vs THE STATE Case No.:Cr. Appeals Nos.194, 205, 206 and 207 of 1991 Criminal Appeal No.194 of 1991
JUDGMENT
Reported As: 1992 P Cr. L J 2191 Result: Appeals allowed Judgment JUDGMENT MUHAMMAD ASLAM ARAIN, J.--- These four appeals arise out of judgment, dated 4-8-1991 passed by the Judge, Special Court II (S.TA.) Karachi in Case No.132 of 1990, under section 365/34, P.P.C. (F.I.R. No.410 of 1990 of Police Station Bahadur Abad Karachi). The five appellants in these appeals (alongwith acquitted co-accused Komail and Imran) were tried on the charge of having abducted one Hasan Mahboob son of Mahboob Illahi on 24-8-1990 for ransom. Each one of the appellants were found guilty of the offence under section 365-A, P.P.C. And convicted and sentenced to imprisonment for life, fine of Rs.50,000 each and in default of payment of fine to undergo further R.I. For three years. Accused Komail and Imran were given benefit of doubt and acquitted. Accused Din Muhammad alias Dino was absconder and his case was ordered to be kept on dormant file. The ransom amount of Rs.3 lacs recovered during investigation, is directed to be returned to complainant Mahboob Illahi. The five convicts have challenged their conviction through these appeals. Briefly stated, the facts are that on 24-8-1990 at 1740 hours, one Mahboob Illahi lodged F.I.R. No.410 of 1990 at Police Station Bahadurabad under section 365/34, P.P.C. It was stated that his son Hassan Mahboob aged about 16 years went in his Car No.R-6536 to Bungalow No.15 of one Jehangir Syed Shahzada, near P.I.A. Hospital, and did not return till 3-30 p.m., when Sikandar and Faisal, Jehangir's younger brother Shoaib came and informed him that the car in which Hassan Mahboob had gone, was standing abandoned in a lane in front of their bungalow. Hasan Mahboob was not in the car and the key of the car was missing. He went to the given place, found the car
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without key in the switch and having got no further information, lodged the report that some unknown persons had abducted his son. Sabir Hussain, Incharge Police Station Bahadurabad, visited Wardat, prepared Mashirnama Exh.37 in presence of Mashirs Babar and Shoaib, examined Chowkidars Jamil and Hayee, and recorded further statement of complainant. Since he could not get any clue of kidnapee, he transferred the case to C.I.A. On 7-10-1990. On the night between 6th and 7th October, 1990, Sultan Masood Kayani, Inspector C.I.A. Anti- kidnapping Cell, Karachi, formed different police parties for patrol alongwith Eagle Squad under supervision of D.S.Ps. Ch. Abdul Hameed and Arshad Kamal Kayani. He himself headed a polite party, which included S.I. Latif, A.S.I. Arshad Butt, A.S.I. Muhammad Maroof, H.C. Afzal Beg and others and went in 2 police vans for patrolling in Manghopir area. During that, he received spy information that some culprits were coming from Hub side. He arranged Nakabandi near Karam Ceramic Factory on the incoming road from. Hub, when at 5-45 a.m. On 7-10-1990, they saw a Suzuki Pickup, which when reached near, was stopped, with 2 persons in it. On investigation, the driver gave his name as Dhani Bux, while the other gave his name as Sulleman. On their search, a .32 bore pistol loaded with 6 live bullets was recovered from the folds of Shalwar of Dhani Bux while from Sulleman a .32 bore pistol loaded with 6 live bullets concealed in the folds of his Shalwar was recovered. As they had no licences, they were arrested under Mashirnama Exh.21, in presence of Arshad Mahmood Butt and Mashirs A.S.I. Muhammad Ayaz and H.C. Afzal Baig. The Suzuki Pick-up was also seized. The arrest of Dhani Bux and Sulleman and recovery of unlicensed arms was conveyed to D.S.Ps. Ch. Abdul Hameed and Arshad Kamal Kayani, who both reached soon, and interrogated the 2 accused. During interrogation both the accused agreed to point out the co---accused who were kidnappers and also the kidnapee Hassan Mahboob. The accused took the police party to Bungalow No.34-A, Khayabane Janbaz Defence Housing Society, which was raided and accused Nazir produced a K.K. Loaded with 20 live bullets which he was carrying and on his pointation, a rifle of .22 bore loaded with 5 live bullets and 15 live bullets of K.K. Were recovered from under a bed on the- floor of a room. Since he had no licence for the said arms, he was arrested under Mashirnama Exh.10, A.S.I. Muhammad Maroof, A.S.I. Arshad Mahmood Butt and a private person Dilbar alias Aslam, acting as Mashirs. Accused Nazir then volunteered to point out co-accused Abdul Sattar Niazi, Muhammad Asim, Komail. Imran and absconding accused Din Muhammad. He first led the police to the house of accused Abdul Sattar Niazi, situated in Dhobi Shat Niazi Colony. He was arrested from his house, under Mashirnama Exh.11 D.S.P. Arshad Kayani and Ch. Abdul Majeed went to C.I.A. Centre with accused Dhani Bux, Sulleman and Nazir. Inspector Masood Kayani, with his party remained back. Accused Abdul Sattar Niazi volunteered