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Petitioner: TANVEER AHMED---Appellant VS Respondent: THE STATE---Respondent
Court Name: Sindh High Court Judge(s): Gulzar Ahmed, Imam Bux Baloch Title: TANVEER AHMED---Appellant vs THE STATE---Respondent Case No.: Spl. A.T. Jail Appeal No, 13 of 2008 and Confirmation Case No, 3 of 2008 Date of Judgment:2010-12-24 Reported As: 2011 P Cr. L J 677 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' IMAM BUX BALOCH, J.---Through this judgment we propose to dispose of this Special Anti- Terrorism Jail Appeal No, 13 of 2008 and Criminal Reference No, 03. of 2008. The appellant through this Appeal has assailed the Judgment dated 13-5-2008, whereby the appellant has been convicted by the judge Anti-Terrorism Court No 1, Karachi under section 7(a) of ATA, 1997 to death and to fine of Rs, 5 Lac and in default of payment thereof to suffer 6 months' R.I. and for offence under section 7(e), ATA-1997, he was also convicted and sentenced to death and forfeiture of his property to the extent of Rs, 5 Iac and in default or in case no property belonging to accused is found he shall suffer 6 Months' R.I more. The benefit of section 382-B was- extended in his favour. The learned Trial Court further directed the appellant to pay Rs,10,00,000 as compensation under section 544-A, Cr.P.C. to the complainant Muhammad Saleem (father of victim girl) within one monther in the alternate it shall be recoverable as an arrears ofland revenue and in default of payment or of recovery as aforesaid the accused shall suffer imprisonment for a period of 6 months more 2. The precise facts of the prosecutioncase are that on 25-2-2007 between 1100-1200 hours when victim baby Iqra aged about 7/8 years after leaving her home for playing in the nearby street proceeded from there and entered into the house of accused Tanveer. Ahmed being, adjacent to the house Of complainant Muhammad Saleem where said accused subjected her to sexual assault and committed rape with her and thereafter assassinated her also by causing injuries on different parts of her body and detached the head of victim from body by means of "Cutter" and then wrapped the head of victim girl in pieces of cloths and remaining body in polythene bags and put them in a Katta (suger bag) and threw the "Head" in Nala (drain) and removed it from there
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and put it at a vacant plot near hill within the area of Mochiko Police Station (Karachi West) and the rest of the body was put near a Push Cart belonging to P.W. Shall run by P. Ws. Javed and Fawad on the side of Dawood Pota road in Saddar area within the jurisdiction of Police Station Preedy Karachi. On 2-3-2007 the appellant demanded ransom of Rs,5 lac from father of victim girl on 'phone, then the complainant lodged Report. 3. After completing the investigation and formalities under section 241-A, Cr.P.C., the appellant was challaned in the court of Special Judge Anti-Terrorism-I. Charge was framed at Exh. No,03- to which the appellant/accused pleaded not guilty and claimed to be tried. 4. During trial the prosecution in support of its case has examined as many as ,14 witnesses. Muhammad Mahtab, P.W.1 at Exh.04, Amanullah as P.W.2 at Exh.05, Falak Sher as P.W.3 at Exh.6. He produced Roznamcha Entery at Exh.6-A, F.I.R. Crime No,74 of 2007 of Police Station Pakistan bazaar at Exh.6-B, Mashirnama of Arrest at Exh.6-C, S.I.P. Mohammad Sharif as P.W.4 at Exh.07, S.I.P. Zahoor as P .W.5 at Exh.08. He produced Entry at Exh.8-A, Mashirnama of Place where Dead body of girl without head was recovered as Exh.8-B, Inquest Report under section 174, Cr.P.C. of Dead body recovered in front of Fida Ali Sweet Shop Bus Stop at Exh.8-C, Letter to Medico-legal Officer Jinnah Hospital at Exh.8-D, copy of the F.I.R. No,97 of 2007 Police Station Preedy at Exh.8-E, Three photographs of Dead body at Exh.8-F, Letter written to Incharge Edhi Center, Sohrab Goth, at Exh.8- G, Entry No,31 dated 25-2-2007 at Exh.8-H. During trial an application for amendment of charge was moved on behalf of the appellant/accused at Exh.9, Order passed on said application as Exh.10. After granting application an amended Charge was framed by the trial Court vide Exh-11, Shafiq- ur-Rehman Juice Seller was examined as P.W.6 at Exh.12. He has produced mashirnama of the place where the accused threw the Dead body of the victim girl without head at Exh.12-A, Javed Juice Seller as P.W.7, Exh.13, Complainant Muhammad Saleem as P.W.8 at Exh.14. He produced Mashirnama of House of the accused at Exh.14-A, Mahsirnama of pointing out place where the accused threw out the head of victim baby in a "Nala" (drain) at Exh.14-B, Mashirnama of Cutter recovered in Itehad Town on the pointation of accused/appellant as Exh.14-C, Mashirnama of pointing out place of Ghanda Nala where the accused threw the Head of the victim baby as Exh.14- D, Mashirnama of Head/Face prepared by the Police at Edhi Cold Storage