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Petitioner: AJAB alia RAJAB and another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Sarmad Jalal Osmany Title: AJAB alia RAJAB and another vs THE STATE Case No.: Special Anti-Terrorism Appeal No.64 and Confirmation Case No.9 of 2001 Date of Judgment:2003-07-16 Reported As: 2004 MLD 180 Result: Sentence reduced
JUDGMENT
JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special Anti-Terrorism Appeal No.64 of 2001 and Confirmation Case No.9 of 2001', as they arise out of one and same judgment. 2. The present appeal has been directed against.The judgment dated 10-9-2001, passed by Anti- Terrorism Court No.III, Karachi, in Special Cases No.20 of 2000, 21 of 2000 and 22 of 2000, by whin the learned Judge had convicted and sentenced the appellants as under:-- (a) Convicted them under section 365-A, P.P.C. And sentenced each of them to death. (b) Convicted them under section 392, P.P.C. And sentenced each of them to suffer R.I. For 10 years and to pay a fine of Rs.50,000. In case of default thereof to suffer R.I.2 years each. (c) Convicted them under section 342, P.P.C. And sentenced each of them to suffer R.I. For two years and to pay a fine of Rs.10,000. In default thereof to suffer R.I. For one year each; (d) Convicted them under section 7-B of Anti-Terrorism Act, 1997 (hereinafter referred to as the "Act, 1997") and sentenced each of them to suffer R.I. For years and to pay a fine of Rs.50,000. In default thereof to suffer R.I. For two yearsseach. (e) Convicted them under section 13(e) of the Pakistan Arms. Ordinance, 1965 (hereinafter would be referred to as the "Ordinance 1965") and sentenced each of them to suffer R.I. For seven years and to pay a fine of Rs.50,000. In default thereof, to suffer R.I. For two years each. (f) They were given benefit of section 382-B, Cr.P.C. 3. The facts giving rise to the present appeals are that complainantSyed Hussain Kazmi had a cloth shop situated in Muhammad Ali Housing Society, near Masjid-e-Bilal, Karachi. The abductee P.W.5 Syed Munsif Raza was his cousin. On '22-1-2000 at about 7 or 7-15 p.m. The abductee P.W.5 went to the shop of the complainant to purchase some pieces of cloths for his suit. They were taking tea
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when two persons entered into the shop. They wanted to see the cloths but their behavior was suspicious, therefore, P.W.5 showed apprehension regarding the said persons. The complainant then went to those persons but they did not purchase any cloth. The said persons went out of the shop and drove away on their motorcycle. After purchasing three suit pieces. P.W.5 went to his Jeep bearing No.BC-4030 parked outside the shop. The salesman namely Sardar went with him to put the pieces of cloths in his Jeep. Just thereafter, the complainant and another salesmanKhalid Mehmood heard commotion from outside the shop; therefore, they went there and saw the salesman Sardar was being beaten by a person. The salesman Khalid Mehmood tried to intervene but the companion of the said person, who was beating the salesman Sardar, kicked salesman Khalid Mehmood on his abdomen and gave fist blows to the complainant. The complainant tried to intervene and grappled with the said culprit but he rescued himself and then the said person went and sat with the P.W.5 in the Jeep who was made to sit on pistol point by other culprit. Thereafter, another culprit took out his pistol and pointed it towards them, on which the complainant told them to release P.W.5 Syed Munsif Raza and take away whatever they wanted to but they told him that P.W.5 will be released after verifying that the vehicle had no secret switch. They had also threatened the complainant not to inform the police; otherwise P.W.5 would be killed. Thereafter the culprits took away P.W.5 in his Jeep. 4. The complainant went to his shop from there he rang Police Emergency 15. A Police Mobile Van of Tipu Sultan Police Station was seen passing from there, which was got stopped, in which SIP Iftikhar Ahmed was present. The complainant narrated the incident to him, thereafter, SIP lftikhar Ahmed went in the direction where the culprits had taken the Jeep. The complainant then informed the family members of P.W.S. They waited for the return of P.W.5 but he did not return, therefore, on 24- 1-2000, the complainant went to the police station and lodged the report at about 8, or 8-30 p.m., which was recorded by the police. 5. Thereafter, the police visited the Vardat which was shown to them by the complainant where the police prepared Mashirnama of Vardat, on 3rd February, 2000. P.W.5 was recovered. On 8-2-2000, the complainant received a notice to appear before the Court of Magistrate on 9-2-2000 for identifying the culprits, therefore, he went there. The Magistrate showed him a line of 13 or 14 persons from which complainant identified the appellant Nazar Muhammad, to be the culprits, who visited his shop. Again the Magistrate called him to identify another culprit and the complainant picked up the appellant Ajab alias Rajab, to be the person who abducted the P.W.5 and was driving the Jeep of the abductee. 