Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Himat Ali and others VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Zulfiqar Ali Sangi Title: Himat Ali and others vs The State Case No.:Criminal A.T.A. Appeal No. D-50, Criminal Appeal No. D-55 and Criminal Jail
JUDGMENT
Reported As: 2021 P Cr. L J 150 Result: Appeal dismissed Judgment JUDGMENT ZULFIQAR ALI SANGI. J.---By this common judgment, we intend to dispose of above captioned appeals as the same arise out of FIR No. 56 of 2015 registered at Police Station Taluka Mirpur khas under sections 365-A, 34, P.P.C. read with sections 6/7, A.T.A. 1997, FIR No. 55 of 2015 registered at Police Station Khaan District Mirpurkhas under sections 324, 353, 100, 34. P.P.C. read with sections 6/7, A.T.A., 1997, FIR No. 56 of 2015 registered at Police Station Khaan Distric t Mirpurkhas under section 23(1)(a). Sindh Arms Act, 2013, FIR No. 57 of 2015 registered at Police Station Khaan District Mirpurkhas under section 23(1)(a), Sindh Arms Act, 2013 and FIR No. 58 of 2015 registered at Police Station Khaan District Mirpurkhas under section 23(1)(a), Sindh Arms Act, 2013. 2. After registration of above FIR investigation was conducted and challans were submitted before the concerned court, who after taking cognizance allotted separate special case numbers. Thereafter learned ADPP filed application under section 21-M on beha lf of State, which was allowed on 30.10.2015 and all the cases were ordered to be amalgamated in Special Case No. 18 of 2015 and learned Judge of Antiterrorism Court, Mirpurkhas after recording evidence and completing all formalities passed a common judgment dated 05.05.2016, which is impugned before us in the above appeals. 3. Learned trial court by impugned judgment has convicted the appellants and sentenced each of them to suffer imprisonment for lite and further ordere d forfeiture of their moveable and immoveable properties in favour of government for committing offences of kidnapping for ransom under section 365-A . P P.C. and section 7(c) of Anti- Terrorism Act, 1997 read with section 34. P.P.0 They were also cam ;cted in police encounter case (Special Case No.19/2015) for offence under section 7(h) of Anti-T errorism Act, 1997 and were sentenced to suffer R.I for 5 (five) years' and to pay fine of Rs.1.00.000 (one hundred thousand) each and in defaul t whereof to suffer further RI for
---
## Page 2
one year, appellant Arz Muhammad was also convicted for possessing .30 bore pistol under section 24 of Sindh Arms Act. 2013 in Special Case No. 20 of 2015, to suffer R.I for 02 (two) years' and to pay fine of Rs. 50,000/-(fifty thousand only) and in default whereof to suffer further R.I for six months. Appellants Sulleman and Himat Ali were also convicted in Special Case Nos. 21 and 22 of 2015 respectively and were sentenced under section 25 of Sindh Arms Act. 2013 to suffer R.I for 03 (three) years and to pay a fine of Rs. 50,000/- (Filly thousand only) each and in default whereof to suffer further RI for six months. However , benefit of section 382-B, Cr.P.C. was extended to them. 4. The facts as per FIR No. 56 of 2015 registered at Police Station Taluka Mirpurkhas are that complainant Muhammad Arab Mahar came at police station and lodged FIR by stating that he is zamindar , his uncle Haji Noor Muhammad Mahar is doing business of cattle, on 05.09.2015 he along with his cousin Muhammad Ramzan and uncle Haji Noor Muhammad left home for cattle market, Umerkot, when they reached Mirpurkhas-Umerkot road at about 0600 hours, suddenly one red colour Margalla Car No. AAB-653 came from Mirpurkhas and stopped near them. Complainant party saw five perso ns sitting in the car, out of which four persons who were armed with weapons alighted and kidnapped Haji Noor Muhammad Mahar and went towards Umerkot. Complainant party returned to their village and informed about the incident to Sirajuddin son of abductee Haji Noor Muhammad Mahar . On 07.09.2015 Sirajuddin received a phone call from his father's mobile number for payment of ransom of Rs: 1,50,00,0001= for release of Haji Noor Muhammad. Subsequently he was continuously receiving calls for arrangement and payment of ransom amount up to 14.09.2015. Such FIR was registered on 17.9.2015. 