to lead the police and point out the house of accused Asim in Jinnah Coop. Housing Society. Accused Asim was arrested from his house in presence of A.S.I. Maroof and Arshad, but nothing was recovered from him. During interrogation, accused Asim agreed to point out the house of co- accused Imran. He led police to Imran's house, wherefrom Imran was arrested, but nothing was recovered from him. Both Asim and Imran volunteered to point out the house of co-accused Komail. They led the police to Komail's house wherefrom he was arrested. On 8-10-1990, on the pointation of accused Komail, Car No.221-421, used in the kidnapping was recovered from show room of J.K. Motors, situated in Sindhi Muslim Housing Society, which, according to accused Komail, he had taken on rent. The agreement of renting out the car and N.I.C. Of accused Komail was produced by Abdul Jabbar owner of J.K. Motors, who further disclosed that accused Komail was introduced to him by one Yousif; owner of Crown Motors.
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During interrogation, accused Asim voluntarily agreed on 13-10-1990 to produce the ransom amount, which he had kept with one Abdul Wahid, owner of King Carpets on Tariq Road. He led the police to the said shop where Abdul Wahid Motiwala was sitting. Accused Asim asked Wahid to bring the cash kept by Asim with him. Abdul Wahid brought an envelope of Khaki colour, which had three bundles of Rs.1,000 denomination cash, amounting to Rs.3 lac. The cash was secured under Mashirnama Exh.15. On 18-10-1990, accused Sulleman volunteered to give confession for which he was produced before Magistrate C.I.A. On 20-10-1990, who recorded his confession. On the same day i.e. 20-10- 1990, identification test of accused Sulleman, Dhani Bux, Abdul Sattar Niazi and Nazir Ahmed was held by the Magistrate through kidnapee Hassan Mahboob. On 19-10-1990, accused Dhani Bux voluntarily agreed to point out that Oil Tanker belonging to one Khair Muhammad, in village Haji Muhammad Goth, Manghopir area used in removing kidnapee. The police went and recovered tanker NO.QA-4510 at the pointation of Dhani Buy, under Mashirnama Exh.35. After usual investigation, all the seven accused were challaned for offence under section 365-A, P.P.C. The charge was framed against the appellants for offence under section 365/34, P.P.C. And also 365-A/34, P.P.C. On 13-1-1991. The appellants pleaded not guilty and claimed to be tried. Before the charge was framed, N.B.Ws. For procuring attendance of absconding accused Din Muhammad were issued and since he could not be arrested, he was declared absconder. Prosecution examined P.W.1 S. Abdul Jabbar Exh.5. He was the proprietor of J.K. Motors, and dealt in rent-a-car business. He stated that 21-8-1990 while he was in his office at 11 or 12 noon accused Komail came and requested for a car in rent. One Muhammad Yousif of New Crown Motors telephoned him to give car on rent to Komail, as he was his man. Car No.0221--421 Charade was given to Komail and necessary form was signed and identity card of Komail was obtained, which he produced as Exh.6. On 25-8-1990, accused Komail returned the car and paid the amount. Later, on 8-10-1990 police came and enquired about the car and he gave the details to police and also showed the documents executed by Komail. P.W.2 Muhammad Yousif Exh.8 was an employee in the show-room of Crown Motors and he identified accused Komail in the Court, who according to him resided in his Mohallah. He also stated about a telephone call from one Jabbar of J.K. Motors recommending to give car to Komail on rent. The car was then returned and on 8-10-1990, C.I.A. Inspector came to the show-room alongwith accused Komail and Jabbar of J.K. Motors. He was taken to C.I.A. Centre but subsequently released. P.W.3 Arshad Mahmood Butt Exh.9 was posted as A.S.I. In C.I.A. Centre on 7-10-1990. At 2-00 a.m. On the said date he left for patrol duty alongwith Inspector Sultan Masood Kayani, S.I. Latif Shaikh, A.S.I. Maroof, A.S.I. Aijaz and others. He stated that at 5.45 a.m. After Inspector Kayani got spy information that kidnappers were coming in a Suzuki Carry, a Nakabandi was arranged near Karam Factory and at 5-45 a.m. They saw a Suzuki coming. It was stopped and on inquiry the two persons in the car gave their names as Dhani Bux and Sulleman (both accused). On interrogation and a search a .32 bore pistol from Shalwar folds of Dhani Bux and .30 bore pistol from Shalwar folds of Sulleman duly loaded both were recovered under a Mashirnama. He also stated that both accused voluntarily agreed to point out the house of accused Nazir being 34-A Clifton Karachi, who was associated with them in the abduction of Hassan Mahboob. This witness alongwith the two accused and police party then went to the house of Nazir, and on a kock at the door, accused Nazir came out and was arrested. On search of his house from under a bed on floor a 7 mm rive was found lying loaded with five bullets. It was seized and on further pointation of Nazir one K.K. Loaded with 20 live bullets in the magazine was recovered from another room. It was seized by Inspector under Mashirnama Exh.10. A.S.I. Maroof and one Dilbar, acted as Mashirs. Arshad Mahmood Butt