6. During the investigation the telephone of the house of the complainant was kept under observation when on 3-2-2000 the police received information from the inmates of the house of the abductee that they were receiving telephone calls for obtaining final reply of payment of ransom amount and the culprits told them that they would call them again at about 8 or 8-30 a.m. In pursuance of the said information the telephone number, from which the culprits were making calls, was traced, this was found to be made from a PCO. Old D.C. Office, Habib Bank Chowrangi, SITE Karachi. The police arranged a surveillance of the said place through police officers, who were in plain clothes and other police officers when ultimately at about 8-30 a.m. Two persons (the present appellants) came at the public telephone booth, who were apprehended. They were brought to the police station. During the interrogation they disclosed the place of concealment of abductee. Thereafter, both the appellants led the police party and Mashirs to a cave in a mountaineous area from where the abductee was recovered. The appellants were produced before the Magistrate for identification test, where the prosecution witnesses identified both the appellants. Both the appellants also disclosed the place where they snatched Jeep was parked. They took the police to KMC Ground, Muhammad Ali Society, from where the Jeep was secured on the pointation of both
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S.NO. P.W.NO. NAMES SUMMARY OF EVIDENCE 1. P.W.1 ASIP Muhammad MunirMushir of arrest of appellant, recovery of telecard, rough sketch, recovery of abductee. 2. P.W.2 Muhammad Ayub Bhatti, J-M.Identification test, confession of appellant Nazar Muhammad and recorded 164, Cr.P.C. statements. 3. P.W.3 Syed Hussain Kazmi Complainant picked up the appellant in identification test. 4. P.W.4 Syed Irtiza Hussain Corroborative witness. 5. P.W.5 Syed Munsif Raza Victim, Mashir of recovery and place of recovery. 6. P.W.6 Abdul Rasheed Mashir of recovery of audio cassette, produced by P.W.4, car, pistols at the pointation of appellant Ajab alias Rajah. 7. P.W.7 Iftikhar Ahmed Investigating Officerthe appellants. The Jeep was covered with a cloth and from the Jeep both the appellants separately produced the weapons which they used in the commission of this crime. The police secured all these articles and prepared the Mashirnama. Audio cassette in which the conversation of the complainant and culprits were recorded was also produced before the Police which they had secured. The appellant Nazar Muhammad was produced before a Magistrate for recording his judicial confession where the Magistrate recorded the same. After completing the investigation the appellants were challaned before the Administrative Judge, Anti-Terrorism Court, Karachi, from where the cases were assigned to Anti-Terrorism Court No.III, Karachi, for trial. All the above mentioned cases were amalgamated with each other and tried together. 7. On 27-3-2000 a charge under section 365-A, 392, 342, 34,P.P.C. Read with section 7-B of Act, 1997 and section 13(e) of Ordinance, 1965, was framed against the appellants but they pleaded not guilty. In support of the case the prosecution examined following seven witnesses:--
9. The appellants in their statements, recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. Appellant Nazar Muhammad, in his further statement, stated that he has been involved in this case falsely and produced a Photostat copy of daily Newspaper Insaaf dated 4-2-2000, alleging that he and co-accused were reported to have been arrested and produced before the CPLC whereas the appellants Ajab alias Rajab took the plea that he was falsely involved in the case. The appellants did not examine themselves on oath but examined D.W.1 Aamir Raza, Manager, daily Insaaf Times. After seeing the photo copy of the newspaper Exh.62, produced by appellant Nazar Muhammad, the D.W. Stated that the newspaper was issued from his office which contained the photographs of both the appellants. In the cross- examination he admitted that exhibit 62 contained two contradictory news with regard to the
