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Petitioner: Muhammad Shahid alias Bahadur VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Muhammad Shahid alias Bahadur vs The State Case No.: Special Criminal Anti-Terrorism Appeals Nos. 4, 10 and 11 of 2012 Date of Judgment:2020-04-28 Reported As: 2023 YLR 1109 Result: Appeals dismissed
JUDGMENT
JUDGMENT MOHAMMAD KARIM KHAN AGHA, J. Accused Muhammad Ibrahim (now deceased) alias Moro son of Habib, Muhammad Saeed son of Muhammad Ibrahim, Amir Bux alias Ghous Bux alias Ghouso Brohi alias Sudhir son of Ramzan, Najamddin alias Najab alias Usman Chandio son of Haji Piyaro Chandio and Shahid alias Bahadur Brohi son of Rasool Bux except absconding accused Mashooq Ali Brohi son of Jaffer Brohi, Wahid Bux alias Wahid Brohi son of not known, Luqman Jatoi alias Akber Jatoi son of not known, Abdul Rashid alias Rashid Burghari son of not known, Azeem Gujar son of not known, Peeral Brohi son of not known, Peer Muhammad alias Peero alias Lapri alias Hassan Gujar son of not known, Abdul Qadir alias Mujeeb alias Azeem Gujar son of Abdul Razzak, Nawab alias Jalal Brohi alias Rashid Burghari son of not known and Muhammad Bux alias Chaman alias Peeral Brohi, were tried by learned Judge, Anti-Terrorism Court No. I, Karachi in Special Case No.36 of 2007 arising out of Crime No.319/2007 under section 365-A/34, P.P.C. read with Section 7(e) of Anti-Terrorism Act, 1997 registered at Police Station Sachal, Karachi. 2. After trial vide judgment dated 3I.O1.2012 the appellants/accused Muhammad. Ibrahim (Now deceased) alias Moro son of Habib, Muhammad Saeed son of Muhammad Ibrahim, Amir Bux alias Ghous Bux alias Ghouso Brohi alias Sudhir son of Ramzan, Najamddin alias Najab alias Usman Chandio son of Haji Piyaro Chandio and Shahid alias Bahadur Brohi son of Rasool Bux (collectively referred to as the appellants) were convicted under section 6(e) of Anti-Terrorism Act, 1997, punishable under Section 7(e) of The Anti-Terrorism Act, 1997 and sentenced for life imprisonment and ordered for forfeiture of their properties. The benefit of Section 382-B, Cr.P.C. was also extended to them. The case against the proclaimed offenders was kept on dormant file till arrest or surrender of accused persons or till further orders.
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3. Being aggrieved and dissatisfied by the judgment passed by learned Judge, Anti-Terrorism Court No.1, Karachi, these appeals have been preferred by the appellants against their convictions. 4. The brief facts of the prosecution case are that the complainant Sajjad Ahmed son of Nabi Bux lodged FIR at Police Station Sachal, Karachi on 05.07.2007 at 0100 hours; to the effect that he was working as Chowkidar at Plot Fatima Town, owned by Syed Rehan Zaidi. As per FIR on 04.07.2007 at about 2015 hours, the complainant and Mr. Shani along with his friends were sitting and after some time, his friends namely Kamran son of Muhammad Akram, Muhammad Farooq son of Haji Samad, Supervisor Adil Ibrar son of Ibrar Hussain and Taxi Driver Sajid son of unknown went in Taxi No.PL- 1721 to go for food. At about 2150 hours on Katcha road near plot Fatima Town, situated near Power Hotise at the distance of 90/100 yards the taxi stopped and the complainant party thought that perhaps the vehicle had broken down and when the taxi stopped two fires from repeater gun were made and the complainant party suspected that those fires were made by their gun man Ghulam Abbas. The complainant, Mr. Shah and his friends then went and checked the vehicle and found nothing in the vehicle. They looked for their friends but could not find them but under torch light they found mobile/cell Nokia 1112 of Mr. Adil and purse of Mr. Farooq at some distance from the place of incident inside the taxi. Mobile phone 6100 of driver was also found. As per the FIR the above persons had been kidnapped by unknown persons for unknown reasons, therefore, the complainant lodged above report in which he had requested for legal action. 5. Initially the investigation of the case was entrusted to ASI Sahab Khan, posted in Investigation Branch at Police Station Sachal, Karachi then on 06.07.2007, the culprits demanded ransom amount of Rs.2 crores from 'the complainant party for the release of the abductees, therefore, Section 365-A, P.P.C. was added to the FIR and the investigation was transferred to AVCC, Karachi which was entrusted to Inspector Attiq-ur-Rehman who conducted the investigation of the case. After conclusion of the investigation he submitted the charge sheet before the competent court of law. The charge was framed against the accused persons to which they pleaded not guilty and claimed to be tried. 