5. On the same day i.e. 17.09.2015 SIP Nizamuddin Khaskheli SHO P.S Taluka Mirpurkhas lodged another FIR bearing Crime No.55 of 2015 at Police Station Khaan District Mirpurkhas for offence under sections 324, 353, 100, 34, P.P.C. read with Section 6/7 ATA. alleging therein that he is posted as SHO Police Station Taluka Mirpurkhas, he received information from SIP Akbar Mari of Police Station Khaan that he has received spy information that Haji Noor Muhammad Mahar who was abducted from the jurisdiction of Police Station Taluka Mirpurkhas has been kept by kidnappers in sugarcane crop near the house of Khamiso Katohar near Patoyoon-Nawabad Road and now they are preparing to shift him to another place . He also called for other police force of different police stations and also informed the higher authorities for search and recovery of abductee, upon which complainant along with his staff also come via Dah-Dari and reached at pointed place along with his staff at about 1345 hours, then SHO Police Station Khaan namely Akbar Mari informed through wireless that one red colour Margalla Car No: AAB-653 was coming towards Dah Dad Mori from the house of Khamiso Katohar and disclosed that he was following the Car. At about 1400 hours they saw said car coming in speed towards Dah Dari Mori, they signaled to stop the car which was stopped and 5 persons duly armed with deadly weapons including one empty handed alighted from the car; empty handed person raised crises saying save' save' and started fleeing towards North, other four persons made straight firing upon the police, the police also retaliated' in their defense. The encounter continued for about half an hour and lastly one person from accused side surrendered while raising hands, three persons fell down on ground and firing stopped. Police saw that person having KK had died in firing and two persons were injured and they had firearm injuries on their legs, who had pistols and were taken into police custody . The person who raised crises came towards police and disclosed that he was kidnapped by accused persons on 05.09.2015 and- kept in sugarcane crop and were shifting to other place. The persons who surrendered disclosed his name as Himat Ali son of Deedar Ali Rind and further disclosed that they kidnapped the abductee and used to call his relatives for ransom, for deceased he disclosed his name as Ali Murad son of Habibullah Rind and for injured person he disclosed their names as Arz Muhammad son of Hamao and Sulleman son of Habibullah Rind, with regard to car he disclosed that there are no documents. From Himat All one TT pistol of 30 bore along with magazine 4 live bullets and 4 notes of 100/- were recovere d and from Arz Muhammad one TT pisto l of 30 bore with magazine 2 live bullets one note of Rs. 500/- and from Sulleman Rind one TT pistol of .30 bore along with magazine 3 live bullets one note of Rs. 1000/- and one KK along with magazine and 5 live bullets two notes of Rs. 100/- and NIC was recovered from deceased Ali Murad Rind. Such mashirnama was prepared. 6. Police also registered cases under Section 23(i)(a) Sindh Arms Act, 2013 against arrested accused and all five cases were investigated by Inspector Abdul Sattar Gurgage who after completing investigation submitted challans
---
## Page 3
before Anti-T errorism Court Mirpurkhas and on application of ADPP all the cases were amalgamated and tried. 7. After completing necessary formalities trial court framed a common charge on 18.12.2015 at Ex.18 to which accused pleaded not guilty and claimed to be tried. Their pleas were recorded by the trial court as Ex.19 to 21. Prosecution in order to prove it's case examined complainant Muhammad Arab as P.W-1 at Ex. 23, Haji Noor Muhammad as P.W-2 at Ex.27, Muhammad Ramzan as P.W-3 at Ex.30, Manzoor Ahmed as P.W-4 at Ex: 32, Fateh Muhammad P.W-5 at Ex.36, Umed Ali as P.W-6 at Ex.39, Akbar Khan as P.W-7 at Ex.43, SIP Nizamuddin as P.W-8 at Ex. 48, Muhammad Jurial as P.W-9 at Ex.58, Muhammad Moosa as P.W-10 Ex.60, Abdul Sattar as P.W-11 at Ex.65, thereafter ADPP filed statement on 21.04.2016 and closed the side of prosecution at Ex.77. Accused were examined under section 342, Cr .P.C. at Exs. 78, 79 and 80 respectively . 