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Petitioner: MUHAMMAD TARIQ RAZA ATTARI VS Respondent: StateHonorable Justice Naimatullah PhulpotoShahab Sarki and Abdul Rasheed Nizamani
2015 Y L R 1416
[Sindh]
Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ
MUHAMMAD TARIQ RAZA ATTARI---Appellant
versus
The STATE---Respondent
Special Criminal Anti-Terrorism Appeal No. 46 and Confirmation Case No.7 of 2005, decided on 5th March, 2013.
Penal Code (XLV of 1860)---
----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(a)(e)---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-i-amd, kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---No eye-witness account was available in the case, but incriminating conduct and information furnished by accused, leading to recovery of dead body of abductee boy of 6 years old had been proved by overwhelming evidence---Chain of events, dispelled any doubt---No enmity, whatsoever had been alleged by accused with the complainant---Accused being brother-in-law of the complainant, complainant had no motive to falsely implicate accused in murder of his son---Prosecution witness, who had identified accused in the court was an independent witness, his evidence was trustworthy---Other prosecution witness, who was friend of the complainant, had also no motive to falsely implicate accused in the case---Evidence of Investigating Officer was straightforward, and no mala fide against him had been brought on record---No infirmity or defect in his evidence had been pointed out---No reason existed to disbelieve such confidence inspiring evidence---Information furnished by accused to the Investigating Officer, could be used against him under Art.40 of Qanun-e-Shahadat, 1984--- Medical evidence had corroborated ocular account---Prosecution having proved its case against accused beyond any reasonable doubt, accused was rightly convicted and awarded death penalty---Nothing substantial was found in the statement of accused recorded on oath to discredit such confidence inspiring evidence which had rightly been discarded by Trial Court---No mitigating or extenuating circumstances were available to award lesser punishment to accused as offence against accused carried capital punishment---Conviction and sentence awarded to accused, were maintained, in circumstances.
Nazir Shehzad and another v. The State 2009 SCMR 1440 and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 rel.
Shahab Sarki and Abdul Rasheed Nizamani for Appellant.
Khadim Hussain Khoonharo, Deputy Prosecutor General for the State.
Dates of hearing: 7th and 26th February, 2013.
JUDGMENT
NAIMATULLAH PHULPOTO, J.---This judgment will dispose of Special Anti-Terrorism Appeal No.46 of 2005 and Confirmation Case No.07/2005, as they arise out of one and the same judgment dated 21-9-2005, passed by learned Judge, Anti-Terrorism Court-III, Karachi in Special Case No.3/2005 by which the learned Judge had convicted and sentenced the appellant as under:--
(1) Sentenced the accused Muhammad Tariq son of Mushtaq Ahmed under Section 7(e) of Anti-Terrorism Act, 1997 read with section 365-A, P.P.C. and convict him to death sentence. He shall be hanged by neck till he be dead. Sentence of death shall not be executed unless confirmed by the honourable High Court in view of Section 374, Cr.P.C. His moveable and immovable properties to the extent of Rs.100,000 shall also be confiscated to the Government.
(2) Convict him under Section 7(a) of ATA, 1997 read with 302(b), P.P.C. and award him death sentence. He shall be hanged by neck till he be dead. Sentence of death shall not be executed unless confirmed by the honourable High Court in view of Section 374, Cr.P.C. A fine of Rs.100,000 is also imposed on him. In case of non-payment of fine he shall suffer R.I. for 2 years. Amount of fine, if recovered, shall be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C.
(3) Since he has been proceeded under the provisions of ATA, 1997 as such in view of case-law reported in 2004 SCMR 931, 2003 SCMR 95 and 2001 SCMR 416 he is not entitled for any benefit if section 382-B, Cr.P.C.
(4) He is in custody. He is remanded to J.C. to serve the sentence in the light of observation made above.