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recovery of P.W.5 and that both the news reports were received from the Reports which were published in verbatim. 10. After considering the material available on the record, the trial Court convicted the appellants as mentioned above under the impugned judgment. The appellants, were dissatisfied with the said judgment, therefore, they have preferred the present appeals. 11. We have heard the Advocate for the appellant, A.A.-G. For the State, perused the record of this case and examined the law involved in the matter. 12. The learned Advocate for the appellants has argued that the prosecution case is based upon the identification test of the appellants through the P.Ws. That the said identification test was not held in accordance with law as no role was assigned to the appellants' by the witnesses at the time of identification test and has relied upon the cases of Khalid Mehmood v. State (2000 PCr.LJ 1036), on the proposition that identification test is necessary when the witnesses had a momentary glance: Khadim Hussain v. State (1985 SCMR 721). He has further stated that there is delay of eight days in recording the confessional statement of the appellant Nazar Muhammad; that it was self- exculpatory confession. He has relied upon the case of Jehandad v. State (PLD 1994 Peshawar 279), on the proposition that failure to comply with section 364, Cr.P.C. Is not curable under section 533, Cr.P.C. On the proposition that retracted confession is seldom made sole basis of conviction unless some corroborative evidence is led, he has relied uponthe cases of Javed Iqbal v. State (PLD 1975 Peshawar 230) and Dhani Bux v. State (1974 SMR 271). He has also relied upon Said Anwar v. State (PLD 1977 Peshawar 64) on the proposition that confession recorded after seven days loses its evidentiary value; that the confession was recorded after giving oath to the appellant therefore, it cannot be relied upon. A reference has been invited to a case of Gulab Khan v. State (PLD 1971 Karachi 299). He has further argued that the prosecution has based their case on the joint recovery of abductee and Jeep of abductee on the pointation of both the appellants which cannot be used against any of the appellants. He has relied upon the cases of Amir Ali v. State (PLD 1960 (W.P.) Karachi 753), on the proposition that two accused pointing out a place from where the dead body of the deceased was exhumed without there being any evidence to indicate as to which of the two persons pointed out the said place would have no evidentiary value against any of the accused, who have been jointly concerned in pointing out that place. He has also relied on the cases of Faqira v. Emperor (AIR 1929 Lahore 661), Rafiquddin Ahmed v. Emperor (AIR 1935 Calcutta 184). Khalas Khan v. State (1975 PCr.LJ 172), Rekatulla v. State PLD 162 Dacca 261, and Abdul Ghani v. State (1976 PCr.LJ 1462), on the same proposition. He has further argued that the prosecution has failed, to prove the demand of ransom amount from the appellant Nazar Muhammad; and that the conviction under section 392, P.P.C.; and 7-B of "Act, 1997", cannot be awarded as both the offences are one and same. He has further argued that wrongful confinement punishable under section 342, P.P.C. Is included_ in the offence punishable under section 365-A,. P.P.C., therefore, no separate conviction can be' made under sections 342, Cr.P.C. He has further argued that the case of prosecution has not been proved and that it is highly doubtful, therefore, he requested for acquittal of the appellants. Alternatively he has argued that if the Court finds that the appellants are guilty of the offence then the circumstances of the case are not such where the sentence of death should be awarded, as it is very harsh. 12. On the other hand, the learned A.A.-G. Has stated that the prosecution case is based upon the ocular testimony in the shape of P.W.3 and P.W.5, which is supported and corroborated by the arrest of the appellants, recoveries of abductee and Jeep, identification test of both the appellants through P.W.3, joint pointing of places by the appellants from where the abductee and the Jeep were secured, arrest of the appellants from telephone booth while making telephone call at the house of abductee, recovery of the Telecard from the possession of appellant Ajab alias Rajab and confession of the appellant Nazar Muhammad. He has further argued that under section 365-A,
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P.P.C., the purposes of abduction is to be seen and if it is proved that the purposes was to extract money, as ransom amount then the provisions of section 365-A, P.P.C.,would be attracted; that both the appellants and the absconding accused persons had gone to the shop of the complainant where one of the appellants had abducted P.W.5 alongwith Jeep and then ransom amount was being demanded; that the appellants had complete knowledge about the said facts and the appellant Nazar went with the appellant Ajab alias Rajab to the telephone booth from where the ransom amount was demanded; that the facts of the case clearly shows that first their intention was to snatch the Jeep and then they formed common intention to demand ransom amount as such both the appellants are equally responsible for offence punishable under section 365-A, P.P.C. He has relied upon State v. Nazir Ahmad (1999 SCMR 610), on the proposition that different persons played different role in abduction were found to have common object and were convicted under section 365-A, P.P.C. He has further argued that the evidence of abductee is enough to convict both the appellants; that his evidence is also further supported by other pieces of evidence. He has