Center, Sohrab Goth as Exh.14-E, Receipt of Dead Body at Exh.14-F. Irshad Hussain, Civil Judge and Judicial Magistrate at Exh.15. He produced Letter written by Investigating officer for Identification of accused at Exh.15-A, Letter for recording Confessional Statement of accused/appellant at Exh.15-B, Memo of Identification Parade at Exh.15-C, Confessional Statement of accused/appellant, Tanveer Ahmed at Exh.15-D, Sheeraz Ahmed Khan as P.W.10 at Exh.6, S.I.P. Syed Anwar Hussain Bukhari as P.W.11 at Exh.17. He produced F.I.R. in Crime No,34 of 2007, Police Station Mochko Baldia Town, Karachi at Exh.17-A, Inquest Report of head of victim girl at Exh.17-B, Mashirnama of Recovery of Head of Victim at Exh.17-C, Mashirnama of Pointation of Head of Victim Girl by accused at Exh.17-D, Press Clipping with Photographs of Head as Exh.17-E, A.S.-I. Muneer Ahmed as P.W.12 at Exh.18. He produced Entry as Exh.18-A, Dr. Farida WMLO of JPMC as P.W.13 at Exh.19. He produced Post Mortem Report at Exh.19- A, Chemical Examiner's Report at Exh.19-B, final Post Mortem Report at Exh.19-C, Medical Certificate of Cause of Death at Exh.19-D, Muhammad Ashraf Sherwani, Inspector as P.W.14 at Exh.20. He produced order of Senior Superintendent of Police, Investigation/Anti Violent Crime Cell at Exh.20-A, letter of transfer of Investigation as Exh.20-B, Notice issued to witnesses by Investigating Officer as Exh.20-C, Notice issued to accused Tanveer' Ahmed at Exh.20-D, two Orders of Senior Superintendent of Police, Investigation/Anti Violent Crime Cell, Capital City Karachi at Exh.20-E and 20-F, Letter written to Chemical Examiner at Exh.20-G, Mashirnama of Mobile Phone Record as Exh.20-H to 20-J, photographs of head of victim Girl at Exh.20-K, Birth Certificate of Victim Girl at 20- L, Sketch of place where Dead Body was recovered at Exh.20-M, photograph of place where the Dead Body was thrown out by accused at Exh.20-N, the prosecution after completing the evidence
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closed its side vide statement at Exh.21. 4.Statement of appellant/accused was recorded under section 342, Cr.P.C. The appellant/accused only denied the allegations and did not lead any defence evidence. Record further shows that statement of accused on oath under section 340(2), Cr.P.C. was recorded but the accused stated that he does not want to examine on oath in disproof of the charge. After hearing the accused and Prosecutor, the impugned judgment was passed as stated above. 5.Learned Counsel for the appellant mainly contended that the appellant was falsely implicated. There is no eye-witness of the incident. The prosecution has relied upon the circumstantial evidence in shape of recoveries on the pointation of appellant, identification of the appellant through witnesses P.W.6 Shafiq-ur-Rehman and P.W No,7 Javed and confessional statement of the appellant. He contended that the, circumstantial evidence has not been held according to law as time and again held by the Hon'ble Superior Courts. He further argued that confessional statement of the appellant has been retracted by the appellant in his statement under section 342, Cr.P.C. and much reliance would not be placed upon retracted confession. He has further stated that the confessional statement of the appellant clearly shows that the same is tutored and managed one. The appellant has specifically denied the confessional statement. Learned Counsel further argued that the evidence of the prosecution is based upon interested and hostile witnesses. He further contended that nothing was recovered on the pointation or from possession of the appellant. He further' argued that during alleged recoveries the mandatory provisions of section 103, Cr.P.C. have-been violated and no sufficient emphasis could be given to such recoveries. He argued that Muhammad Mahtab was with the police during investigation but he has not spoken in his evidence about the recoveries made from the house of the appellant. He argued that the data of Telephone Cellular calls could not be used against the appellant as the relevant person from the Cellular Company has not been examined by the prosecution. Lastly learned counsel argued that the case of the prosecution falls under sections 315 and 316, P.P.C. and at the most if the prosecution proved its case the appellant will be convicted for offence fallen under sections 315 and 316, P.P.C. Learned counsel has argued that Confessional Statement of appellant is not corroborative by any piece of evidence and reliance could not be placed upon a retracted judicial confessional statement, which has been recorded against the mandatory provisions of sections 164 and 364, Cr.P.C. Learned counsel for the appellant contended that the prosecution has not proved the motive through unimpeachable source and identification of the appellant through P.W. Javed could notbe believed as before Identification Parade, the appellant has been taken to the place where he has