2. The brief facts giving rise to the present appeal are that complainant Muhammad Raees has stated in the FIR that he runs scrape business shop, situated near Bismillah Staff, Sector 33-A, Korangi, Karachi. On 1-1-2005 at 11:00 a.m. as usual he went from his house to his shop. At about 02:30 p.m. his wife informed him on telephone that his son, namely, Muhammad Siddiq (now deceased), aged about 6 years, had gone to Dry Clean Shop, situated in Sector 33-C, Korangi to collect clothes, from where he did not return back to the home. On such information, complainant rushed to his house where his wife narrated him the same facts. He started search for his son at different places, in the houses of his sisters and relatives but without any success. At the night time, at 07:00 p.m. complainant received a call on his mobile phone No.0320-2048929 from unknown person, who confirmed from him as to whether boy Muhammad Siddiq was his son to which he replied in affirmative whereupon caller demanded from complainant to bring Rs.2,000,000 at bus stop of Korangi 2-1/2 for return of his child. Complainant replied that he was unable to arrange such huge amount. Thereafter the amount was reduced to Rs.1,500,000. Threat was issued to the complainant that in case he reported the matter to the police his son would be done to death. Complainant under the threat of the caller did not report the matter to the police for the time being. However, on 4-1-2005 he went to the police station and lodged the report. It was recorded vide Crime No.01/2005 under sections 365-A/ 302, P.P.C. read with section 7(e) of the Anti-Terrorism Act, 1997, Police Station Korangi (AVCC).
3. Investigation of the case was carried out by Ali Muhammad SIP of AVCC Korangi, Karachi. It is stated that complainant constantly received telephone calls from kidnapper for ransom on 7-1-2005 he received a telephone call from the kidnapper who gave the deadline for payment of ransom to the complainant thereafter it is stated that the complainant informed about the deadline to the police. Police and CPLC officials along with complainant proceeded to the place selected by the kidnapper for payment of the ransom to him but kidnapper did not reach at the specified point. Complainant received another call on mobile phone at same place and it was reported to the police by the complainant and CPLC officials traced the place wherefrom telephone call was made. Police and CPLC officials along with complainant reached the said PCO, situated in Korangi 3-1/2 and saw appellant standing there, police arrested him on pointation of the complainant, who admitted before the police that he had kidnapped minor boy on 1-1-2005 and after 3-4 days of incident he had killed him by way of strangulation and buried his dead body at his house. Appellant pointed out place from where boy was kidnapped by him, he led the police party to his house and on his pointation dead body wrapped in plastic bag was recovered by the police in presence of the mashirs. After usual investigation, challan was submitted against the appellant and case was transferred to the Anti-Terrorism Court-III Karachi, for trial.
4. A formal charge against the appellant was framed at Exh.3 under section 7(e) of the Anti-Terrorism Act, 1997, read with sections 302 and 365, P.P.C. Appellant pleaded not guilty and claimed to be tried. In support of the case, prosecution has examined the following witnesses:--
Sr. #
PW No.
Name
Summary of evidence
1.
PW-1
Complainant Muhammad Raees,
Informed the police that appellant is his brother-in-law, standing at the PCO, acted mushir of arrest and recovery and recovery of dead body of his minor son from the house of appellant lodged FIR, produced it.
2.
PW-2
Tariq Mehmood
Owner of PCO/Mashir of arrest and recovery and mashir of recovery of dead body of complainant's minor son from the house of appellant
3.
PW-3
Suhail Nadeem
Mushir of arrest and recovery and recovery of dead body of complainant's minor son from the house of appellant.
4.
PW-4
Dr. Zafar Siyal
He produced postmortem report
5.
PW-5
Chaudhry Manzoor Ahmad
Mashir of obtaining audio cassette and list of telephone, produced by I.O./P.W.6.
6.
PW-6
Ali Muhammad
Investigating Officer (conducted investigation of the case)
5. The appellant in his statement recorded under section 342, Cr.P.C. denied all the allegations of the prosecution but admitted that he was taken in police custody from PCO. He had denied that he had pointed out place of burial of dead body of the boy in his house. Telephonic talk for demand of ransom from the complainant has also been denied. Appellant has further raised plea in his statement that movie was prepared by the police falsely and pleaded innocence. The appellant has examined himself on oath in disproof of prosecution allegations.
6. After considering the evidence available on record the trial court convicted the appellant as mentioned above under the impugned judgment. The appellant was dissatisfied with the said judgment, therefore, he has preferred the present appeal.
7. We have heard Messrs Shahab Sarki and Abdul Rasheed Nizamani, learned advocates for the appellant and Mr. Khadim Hussain Khooharo, learned Deputy Prosecutor General Sindh for the State, perused the record of the case and examined the case-law involved in the matter.