8. After hearing learned defense counsel and ADPP learned trial court convicted the appellants as stated above, hence the instant appeals. 9. Learned counsel for appellants contended that appellants are innocent have been implicated due to enmity; that there is delay of 12 days in registration of FIR which has not been explained by complainant party; that even no roznamcha entry about the abduction was made at police station; that names of appellants are not mentioned in FIR nor description has been given by complainant party in FIR No. 56 of 2015 ; that after arrest of appellants, identification parade was not held before Magistrate; that during evidence CD of voice recording of abductors was not produced before the trial court; that fake encounter is shown by the police; that no police official received injury in the alleged encounter; that injuries to appellants on their knee during the encounter suggest false implication; that MLC was managed by police; that doctor has not disclosed the range of fire received by appellants; that witnesses produced by the prosecution are interested who have given contradictor y evidence; that identification of appellants in court during evidence has no value as witnesses had seen them prior to recording of evidence; that weapons were foisted upon the appellan ts; that prosecution failed to establish case against appellants beyond a shadow of reasonable doubt. Learned counsel relied upon the cases of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), Mohammad Hayat and 3 others v. The State (2018 PCr.LJ Note 61), Riaz v. The State (2018 YLR 2059 ), Abdul Jabbar and others v. The State (2017 PCr. LJ 160), Muhammad Dawood and 8 others v. The State (2015 PCr.LJ 316), Muhammad Saleem v. The State (2014 YLR 794) and Bashir Ahmed v. The State (2015 MLD 313), and prayed for setting aside the judgme nt of conviction and acquittal of appellants, 10. Learned APG contended that delay in cases of abduction for ransom is natura l and always complainant party remain under threat of life of their relativ e, waiting for safe recovery as has been done in the present case. She further submitted ,that identification parade before Magistrate is not necessary identification at the time of evidence before the trial court is sufficient. The person identifying culprits who remained in their custody for a considerable period would not make any mistake in identification of the accused during trial. No enmity is suggested for false implication: abductee was recovered from the possession of appellants during police encounter; that witnesses had fully supported the case of prosecution : weapons used in commission of offence also recovered from the appellants. Lastly she contended that prosecution has proved its case beyond any shadow of reasonable doubt by producing trustworthy and confidence inspiring evidence appellants were rightly convicted by the trial court hence she prayed for dismissal of their appeals. She relied upon the cases of Amir Ali and 2 others v. The State (2017 PCr.LJ 1451) and Muhammad Rasool v . The State (2015 PCr .LJ 391). 11. We have heard the arguments of learned counsel of the parties and pursued the material available on record. 12. Prosecution in order to prove the case against the appellant has examined complainant Muhammad Arab as PW- I at Ex: 23 who deposed that on 05.09.2015 at 6:00 a.m. he along with his paternal uncle Haji Noor Muhammad and cousin Muhammad Ramzan left their houses for Cattle Piri at Umerkot, when they reached at Haji Noor Muhammad Rasti situated at Mirpurkhas-Umerkot road at 6-30 a.m., they saw a red colour Margalla Car No: AAB- 653 in which 5 persons were sitting , out of which four who were armed_ with weapons got down from the car and on point of weapons abducted his paternal uncle Haji Noor Muhammad and went towards Umerkot. He informed such facts to Sirajuddin son of abductee. He further deposed that on 07-09-2015 he received a call on Mobile No.0313-3515848 of P.W Sirajuddin from Cell No. 0307-0325035 of abductee Haji Noor Muhammad