further stated that the photographs of culprits are usually published in the newspapers which would not affect the identification test; that the identification test can be held through photographs apart from the identification test under the supervision of Magistrate. He has further stated that the role of the appellants at the time of commission of incident has been given by the witnesses during the course of their statements recorded before the trial Court; therefore, it is not fatal to the identification test. On the above proposition he has relied upon Yagoob Khan v. State (PLD 1996 SC 97) on the proposition that if a witness fails to give role of the accused at the time of identification test, he is not precluded from giving evidence in the Court and if such evidence is given then it can be relied upon. On the same proposition he has relied upon the case of Solat Ali Khan v. State (2002 SCMR 820). As regards the confession he has stated that the confession was recorded in accordance with law and no oath was given to the appellant Nazar Muhammad; that merely recording of the statement of the appellant on a printed pro forma of recording of deposition by itself would not prove that the appellant was given oath whereas the Magistrate has 'categorically stated that the confessional statement was recorded without giving any oath. He has relied upon Naseem Akhtar v. State (1999 SCMR 1744), on the proposition that any lapse on the administrative side on the part of the Magistrate recording confession may not be fatal as to the evidentiary value of such confession'provided the Court is satisfied that the lapse on his part has not in any way adversely affected the voluntariness or truthfulness of the confession. He has further argued that the confession of the appellant Nazar is inculpatory which is sufficient to convict him and that the delay in recording of the confession by itself cannot lose the evidentiary value if the confession. On the above proposition he has relied upon the case of Khan Muhammad v. State (1999 SCMR 1818), in which it has been ,fieldthat conviction on the basis of retracted confession alone is sustainable in law, provided the confession had been recorded in accordance with law and that delay in recording the confession by itself cannot render the confession nugatory if otherwise it is brought on record that the same was voluntarily. He has further stated that after the arrest of both the appellants, they disclosed to the police that they would point out the place where the abductee was concealed and the place where the Jeep was parked and in consequence of the said information the abductee and Jeep were secured and that the said pieces of evidence are admissible under Article 40 of Qanun-e-Shahadat Order, 1984. He has relied upon the case Gul Jamal and another v. The State (1980 SCMR 654), Naseem Akhtar v. State (1999 SCMR 1477), Sadaf v. State (2002 $CMR 611). He has further argued that the conviction can be based solely on the evidence of abductee and on this proposition he has relied upon State v. Nazir Ahmed (1999 SCMR 610). As regards the sentence he has stated that offence punishable under section 392, P.P.C. And 7-B of Act, 1997 are one and same, therefore, only one sentence as provided under section 7-B of Act 1997, being a special law can be awarded. As regards sentence under
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section 342. P.P.C., he has stated that said offence is merged in the offence of abduction punishable under section 365-A, P.P.C. Therefore, no separate sentence under section 342, P.P.C. Can be awarded. He has further stated that he has no objection if the death sentence is reduced to imprisonment for life and forfeiture of properties in view of the circumstances of the present case. 13. We have given due consideration to the arguments and find that the case of prosecution is based upon the following pieces of evidence:-- (a) Ocular testimony; (b) Recoveries of abductee and Jeep on the pointation of appellants; (c) Identification test; (d) Confession of appellant Nazar Muhammad. 14. The ocular testimony consists of P.W.3 Syed Hussain Kazmi and P.W.5 Syed Munsif Raza (abductee). The complainant in his deposition has fully supported the prosecution case as disclosed by him in the F.I.R. Which facts are already mentioned. He has fully implicated the appellants by identifying them in the identification test. The abductee P.W.5 has also fully supported the case, implicated the appellants and corroborated P.W.3 by giving the same details of snatching of his Jeep and his abduction from the shop of the complainant on 22-1-2000 at about 7-15 or 7-30 p.m. After giving the said details his evidence- reveals that the appellants Ajab alias Rajab alongwith his companion drove the vehicleand they took him to Super Highway through Dalmia Cement Factory Road. Gulistan-e-Jauhar when the appellants were satisfied that no secret switch was fitted in the Jeep they demanded ransom amount for his release otherwise he would be