8. Mr. Shahab Sarki, learned counsel for the appellant has argued that prosecution story is unnatural and unbelievable, incident was un-witnessed, prosecution case is based upon circumstantial evidence, appellant was tortured by the police during investigation. He never led the police to the place from where, according to prosecution, minor boy was kidnapped for ransom. Learned counsel for the appellant also argued that place of burial, situated in the house of the appellant, was also not pointed out by the appellant. Mr. Sarki contended that provisions of section 103, Cr.P.C. have violated, mashirs of the pointation of the place of dead body of the deceased were not examined by the prosecution at trial. applicant/accused had no motive for commission of offence, there are mitigating circumstances in the case. In case conviction is maintained, death sentence may be converted into the life imprisonment.
9. On the other hand, Mr. Khadim Hussain Khooharo, learned D.P.G. has argued that the appellant led the police party to the place from where he had kidnapped the minor boy for ransom and he was done to death by way of strangulation. Place of burial was the house of the appellant and he pointed out the said place. Complainant, who is brother-in-law of the appellant, had no enmity or motive to falsely implicate his close relative in this case. Death of the deceased by way of strangulation has been corroborated by medical evidence. It is further submitted that there was huge evidence on the record against the appellant. Lastly, it is submitted that the trial Court has rightly appreciated the evidence and recorded conviction in this case.
10. We have given our due consideration to the arguments, advanced by the learned counsel for the parties and find that the case of the prosecution is based upon the following pieces of evidence:--
(a) Testimony furnished by complainant Muhammad Raees with regard to the telephonic talk of the appellant regarding demand of ransom.
(b) Pointation of place from where minor boy was kidnapped for ransom by appellant.
(c) Pointation of the place of house where appellant had buried the boy after killing by way of strangulation.
(d) Medical Evidence.
(e) Motive.
11. PW-4 Dr. Zafar Siyal , M.L.O., J.P.M.C., has deposed that on 8-1-2005 at 10:30 a.m. through SIP Ali Mohammad of Police Station Korangi he received decomposed body of a minor boy Muhammad Siddiq son of Muhammad Raees, aged about 6 years. He started postmortem at 11:30 a.m. and completed at 12:30 p.m. On external examination of the dead body of deceased MLO found the following injuries:
(1) Ligature mark seen at anterior aspect of bilateral aspect of the neck gruize mark seen on it.
(2) Both eye balls protruded outside and tongue was between teeth.
On internal examination of the body the M.L.O. found the following damages:
HEAD: All skull bones found intact. No evidence of bruise or swelling seen on head.
NECK: On opening neck in layer blood clot seen beneath the skin. All vascular and avascular structure found damaged.
THORAX: On opening the thoraxic cavity no free fluid or blood seen. Foul smell positive both lungs found soft inconsistency and congested. Heart found intact.
ABDOMEN: On opening abdominal cavity no free fluid seen, or any blood seen in abdominal cavity. Stomach contains indigestible digestic juices. All visceras found congested and soft in consistency.
In the opinion of the doctor the cause of death of the boy was cardio respiratory failure due to asphyxia resulting from constriction of neck.
12. Evidence of the medical officer goes unchallenged and un-rebutted. We have, therefore, no hesitation to hold that the deceased boy died his unnatural death as described by the medical officer.