---
## Page 4
whereby the abductors demanded Rs. one crore and fifty lacs as ransom for the release of Haji Noor Muhammad failing which they will receive his dead body . He further deposed that from 7th to 14th September . 2015 he repeatedly received message of demanding ransom from said cell number and lastly abductors reduced amount of ransom to rupees one crore. On 17.09.2015 he went to Police Station Taluka Mirpurkhas and lodged FIR No. 56 of 2015 for abduction of Haji Noor Muhammad. He deposed that on 17.09.2105 in the evening Haji Moor Muhammad came at home and informed them that during encounter between police and abductors he was got freed by the police, abductee further informed that during encounter police arrested two accused namely Arz Muhammad and Sulleman in injured condition. third accuse d Himat Ali surrendered before police and 4th one All Murad was killed in encounter while two accused made their escape good. Abductee further disclosed that accused Himat Ali, Sulleman, Dilawar alias Mir Buledi and All Murad after kidnapping took him to the house of absconder accused Khameso Khan Katohar where he was detained for about 13 days. Abductee further informed him that on the day of encounter accused Arz Muhammad, Himat Ali, Sulleman and Ali Murad were shifting him in same Margala Car No. AAB-653 to another place but during encounter at Dah-Dari Mori police got freed him from the clutches of accused persons. He stated that on the next day i.e. 18.9.2015 between 11:00 a.m. and 12:00 noon he along with abductee Haji Noor Muhammad and PW Muhammad Ramzan went to Civil Hospital Mirpurkhas where he identified accused Arz Muhammad and Sulleman in injured condition while dead body of accused All Murad to be the same person who had abducted Haji Noor Muhammad; thereafter they went to Police Station Taluka Mirpurkhas where they also identified accused Himat Ali. He further deposed that he and other P.Ws along with abductee were produced before the Magistrate where their statements under section 164, Cr.P.C. were recorded. Complainant was cross-examined by defence counsel but could not shatter his evidence. 13. P.W-3 Muhammad Ramzan was exam ined at Ex.30. He also deposed on same line as deposed by complainant Muhammad Arab. 14. P.W-2 Haji Noor Muhammad, who is the abductee and is most important witness of the incident was examined at Ex.27. He during his evidence deposed that the incident took place on 5.9.2015. On the day of incident he along with P.W-1 Muhammad Arab and Muham mad Ramzan left their houses for Cattle Piri at Umerkot and reached at 'Name Board' of village called after his name as "Haji Noon Muhammad Mahar" situated at Mirpurkhas-Umerkot Road at 6:30 a.m. and saw one Red Colour Margala Car No. AAB-653 coming from Mirpurkhas side and stopped there. He saw five persons with open faces sitting in the car, out of them four who were armed with weapons got down and abducted him. They all took him to village Khameso Katohar situated towards Umerkot side where they detained him in the house of accused Arz Muhammad and Khameso both by caste Katohar for about 12-13 days where 6-7 persons guarded him. During his confinement he heard them calling each other with names of Arz Muhammad, Himat Ali, Sulleman, Mir alias Dilawar , Khamiso and Ali Murad. Abductee further deposed that on 17.9.2015 they took him in the said car for shifting to another place and when at about 2:00 PM they reached at Dah-Dari Mori an encounter took place between them and police party . .During encounter accused Ali Murad was killed while accused Himat Ali along with his weapon surrendered, whereas accused Arz Muhammad and Sulleman were apprehended in injured condition, the other accused made their escape good. Police got him freed and at about 7:00 to 7:30 p.m., he reached his home. He further deposed that on the same day i.e. 17:9.2015 at about 9:00 p.m., he took P.W-1 Complainant Muhammad Arab and P.W Muhammad Ramzan to Civil Hospital Mirpurkhas where they identified accused Arz Muhammad and Sulleman and also the dead body of deceased accused Ali Murad to be the same persons who had abducted him. After that, they went to Police Station Taluka Mirpurkhas where they identified the accused Himat Ali to be the same person who at the time of incident and thereafter had driven the Car No. AAB-653. He further deposed that he along with above named P.Ws appeared before 1st Judicial Magistrate Mirpurkhas for recording their Statements under section 164, Cr.P.C. Though this important witness was cross-examined by defence counsel but except minor discrepancies nothing was brought on record which could cause dent in his evidence. 