6. To prove its case the prosecution examined 16 prosecution witnesses and exhibited numerous documents and other items and thereafter the side of the prosecution was closed. The statements of the accused were recorded under section 342, Cr.P.C. wherein they denied all the allegations and 'claimed false implication at the hands of the police. The accused however did not examine themselves on oath or call any witness in support of their defense case. 7. Learned Judge, Anti-Terrorism Court No.1, Karachi after hearing the learned counsel for the parties and assessm ent of evidence available on record, vide the impugned judgment dated 31.01.12, convicted and sentenced the appellants as stated above, hence these appeals have been filed by the appellants against their convictions. 8. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the judgment dated 31.01.2012 passed by the trial court and, therefore; the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 9. Learned counsel for appellant Najamddin has contended that none of the PW eye-witness abductees are reliable as they have not given a detailed account of their abduction, that there are contradictions in their evidence and that this is a false case concocted by them in order to con their parents in paying to them the ransom amount and as such their evidence should be discarded, that the identification of appellant Najamddin has not been proven as no hulia was given of him in the S.161 statements of the abductees, that the identification parade can be ignored as it was a joint identification parade and no role was assigned to each appellant and for any of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions he has placed reliance on Javed Khan alias Bacha v. The State (2017 SCMR 524), Ghulam Hussain v. The State (2005 YLR 405), Muhammad Shahid alias
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Shandi (2010 YLR 2950) Sabir Ali alias Fauji v. The State (2011 SCMR 563), Shafqat Mehmood v. The State (2011 SCMR 524) Ghulam Qadir v. The State (2008 SCMR 1221), Siraj ul Haq v. The State (2008 SCMR 302), Muhammad Tufail v. The State (2013 SCMR 768) Lal Pasand v. The State (PLD 1981 SC 142 and Muhammad Amin v. The State (sic). 10. Learned counsel for the appellants Muhammad Saeed, Muhammad Shahid and Ameer Bux has adopted the arguments of learned counsel for appellant Najamddin and in addition has contended that the appellants were all shown to the abductees prior to their identification parades and as such the identification parades are of no legal value, that there was nothing to link the appellants to the ransom demand as no phone or SIM was recovered from them, the persons who they allegedly paid the ransom to could not have identified them as it was too dark, that no abductee took the police to the place where they were held captive and as such for any of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt. In support of her contentions she has placed reliance on unreported judgment of Supreme Court Amir Bux alias Ghous Bux alias Gouso Brhohi alias Sudhri v. The State (Crl. Appeal No. 192 of 2017) dated 29.05.2018. 11. On the other hand learned Deputy Prosecutor General has fully supported the impugned judgment and contended that the abductee eye-witnesses are reliable, trustworthy and confidence inspiring and fully implicate the appellants in the kidnapping for ransom, that the eye- witnesses who paid the ransom prove that a ransom demand was made and paid and as such the prosecution had proved its case beyond a reasonable doubt against the appellants and all the appellants' appeals should be dismissed. In support of his contentions he has placed reliance on Junaid Rehman v. The State (PLD 2011 SC 1135), Muhammad Siddique v. The State 2020 SCMR 342; The State v. Haider Zaidi and others (2001 SCMR 1919) and Zakir Khan v. The State (1995 SCMR 1793). 12. 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. 13. 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 for the following reasons; (a) The FIR in respect of the incident was filed with in hours of the incident and such prompt filing of the FIR rules out the possibility of the complainant concocting a false case against the appellants with the police or any other third party. Even otherwise the complainant had no enmity with the appellants and had no reason to falsely implicate them in a case. (b) In our view the foundations of the prosecution's case rests on (a) the eye-witness abductees (including magistrate) and eye-witnesses who paid the ransom and the correctness of their identification of the appellants and (b) any evidence that any ransom demand was made. Turning to the eye-witness evidence of the abductees and those who paid the ransom. (i) Eye-witness