13. PW-1 complainant Muhammad Raees in his evidence has categorically stated that he is running a junk (kabari) shop at Korangi 2-1/2 near Bismillah Bus Stop, Karachi. On 1-1-2005 at about 11:00 a.m. as usual he went to his junk shop, at about 02.00 or 2.15 p.m. he received telephone call from his wife, who informed him that his son Muhammad Siddiq went to bring clothes from Dry Clean Shop but he did not return. On such information, he rushed to his house and his wife narrated him the facts. He started search for his son in the vicinity but did not succeed to trace him out. On hearing of news of missing of complainant's son, his sisters and relatives visited his house. At about 7.30 or 7.45 p.m. he received a telephone call on his mobile phone No.0320-3048929 and the caller confirmed from him as to whether Siddiq was his son, to which he replied in affirmative, whereupon caller asked the complainant that in case, if he wanted his son, he would pay him ransom money of Rs.20 lacs for release of his son. Complainant showed his paucity for arrangement of such huge amount whereupon caller curtailed his demand to Rs.15 lacs and asked him to bring the said ransom money of Rs.15 lacs beneath the signboard of motorcycle installed at Korangi 2-1/2. The said caller had threatened the complainant that in case if he informed the matter to police his son would be killed. Complainant further stated that after 3/4 days has received calls constantly from the said caller who reiterated his demand of payment of ransom. On 4-1-2005 at 01.00 or 01.15 p.m. complainant went to Police Station and informed the matter to police. Police had recorded the FIR complainant as well as police continued the search of his son. On 7-1-2005 at about 09.30 p.m. complainant received telephone call from the kidnapper who put deadline for payment of ransom money to him by 11.00 p.m. of the same night and had also threatened that in case the ransom money is not brought beneath the signboard of motorcycle at Korangi 2-1/2, he would kill his son. At the time of receipt of said telephone call on 7-1-2005, some police officials were also with the complainant, they were searching his son, he informed about the said call to those police officials who were with him, he had also informed about the said deadline of the kidnapper to CPLC officials and AVCC officials. At about 11.00 p.m. complainant as well as police and CPLC officials had gone to the place which was pointed out to him by the said kidnapper beneath the signboard of motorcycle Korangi 2-1/2 when they were present beneath the signboard of motorcycle, he received telephone call from the kidnapper who confirmed from him as to whether he has brought ransom money, to which he had replied in affirmative. Meanwhile, CPLC officials noted the number of the telephone from where the call was dialed. After waiting there for about 20 minutes, no one came there. The CPLC officials had traced out the said telephone number which was of PCO and it's number was 5056626. Thereafter complainant, police party and CPLC officials went in search of the said PCO and at about 12.00 midnight complainant, police as well as CPLC officials traced out the said PCO and when they all reached there, complainant saw that his brother-in-law (Bahnoi) present there in that PCO. He informed to the police that Tariq is his brother-in-law. Police and CPLC officials apprehended the appellant and they started interrogation from him. Complainant has stated that PW Sohail Nadeem is his friend who was also with him at that time. Police had conducted the personal search of the appellant at the time of his arrest and had secured his CNIC as well as cash of Rs.200. The police and CPLC officials continued the interrogation with the appellant in the ground situated near the PCO shop for about 1-1/2 hour and the appellant confessed before the police that he had killed the complainant's son after his kidnapping and had buried him in his house. After such confession of the accused, police had arrested him and had prepared mashirnama of his arrest, complainant and PWs Khalid Mahmood and Sohail Nadeem acted as mashirs. Appellant led police and complainant at his house and took out the key of the house from a hole near the outer door of his house and opened the lock of his house and brought them in his house and pointed out the place where, according to him, he had buried the corpse of complainant's son. Meanwhile, movie maker had also reached there arranged by police. On the pointation of the appellant said place was dug by the police officials. Before excavation of the said place, the appellant had informed that he had wrapped the corpse of the boy in plastic bag and he had buried in room. By digging earth dead body of boy was recovered on pointation of appellant. Police had also prepared such mashirnama of recovery of corpse of his son, complainant, PW Ahmed Chenoy and PW Nadeem Dane Wala acted as mashirs. The appellant had already disclosed to police that he had already killed complainant's son on 4-1-2005, the police had inspected the corpse under section 174, Cr.P.C. and had prepared such inquest report at the spot and the complainant also acted as mashir. After completion of all the formalities, police officials and complainant along with dead body proceeded from there and the corpse was taken in Edhi ambulance. While the police party was taking the corpse to hospital, complainant's house came in the way and police had enquired from the appellant as to from where, he had kidnapped the boy, the appellant/accused had pointed out the place of kidnapping, which was popularly known as Bhai Chowk, which is situated in front of complainant's house. Police had therefore prepared mashirnama of pointation of place of kidnapping of Muhammad Siddiq and complainant acted as mashir. Dead body after completion of formalities was returned to complainant. In cross-examination the complainant has denied the suggestion that the appellant had not kidnapped his son for ransom. He also denied the suggestion that the accused is innocent in this case.