killed but the exact ransom amount was not told to him. The P.W.5 told them that he was a Government servant and could manage 1 or 2 lacs but they did not agree. He was blindfolded and .Was extended threats not to raise any commotion otherwise he would be killed. On the way, they stopped the vehicle and talked to someone for few minutes and again the vehicle was driven. They travelled about 2 or 3 hours on Katcha road. During that period the vehicle was again stopped but he could not locate the place because he was blindfolded. He was searched and from his search a. Wallet was taken through which the appellant Ajab came to know that P.W.5 was Managing Director of Pakistan Petroleum Limited. They also snatched his mobile telephone and compelled him to contact his family members but he could not do so because the mobile phone was out of the range. Final;y, the Jeep was stopped but he was still blindfolded. They told him that if he was sold to another gang of dacoits then they would get more money; therefore, they threatened to sell him to another gang. Thereafter, he was alighted from the Jeep and was made to sit on a motorcycle between two persons. Then the motorcycle was driven and subsequently it, was stopped during, night time and his blind fold was opened. He found himself in a cave. He was being watched by other persons. During his captivity they told him that. They had contacted his brother but he wanted answer of two questions to be enquired from him namely the date of his marriage and secondly the name of the animal with which his sister-in-law used to be afraid so as to verify that the abductee is with them and he provided the said answers to them. Subsequently on thirteenth day of his confinement a police party arrived there and he was recovered from the cave whereas one of the culprits namely Dillo, who was keeping watch over him ran away. Both the appellants were present with the police at the time of his recovery. The statement Of abductee is further supported and corroborated by P.W.7 Investigating Officer/SIP Iftikhar Ahmed. He has given the same details of recovery of the abductee by disclosing that after the arrest of the appellants they voluntarily led them and Mashirs to the place of concealment of the abductee, which is the same place as disclosed by the abductee and from there abductee was recovered in presence of appellants. The statement of P.W.5 is further supported and corroborated by his brother Syed Irtiza Hussain, who has given the same details as mentioned by the abductee and further added that culprits had demanded ransom amount on telephone and negotiations were going on; that the
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said conversation was recorded on an audio cassette, which was given to the police. He had also asked the culprits to obtain answers of two questions [which has been disclosed by the abducted] from the abductee which they got. As such the ocular testimony is supported and corroborated by the witnesses mentioned above. All these witnesses were subjected to cross-examination but nothing has come on record to discredit their evidence. There is no enmity whatsoever between the appellant and the witnesses nor any enmity has been suggested. The witnesses have no motive or cause to falsely implicate the present appellants. Their evidence is confidence-inspiring and we do not find any reason to disbelieve their statements. 15. The above evidence is further corroborated by the identification test of the appellants before the Magistrate where both the witnesses had identified the present appellants. The witnesses had assigned the role of appellant Nazar Muhammad to be the person who was present in the shop and appellant Ajab alias Rajab to be the person, who was having pistol and was sitting on the driving seat when the vehicle was being driven. The involvement of the present appellants has been further established through the recovery of abductee and Jeep on the pointation of both the appellants. Both the places from where the abductee and the Jeep were recovered were not known to anybody before their discovery. Both the appellants voluntary agreed before the police to show them the places of confinement of abductee and parking of Jeep and then they led them to the said places where the abductee and the Jeep were recovered. From the Jeep both the appellants produced unlicensed pistols from different places of the Jeep which the police had secured. Their evidence is admissible under Article 21 of the Qanun-e-Shahadat Order, 1984, being the conduct of the appellants and under Article 40 of the Qanun-eShahadat Order, being the information supplied by them to the police during their custody. 16. The involvement of the appellants is further established from the confession of the appellant Nazar Muhammad, which was recorded by P.W.2 Magistrate. His evidence reveals that he had performed all the legal formalities for recording the confession. He has categorically…
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