abductee PW 1 Muhammed Amin Sajjid. He was the taxi driver who was abducted on 04.07.07. According to his evidence he drove to a plot in Fatima Town to meet some friends and on leaving in order to get something to eat he, Kamran, Farooq and Adil. whilst riding in his taxi were stopped by 5 persons who made them get out of the taxi and made them walk for hours before being driven in a vehicle to a house where they were detained in a room for 21 days before 3 out of the 4 of them were released (including himself) and one was not released on 24 July after his family had paid the ransom. On 15-08-07 he picked out Muhammed Saeed and Muhammed Ibrahim at an identification parade as two of his kidnappers who used to bring food to him. At another identification parade held on 06.12.2007 he picked out Ghous Brohi and Najam Chndio as two other kidnappers and finally at an identification parade held on 05.04.2008 he picked out Muhammad Shahid as one of his kidnappers. Despite this eye-witness correctly picking out the
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appellants at the identification parade in our view based on the particular facts and circumstances of the case where the eye-witness abductee PW 1 Muhammed Amin Sajid had been in captivity for 21 days there was no need to hold an identification parade as over this period he would have got a good look at his kidnappers and would easily have been able to identify them. In this respect reliance is placed on Ghazanfar Ali v. The State (2012 SCMR 215) which in relevant part at Para 13 at P.224 reads as under; "Even otherwise the holding of identification parade is not mandatory and it is merely a corroborative piece of evidence. If the statement of a witness qua the identity of an accused even in Court inspires confidence, if he is consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, the absence of holding of identification parade would not be fatal to the prosecution. In Harbajan Sindh. v. State of Jammu and Kashmir ((1975) 4 Supreme Court Cases 480), the 'Court upheld the conviction where no identification parade had been held and observed that the failure to hold identification parade would not be fatal in cases where enough corroborative and conclusive evidence was available. A similar view was taken in Jadunath Singh v. State of U.P. ((1970) 3 Supreme Court Cases 518). (bold added) Likewise in the case of Zakir Khan v. State (1995 SCMR 1793) which was a case which also concerned kidnapping for ransom it was held by the Supreme Court 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 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 then names. This is not a case when 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 contention raised by the learned counsel for the appellants therefore, has very little force." (bold added) Again in the case of The State v. Haider Ali and others (2001 SCMR 1919) which was another kidnapping for ransom case the Supreme Court held as under; "Abductee lived in captivity of the respondents for 4/5 days and had seen them closely. He also conversed with them. Even if the evidence of identification test is excluded altogether, yet, his sole testimony is sufficient to conclusively prove that the respondents had abducted him." Even though in our view the identification parades were not necessary although there were some minor defects in the identification parades we consider that we can still also rely on them as a corroborative piece of the eye-witnesses identification of the appellants based on the case of Muhammed Siddique v. State (2020 SCMR 342) which held as under at Para 5 which is set out below; "5. Castigating severely the evidence of test identification parade, the learned counsel relied upon the guidelines laid down in the case of Kanwar Anwar Ali (PLD 2019 Supreme Court 488) to urge exclusion thereof. The supra case indeed a fine piece of juridical literature, nonetheless, does not extend much help to the convicts; it mainly addressed laconic approach adopted by a Magistrate in holding the test identification parade in the said case while highlighting general principles of law on the subject. Test identification parade is a method of proof contemplated by Article 22 of the Qanun-e- Shahadat Order, 1984, reproduced below for the convenience of reference:- "Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of