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also signed Mashirnama Exh.10. He also stated that accused Nazir then volunteered to point out another accused Sattar Niazi, associated in the crime and on such information the police was led by Nazir to the house of Sattar Niazi in Dhobi Ghat Niazi Colony. Accused Niazi came out from his house and was arrested under Mashirnama Exh.11. Accused Sattar Niazi then agreed to point out accused Asim resident of Bahadurabad to be their other associate. The police then went to the house of Asim, knocked at the door and when Asim came out he was arrested vide Mashirnama Exh.12, A.S.I. Maroof and Arshad Mahmood Butt having acted as Mashirs. Accused Asim then volunteered to point out the house of accused Komail and Imran who were also said to be their associates. He took the police party first to the house of Komail in Bahadurabad who was found present and was arrested. Mashirnama Exh.13 for his arrest was prepared. On the pointation of accused Asim the police went to the house of Imran in Bahadurabad and his Flat was pointed of out by Asim. He was found in his flat and was arrested vide Mashirnama Exh.14. He further stated that on 13-10-1990, accused Asim voluntarily agreed to point out one Wahid, running a carpet shop at Tariq Road, where ransom money was deposited. Accused Asim took them to the said shop where Wahid was present and he produced Rs.3 lac in a brown envelope which were in 3 pads of Rs.1,000 denomination each. It was secured under Mashirnama Exh.15. On 14-10-1990, father of abductee came to C.I.A. Police and produced a cassette before Inspector Kayani and it was secured under Mashirnama Exh.16. He admitted in cross-examination that Bungalow No.34-A from where accused Nazir was arrested, was situated in Clifton. He denied the arrest of accused Asim from his house on 7-10-1990 at 6-00 a.m. He admitted in cross of accused Imran that there were so many flats near the flat of Imran but did not take any Mashir from the locality. He admitted that Bungalow No.34-A was in possession of Sardars of Baluchistan and was occupied by accused Nazir as Chowkidar. P.W. 4 Abdul Wahid Exh.7 was the proprietor of King Carpets at Tariq Road. He stated that accused Asim was known to him and they had family and business terms. He also stated that about one and half months before 17-10-1990 when police came to him, mother of accused Asim in presence of Asim, gave him Rs.3 lac for purchase of a car for Asim. This witness stated that he also dealt with car business. The money was kept by Asim for the said purpose but he could not get any suitable car. On 7-10-1990, while he was in the mosque for Isha prayers he was called by and asked him to return Rs.3 lacs kept with him by accused Asim. The witness told the police to come next morning as it was late in night and the shop has been closed. He was taken to C.I.A. Centre and on 8-10- 1990, his elder brother Yousif went to C.I.A. Centre and handed over Rs.3 lacs to C.I.A. Police. This witness was declared hostile by the prosecution as he did not support prosecution case. In cross- examination by A.P.P., he admitted that accused Asim was his relative. He admitted that Mashirnama Exh.15 bore his signature but contents thereof were not correct and that it was signed by him at C.I.A. Centre and not at his shop. He denied that accused Asim had come to his shop and on his pointation he handed over Khaki envelope containing Rs.3 lacs. To a question by the defence counsel he admitted that mother of accused Asim was investor in his car business and she used to invest money in the business. P.W.5 Mahboob Illahi Exh.18 is the complainant and father of the abductee Hassan Mahboob. He stated that on 24-8-1990 at 3-00 p.m. Two Chowkidars came to him from Market, one of whom was Amirullah while name of other he did not remember. They were known to him personally and requested to point out the house of Jehangir and Sikander who were their relatives and that a burglary was committed in their shop. He directed his son Hassan Mahboob (abductee) to take the Chowkidars in his car to the house of Sikandar and Jehangir. They were taken by the abductee in his car No.R-6536 Nissan but Hassan Mahboob did not return for about 15/20 minutes whereupon he got perturbed. He telephoned Jehangir and Sikander and enquired about his son who informed that his son had gone away after dropping the Chowkidars. He took his car and went in search of