14. PW-2 Tariq Mehmood stated that he runs general store and PCO in Korangi 3-1/2 Karachi. On 7-1-2005 at 11:00 p.m. a person came in his shop and gave him Mobile No.0320-2048929 and desired to talk on the said number. After dialing the said number PW Tariq Mehmood became busy in his work and appellant was talking on the phone and paid him Rs.10 at 11:00 midnight. Same person again came to his PCO shop, at that time another person was busy on the phone, he waited for some time in the shop meanwhile the police party came in the shop. One private person was also with the police and disclosed that the appellant was his brother-in-law. Police apprehended the appellant, conducted his personal search and recovered his CNIC and cash of Rs.200 and prepared mashirnama of arrest and recovery in presence of mashirs. He was made as mashir. Appellant was taken by the police to an open plot in front of the shop where appellant admitted before the police that on 4-1-2005 he had killed a boy by way of strangulation and appellant took the police to the place where dead body was buried by him. Such movie was prepared by the police and mashirnama of the recovery of the dead body was prepared and he acted as mashir. He identified the appellant in the Court and stated that he was the same person, who came to his PCO and made calls and was arrested by the police. In the cross-examination he has denied the suggestion that he was deposing falsely against the appellant at the instance of the police.
15. PW-3 Sohail Nadeem has stated that complainant is known to him since last 3 to 4 years. The son of the complainant was kidnapped and complainant was receiving certain calls. On 7-1-2005 after Asr prayers he went to the house of the complainant for his consolation and remained there. At about 10:00 p.m. complainant received telephone call, who informed the police about the said call. Complainant was called by the appellant to reach at Korangi 2-1/2 near signboard of motorcycle. Police was also informed by the complainant. On arrival of the police complainant sit in the private car of the police. PW Sohail Nadeem also proceeded on his motorcycle. Police and the complainant were in a car at that time. All of them waited at signboard for 15 to 20 minutes but no one came there. In the meanwhile, complainant received a telephonic call, it was noted down by the police officials thereafter police party proceeded to the PCO shop where appellant Tariq was present. He was identified by the complainant to be his brother-in-law. Police apprehended the appellant Tariq from PCO. Mashirnama of arrest was prepared, he acted as mashir. On his personal search CNIC and cash of Rs.200 was recovered. Police interrogated the appellant in a ground in front of the PCO shop. Appellant admitted before the police that on 4-1-2005 he had killed a boy by way of strangulation and buried the dead body in his house. Appellant disclosed to the police that he had killed the boy on 3rd or 4th January, 2005. He has further deposed that the appellant led the police party to his house. He also followed the police party on his motorcycle. House of the appellant was locked, appellant took out a key kept by him on the side of the said door of the house and opened the door and brought the police inside the house. There were two rooms in the house. There was a room situated on the right side. Appellant pointed out that he had buried the dead body of the boy in the room. Police called a moviemaker. By digging the earth dead body of a boy wrapped in a plastic bag was recovered. Complainant identified the dead body of his son. Video of the incident was prepared. Police brought the dead body in the Ambulance for postmortem examination. In the cross-examination he had denied the suggestion that he had deposed falsely against the appellant due to his friendship with the complainant.
16. PW-5 Chaudhry Manzoor Ahmad has stated that on 12-1-2005 at 7:00 p.m. he accompanied Ali Muhammad SIP and H.C. Aqeel Ahmad and went to the office of CPLC where Ali Muhammad SIP has received a list of telephone numbers as well as an audio cassette and prepared list and prepared mashirnama. In the cross-examination he has denied the suggestion that he has signed on the list of telephone numbers and audio cassette articles at the instance of SIP Ali Muhammad.
17. PW-6 Ali Muhammad, I.O., has deposed that on 4-1-2005 investigation of this case was entrusted to him. On 7-1-2005, complainant informed him on telephone that he has received a call from kidnapper, after receipt of such information from the complainant, I.O. along with Khurram Waris, DSP of AVCC and CPLC officials reached the house of the complainant at 08:30 p.m. Complainant received another call at 09:25 p.m. and he was asked by the kidnapper to bring ransom money at 11:00 p.m. beneath the signboard of motorcycle at Korangi 2-1/2. After receipt of such telephone call police officials along with complainant went to signboard of motorcycle at Korangi 2-1/2 At 11:00 p.m. complainant received another call, the CPLC officials took the mobile phone from him and noted the number of the telephone from where the call was made, it was a PCO number 5056626. Thereafter, investigating officer along with complainant and CPLC officials went in search of the said PCO and reached the PCO shop, we saw the appellant standing at the PCO shop. Complainant informed the police that he is his brother-in-law. PCO owner informed the police that said person had already made a call from PCO at 11:00 p.m. Appellant was arrested on suspicion in presence of the complainant and PW…
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