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anything or person whose identity is relevant, or fix the time' or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose". The above framework provides enough space to admit evidence in prosecution of offenders previously unacquainted with the victims or the witnesses; appraisal of such evidence is subject to same principles as are universally applicable to any piece of evidence, under consideration in a criminal trial; there are no additional barricades as is evident from the plain reading of the Article ibid; without prejudice to - the safeguards available to an accused at each stage of trial, essentially fair as guaranteed under the Constitution, nonetheless, it does not cast an artificially heavier onus on the prosecution to meet standards of proof beyond human capacity. Each criminal case is to be decided having regard to its own peculiar facts and circumstances. A test to be essentially applied in one case may absolutely be irrelevant in another, as the crimes are seldom committed in identical situations; there may be cases wherein prosecution must assign distinct roles played during the occurrence by the culprits for determination of their guilt as well as consequences thereof, however, there are cases in which totality of transaction may not warrant reparability for such determination, like the one in hand. Cases involving abductions, dacoities and sudden assaults more often than not, constitute episodes wherein different roles played by the culprits merge into integral totality of the crime, thus, it would be too harsh as well as unrealistic to demand exact reenactment' of roles by the witnesses. Capacities even intellectually most sharp dwindle drastically in calamitous situations, therefore, the administration of criminal justice, in such peculiar situations, has to be dynamically balanced upon fair trial without prejudice to the accused as well as due weightage to the prosecution evidence without being swayed by illusory notions, subjectively structured upon hypothetical beliefs Having found the witnesses with no axe to grind, in a comfortable unison on all the salient features of the prosecution case as well as events collateral therewith, we do not feel persuaded by the arguments, couched on hyper technical premise. Petitions fail. Dismissed." (bold added) The case which we are currently deciding attracts the above dicta as it is a case of sudden abduction. Even a delay in holding the identification parade of over a year was not fatal to the identifier correctly identifying the accused whilst in this case the identification parades were carried out relatively expeditiously. In this respect reliance is placed on the case of Solat Ali Khan v. The State (2002 SCMR 820) and in any event evidence flowing from an identification parade is only a corroborative piece of evidence and cannot supersede reliable, trustworthy, confidence inspiring direct evidence. In this respect reliance is placed on Muhammad Ehsan v. The State (2006 SCMR 1857). This eye-witness was a natural witness and not a chance witness. He had no enmity with the appellants and had no reason to falsely implicate them. His evidence was not dented despite lengthy cross-examination and as such we believe that this eye-witness has correctly identified all the appellants as playing a role in his kidnapping for ransom along with the other abductees. (ii) Eye-witness abductee PW 3 Kamran Akram. He was abducted on 04.07.07 along with taxi driver PW 1 Muhammed Amin Sajjid. Despite a lapse of two years in giving his evidence from the incident in his evidence he corroborates eye-witness PW 1 Muhammed Amin Sajjid in all material respects. He specifically states that the kidnappers told him that they had kidnapped them for ransom and if no ransom was paid they would kill them. He, PW 1 Muhammed Amin Sajjid and PW 4 Farooq Ahmed were all released at the same time whilst PW 5 Adil was not released with them as according to his evidence PW 5 Adil's family had not paid the ransom. According to his evidence Adil was released 14 to 15 days after them. He attended 3 separate identification parades like PW 1 Muhammed Amin Sajjid where he picked out Muhammed Ibrahim, Najamdin and then Amer Bux
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and finally Muhammed Shahid is playing a role in his kidnapping. The same considerations apply to him as for eye-witness abductee PW 1 Muhammed Amin Sajjid and for the same reasons we believe that he has correctly identified the appellants he mentioned as some of the persons who played a role in his kidnapping for ransom. (iii) Eye-witness abductee PW 4 Farooq Ahmed. The same considerations apply to him as to eye- witness abductee PW 1 Muhammed Amin Sajjid and eye-witness abductee PW 3 Kamran Akram. Their evidence corroborates each other in all material respects and at 3 separate identification parades he identified each of the appellants as being involved in his kidnapping for ransom. We believe this witness as well and are of the view for the reasons