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his son and near P.IA. Hospital, he saw car of his son standing in a lane and was not properly parked. He went near and found that his son was not in the car but the key was in the switch: Through some one he took the car of his son to his house while he himself went to lodge report at Bahadurabad Police Station. On the next day at 3 or 4 p.m. He received a telephone call and the caller threatened him not to collect any persons in his house and also to ask police not to interfere. The caller also informed him that Hassan Mahboob was with him and telephone number be removed from observation and further that due to interference, he would be risking life of his son. For 18 days thereafter there was no contact from accused side while he made search on his own. On 10September, 1990 at 7-00 p.m. He received telephone from the same caller who enquired if complainant was ready to pay a ransom. The complainant replied that he had already paid the ransom and that he was not prepared to talk to the caller until identification of his son was given as he had already been defrauded and was expecting his son back by that time. The caller gave his code name as `Jan' and further threatened to pay ransom as the caller was not concerned with earlier payment. Again after two days he received call from the same `Jan' asking for ransom. Conversation between complainant and caller went on, various questions having been asked by complainant about the identity of his son. On next day `Jan' again telephoned complainant saying that his son takes the medicine `Kalhan'. On this the complainant became sure that his son was with the caller. On enquiry by the complainant about the amount of ransom, he was told that guarantor would talk to him on the subject. Thereafter the guarantor telephoned complainant saying that he was his well-wisher and assured that his son would not be harmed if ransom was paid. The complainant told hint that he had already paid ransom but was willing to pay further according to his capacity. A demand of Rs.50 lacs was made by the guarantor and asked complainant to negotiate for the amount in Defence Mosque where the complainant went but nobody turned up from the culprits side. There was another call from the guarantor saying that he could not come due to some accident, and repeated his demand of Rs.50 lacs, threatening the complainant that if the amount was not paid he would not be responsible for the safety of his son. After a few days, he again received telephone call from `Jan' demanding Rs.50 lacs as ransom and also extending threats. The amount was subsequently reduced to Rs.30 or 35 lacs but after negotiations on different dates, he agreed to pay Rs.3 lacs as ransom. He was asked to bring Rs.3 lacs to Mudassar Mosque in K.DA. Scheme-I at the agreed time of 11-00 or 11-30 a.m. And agreed date was 26September, 1990. He was directed to put the money on the third rack in the wall in the lower portion of the mosque. He then went and put the cash wrapped in newspaper and put it at specified place. He then offered Nafal and since nobody turned up in the mosque, he came back with the money. Soon thereafter he was asked on telephone as to why he had not kept the, money as promised. The complainant informed that there was nobody in the mosque and therefore, he brought back the money. Again he was directed to go and keep the money at the specified place and the caller repeated his name as `Jan'. Complainant went and kept the money at desired place and after half an hour he was asked on telephone by the guarantor if he had paid the money and complainant confirmed it. The caller insisted on disclosing the amount which he had paid saying that if complainant did not disclose about the exact amount his son would not be released as the guarantor gas to inform the person having custody of kidnapee. On this the complainant disclosed that he had paid Rs.3 lacs. His son was released on Super Highway and came back home on 2October, 1990. The conversation between him and callers on telephone was recorded by him and its tape was given to police. He produced F.I.R. As Exh.19 and Tape as Article A. He denied in cross-examination regarding the mention by him in the F.I.R. That the key of the car of his son was not in the switch. He also denied to have mentioned in the F.I.R. That the Mohallah boys told him about the car standing in a lane. He was asked about various omissions in his F.I.R. Andth th nd
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further statement to C.I.A. Police: He stated in cross-examination that earlier also he had paid ransom of Rs.3 lacs. P.W.6 Afzal Baig Exh.20 was Head Constable C.I.A. On 7-10-1990 when during the night between 6th and 7th October, 1990 he accompanied Inspector Sultan Masood Kayani for patrol to Manghopir area, he got the facts about spy information received by Inspector Kayani and having stopped a Suzuki near Karam Ceramic Factory and that those persons were stopped and on interrogation they gave their names as Dhani Bux and Sulleman. He also gave the facts about recovery of unlicensed arms from them. The Mashirnama Exh.21 was signed by him as one of the Mashirs. He denied in cross-examination that both Dhani Bux and Sulleman were arrested on 6-10-1990 at 3-00 p.m. From their house. P.W.7 Hassan Mahboob