15. P.W-4 Manzoor Ahmed (mashir) was examined at Ex.32. He deposed that on 20.9.2015 at about 1:40 p.m. he along with his cast fellow Mumtaz reached at 'Name Board of village Haji Noor Muhammad Mahar situated at Mirpurkhas-Umerkot road where compla inant Muhammad Arab came along with police officials and in their
---
## Page 5
presence pointed out the place from where Haji Noor Muhammad was said to be abducted. Police prepared memo of inspection of place of occurrence in his presence and co-mashir Mumtaz. He further deposed that on 13.10.2015 at about 12 noon Inspector Abdul Sattar Gurgage called him and co-mashir Mumtaz on mobile phone to come at Police Station Taluka Mirpurkhas. They both left their houses and reached at Jarwari channel where he saw police mobile van wherein accused Himat Ali was sitting. The said police officer mad them to sit also in the police mobile van and brought at Dah-Dari Mori and from bushes accused Himat Ali produced a mobile phone containing a SIM. The said police officer took the mobile phone into police possession and sealed the same in a parcel, such memo was also prepared. He identified accused Himat Ali in court to be the same so also case property viz. black colour Nokia mobile phone. He too was cross examined at length but defence counsel could not shatter his evidence. 16. P.W-06 P.C. Umed Ali (mashir) was examined at Ex.39. He deposed that he was posted at Police Station Mirpurkhas Old. On 18.9.2015 at 7:30 a.m. he along with Investigating Officer. Inspector Abdul Sattar and police constables Abdul Majeed left police station for Civil Hospital Mirpurkhas and reached at 8:00 a.m. where he saw two persons namely Arz Muhammad and Sulleman who were admitted as indoor patient. Investigating Officer arrested both of them in main case bearing Crime No. 56 of 2015 Police Station Taluka under sections 365-A etc., P.P.C. and 6/7, A.T.A., 1997. Such memo of arrest was prepared in his presence and PC Abdul Majeed. He further deposed that on the same day at 12:00 noon ASI Ghulam Hussain of said police station handed over a sealed parcel of blood stained clothes of deceased Ali Murad to Inspector Abdul Sattar . Such mashirnama was also prepared. He further deposed that on 19.9.2015 he along with SHO Abdul Sattar and PC Abdul Majeed left Police Station Mirpur Old in police mobile van driven by HC Mehmood Ali to investigate case bearing Crime No. 55 of 2015 police station Khaan under section 324, P.P.C. read with sections 6/7, A.T.A., 1997, reached at the place of occurrence i.e. Dah-Dari Mori adjacent to Jamrao canal in Deh 81 Taluka Hussain Bux Mari where he saw SIP Nizamuddin Khaskheli SHO, Police Station Taluka Mirpurkhas was already there and on his pointation 1.0 Abdul Sattar inspected the scene of occurrence and secured bloodstained earth of deceased accused Ali Murad. He also secured 25 empties of SMG and 19 empties of .30 bore pistol. He took the same in police possession. The blood stained earth was sealed in separate parcel, while in all 44 empties were sealed in another parcel. Such memo was prepared. He identified accused Arz Muhammad and Sulleman in court so also case property . 