mentioned in respect of the other 2 abducted eye-witnesses mentioned above he has correctly identified all 5 of the appellants who played a role in his kidnapping for ransom. (iv) Eye-witness abductee was PW 5 Adil Abrar Muhgal. He gave the same evidence as eye- witness abductee PW 1 Muhammed Amin Sajjid, eye-witness abductee PW 3 Kamran Akram and eye-witness abductee PW 4 Farooq Ahmed. Their evidence corroborates each other in all material respects. He states in his evidence that he was the abductee who was not initially released with the other abductees Sajjid, Kamran and Farooq but was kept in captivity because his parents had not paid the ransom. On 02.08.07 he was released after his parents had paid the ransom. Despite however identifying all the appellants at the identification parade he refused to do so in court and was declared hostile by the prosecution. Thus, to be on the safe side we have discarded his evidence vis a vis the identification of the appellants. (v) PW 2 Muhammed Ashfaq is the magistrate who conducted the 3 separate identification parades of the appellants who were picked out by the eye-witnesses mentioned above (including eye-witness abductee PW 5 Adil Abrar Muhgal who later resiled from his identification of the appellants in court) who also prepared and exhibited all the memo's of identification parades which confirmed that each of the above eye-witness abductees did identify each appellant as per their evidence before the identification parade which he carried out. (vi) Eye-witness PW 6 Hafeez Ahmed is the maternal uncle of PW 4 abductee Farooq Ahmed. He is not an abductee eye-witness but is a witness to the ransom negotiations and an eye-witness to identifying one of the persons who he paid the ransom amount to. He negotiated the ransom over a long period of time with the kidnappers along with PW 9 Imran Akram who was the brother of PW 3 abductee Kamran Akram and was an eye-witness to the payment of the ransom and confirms in his evidence that PW 9 Imran Akram was recording their ransom negotiations with the kidnappers. According to his evidence the ransom was agreed as 10 lacs which was to be divided and paid equally by the family of each abductee. He Abid and Imran left to pay the ransom as directed by the kidnappers. According to his evidence 3 persons came on a motorbike to an appointed place to collect the ransom. He handed over the ransom amount to one of them and then 3 abductees were released. He identified appellant Muhammed Shahid as one of the persons who came to collect the ransom in court. He was a natural witness and not a chance witness who had no reason to falsely implicate the appellant Muhammed Shahid. Since in court identification has been generally deprecated by the Supreme Court we have only given a little weight to his identification of appellant Muhammed Shahid especially as he would only have got a fleeting glance at him at night time. (vii) Eye-witness PW 9 Imran Akram is the brother of PW 3 abductee Kamran Akram. He is not an abductee eye-witness but is a witness to the ransom negotiations and an eye-witness to identifying one of the persons who the ransom was paid to. He corroborates PW 6 Hafeez Ahmed in all material respects concerning the ransom negotiations with the kidnappers and the fact that he, PW 6 Hafeez and Abid went to pay the ransom. He also corroborates PW 6 Hafeez Ahmed about the amount to be paid and how the kidnappers sent them from place to place before 3 of them came
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on a motorbike and collected the ransom amount from PW 6 Hafeez Ahmed and thereafter released 3 of the abductees. He also identified appellant Muhammed Shahid as one of the persons who came to collect the ransom in court. He was a natural witness and not a chance witness who had no reason to falsely implicate the appellant Muhammed Shahid. Since in court identification is generally deprecated by the superior courts we have once again only given a little weight to his identification of appellant Muhammed Shahid especially as he would only have got a fleeting glance of him at night time. Importantly he also handed over the audio recording of the ransom demands which was made by the kidnappers on the equipment which was provided by the CPLC which is in line with his evidence and that of PW 6 Hafeez Ahmed. Thus, based on our reassessment of the evidence of the above eye-witnesses when taken together we find that the prosecution has proved beyond a reasonable doubt that all the appellants are guilty of kidnapping the abductees under section 365, P.P.C. The next issue is whether any demand for ransom was made so as to elevate the…
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