Exh.22 is the kidnapee in the case. He stated that on 24-8-1990 at 3-00 p.m. In response to call bell, he went outside and saw two Chowkidars enquiring about his father who was called and under directions of his father, he took the Chowkidars in his Car No.R-6536 Nissan Sunny to the house of Jehangir and left them there. On his way back, when he reached at P.IA. Hospital, a Charade of white colour with tinted glasses came end blocked his way. One of the occupants of the said car came down and forcibly pulled him out on pistol point and pushed him in the Charade car where three other culprits were already seated. His car was left at the road with the key in the starter, his head and face was covered with a white pillow and he could slightly see. The car was stopped after about 15 or 20 minutes, when accused Dhani Bux came inside the car. He was then taken to a room and was made to be seated. He pointed out at accused Dhani Bux in Court to be the same. At about mid-night time, he was taken in a wagon to some other house where he was kept for about 4 and 5 days and two culprits used to bring meals for him. They were identified by him in Court to be accused Sattar Niazi and Nazir. He also stated that during this period, one culprit with muffled face used to visit him and said that they were demanding Rs.50 lacs from his father for his release. After live days he was taken in a Tanker to Baluchistan but he could not say who had taken him to Baluchistan but gave the name of one person in the Tanker as Ishtiaque. He also stated that he was taken in the jungle in hilly track and accused Sulleman was there and he correctly pointed out to Sulleman in Court. He was kept there for about 9 days and during this period, Sulleman got tired and said that if he was paid Rs.1,00,000 he would set hurt free. The witness also stated that he was told by Sulleman that accused Komail, Asim, and Imran had got him abducted and that they would have got Rs.50 lacs from his father. The witness further stated that he was kept in a jungle for about 25 days during which he was shifted from one place to another and during this time two culprits with muffled faces came and enquired about the medicine which he used to take and the name by which his uncle called him. He gave the name of medicine and also informed that he was called Malang. The names of these two culprits were given by Sulleman as Komail and Asim and they were known to the witness as they resided in his Mohallah. Thereafter he was taken in a truck and left on Super Highway and was given R s.130 and he was told that they had received the ransom and were therefore releasing him. During his stay in jungle, the family of accused Sulleman used to visit him and gave meals. The children of Sulleman also disclosed that real name of Ishaque is Din Muhammad or Dino. After coming to his house he was not in proper senses and was therefore, kept in a room, his father not allowing any body to see him. He then was sent to Lahore, without meeting anybody. He read in the newspaper that his abductors had been arrested and so also he saw the photographs of such culprits but could not identify any of them. He was then called to Karachi where identification test through him was held and from a line of 15 or 17 persons he picked out accused Sattar Niazi, Dhani Bux, Sulleman and Nazir. P.W.8 Munawar Exh.23 stated that on 13-10-1990 at 3-00 p.m. While he was sitting at the bus stop near National Identity Card Office, Tariq Road, police van came and took him to a Police Inspector
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in another van. He found accused Asim in police custody whom he identified in the Court. In his presence Asim took the police to the counter where Abdul Wahid, a bearded man was sitting. Accused Asim asked Abdul Wahid to return the Amanat which was kept with him in respect of ransom. Abdul Wahid handed over one envelope to police which contained three bundles of Rs.1,000 denomination each amounting to Rs.3 lacs which police secured under Mashirnama Exh.15. P.W.9 Syed Shahzad Nagi Exh 24 was Special Magistrate C.I.A. Karachi and on 20-10-1990, C.I.A. Police asked him to supervise identification parade. The witness Hassan son of Mahboob Illahi was produced before him whom he made to sit in his Chambers. The police produced four accused namely Sulleman, Dhani Bux, Abdul Sattar Niazi and Nazir Ahmed and they were mixed with seven dummies. Each one of the accused was separately called to stand in the line and witness Hassan Mahboob was called to identify. The four accused named above were individually picked out by Hassan Mahboob. The memo of identification as Exh.26 was prepared by him. He also recorded confession of accused Sulleman on 20-10-1990 which he produced as Exh.30. He admitted that the confession Exh.30 did not bear the seal of the Court on any of the four leaves. He denied a question in cross-examination that all the documents were prepared by…
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