17. P.W-7 Akbar Khan Mari mashir and I.0 was examined at Ex. 43. He deposed that on 17.9.2015 he was posted as SHO PS Khaan district Mirpurkhas. On the same day at 8:40 a.m. he received spy information that Haji Noor Muhammad Mahar who was abducted from the jurisdiction of Police Station Taluka Mirpurkhas has kept the kidnappers in sugarcane crop near village Khameso Katohar . He after informing his superiors along with staff vide entry No. 4 at 8:40 a.m. proceeded to the pointed place, other police parties also reached there: During search he found a red colour Margala Car No. AAB-653 came out from the house of Khameso Khan Katohar (abductor accused) and followed the same. He informed SIP Nizamuddin who held Nakabandi at Dah-Dari Mori and stopped the said car, they also reached there. They found five persons who got down from said car. Out of them one was armed with Kalashnikov and three were armed with pistols while 5th was empty-handed. He deposed that accused who were armed with weapons on seeing police party started firing, police also started firing in defence and an encounter continued for about half an hour. One person who was armed with pistols surrendered himself whose name was Himat Ali while three assailants were fallen on the ground. Out of them one who was armed with Kalashnikov was found dead while two were found in injured condition. On enquiry out of two injured persons, one disclosed his name as Sulleman, one pistol of .30 bore was secured from each injured persons. The pistol was also recovered from accused Himat Ali. About the dead body of accused his name was disclosed as Ali Murad by co- accused Sulleman and from the side of deceased Ali Murad they secured a Kalashnikov loaded with 5 live bullets. An empty bag, original CNIC of Ali Murad were also secured. He further deposed that 5th person who on seeing the police party raised cries and disclosed his name as Haji Noor Muhammad Mahar , told the police party that on 5.9.2015 he was abducted by the accused persons from Umerkot road and confined in sugarcane crop near village Khameso Katohar . He further disclosed that accused had demanded ransom from his relatives for his release and on the day (17.9.2015) accused person trying to shift him to another place but he was freed during the encounter by the police. This witness also identified the appellants in court so also property including car and weapons.
---
## Page 6
18. P.W-8 SIP Nizamuddin who is complainant in Special Case No. 19 of 2015 under section 324, P.P.C. and sections 6/7, A.T.A., 1997 and complainant / recovery officer in cases registered against appellant Arz Muhammad, Sulleman and Himat Ali under section 23(1)(a) of Sindh Arms Act, 2013 was exam ined at Ex. 48. He deposed that on 17.9.2015 he was posted as SHO at Police Station Taluka Mirpurkhas. On that day at 12:00 noon Muhammad Arab came at police station and lodged report against unknown persons under sections 365-A, 34, P.P.C. read with sections 6/7, A.T.A., 1997, with regard to abduction of Haji Noor Muhammad Mahar on 5.9.2015 from bus stop of village Haji Noor Muhammad situated at Mirpurkhas-Umerkot road. He further deposed that on the same day at 12:45 p.m. he received a telephone message of SIP Akbar Khan Mari SHO PS Khaan that abductee Haji Noor Muhammad was kept by abductors in sugarcane crop near village Khameso Katohar . He conveyed such information to his superiors and CIA Police Mirpurkhas and then by making entry in daily diary left police station along with his staff and at about 1:45 p.m. reached at Dah-Dari Mori where he was informed by SIP Akbar Khan that abductors took abductee Haji Noor Muhammad in a Red Colour Car No. AA-65 3 and was asked for Nakabandi at that place. He further deposed that at 2:00 p.m. he saw the car coming in high-speed, he stopped it and saw five persons in the car out of which one was armed with Kalashnikov , three with pistols got down from the car while 5th person who was empty-handed also got down from the vehicle who raised his arms and uttered the words in Sindhi "Bachayo-Bachayo" and ran away . He deposed that abductors started firing at police, who too started firing in defence. Such encounter continued for about half an hour. One accused surrendered with pistol who disclosed' his name as Himat Ali. During encounter one accused was killed and Himat Ali disclosed his name as Ali Murad, two accused were also apprehended in injure d condition, they disclosed their names as Arz Muhammad and Sulleman and weapons were also recovered from them. P.W in his deposition further…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.