left the polythene bag and the headless dead body was recovered on the pointation of P.Ws. Javed and Fahad. The identification Parade was held after the pointation of the place. Every possibility is there that the appellant was shown to the witness Javed and Fahad before Identification Parade. In the above circumstances, the learned counsel strongly argued with vehemence that the identification parade loses its evidentiary value. Learned counsel has relied upon the following case-laws:-- (i)Aala Muhammad v. The State (2008 SCMR 649). (ii)Malik Jehangir Khan and others v. Sardar Ali and 2 others (2007 SCMR 1404). (iii)Arbustan and others v. The State (1992 SCMR 754). (iv)Allah Nawaz v. The State (2009 SCMR 736). (v)Mst. Gul Nissa and another v. Muhammad Yousaf and another (PLD 2006 SC 556). (vi)Muhammad Arshad v. The State (PLD 1995 SC 475). (vii)Kirk v. The State (PLD 1996 Karachi 246). (viii)Lal Pasand v. The State (1971 SCMR 569). 7. Conversely, Mr. Khadim Hussain, learned D.P.-G. argued that prosecution has adduced independent evidence. Appellant is brother-in-law of the complainant. There is no enmity between the complainant and other witnesses to involve, the appellant in a case of capital punishment. The
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prosecution has produced circumstantial evidence, identification of the appellant and appellant made a voluntary confession before the Judicial Magistrate stating in sequence the facts of offence, which he committed. The confessional statement is corroborated by the recoveries on the pointation of the appellant and his identification through P.Ws. Nos.6 and 7, who have no enmity with the appellant or any relationship with the complainant to involve the appellant in such a murder case. ' Learned Prosecutor further argued that the appellant was arrested on 6-3-2007 and on 9-3-2007 his confessional statement was recorded within three days of his arrest which does not amount false implication of the appellant. He has further argued that the appellant has committed brutal murder of a baby aged about 7/8 years and in order to conceal his evil act he has telephoned the complainant and demanded ransom for release of the baby while concealing his identity. The different recoveries made by the Investigating Officer in presence of independent witnesses on different occasions fully proved the prosecution case without any reservations. At the last the learned Prosecutor argued that the prosecution has proved its case beyond any reasonable shadow of doubt and trial court has rightly convicted and sentenced the appellant. 8.We have heard learned counsel for the appellant as well as learned D.P.-G. and with the assistant of the learned counsel for the parties have scanned the entire evidence and minutely perused the same. 9.P.W.1 Muhammad Mahtab, who is resident of same Mohallah stated the fact that on 25-2-2007 at 1500/1530 hours he was called by appellant/accused Tanveer Ahmed and requested him to help him in putting a sack containing some thing on his shoulder. He has done the same. He further stated that he has enquired from the accused about sack who stated that this is a soft soil (Matti) and further stated that he (accused) worked for gain with such soil and went towards Bus stop and on the same day he came to know that Iqra daughter of Saleem was missing. He further stated that on 7-3-2007 at about 1800/1830 hours the accused Tanveer Ahmed along with police led to his rented house and showed the place inside the house and stated that he killed/slaughtered Victim Iqra and I also stated the fact of helping the accused in the bag/sack on his shoulder. He was cross-examined but nothing in favour of appellant/accused could have been achieved. 10.P.W.2 Amanullah stated that on 7-3-2007 accused Tanveer Ahmed led police to the gutter situated by the side of road in Itehad Town and on his pointation he has taken handle of Cutter and accused stated that the said handle was of the cutter with which he has slaughtered victim girl and threw the same in gutter and he has identified the appellant. He was cross-examined but nothing could come in favour of the appellant/accused. 11.P.W.3 A.S.-I. Falak Sher stated in his evidence that he was posted at Police Station Pakistan Bazaar. On 26-2-2007 Muhammad Saleem reported missing of his baby Iqra and such Entry. No,196 was made. He further stated that on 6-3-2007 Muhammad Saleem came in company of another person at police post and introduced said person as Tanveer Ahmed, brother in law of the complainant and stated that he doubted Tanveer Ahmed to be the actual culprit and further stated that the said Tanveer Ahmed/accused was demanding ransom through phone as he has recognized his voice during such contacts and demands. He further stated that on enquiry accused Tanveer Ahmed admitted his guilt. He has further stated that he along with complainant and Tanveer Ahmed went to Police Station where F.I.R. was lodged by Muhammad Saleem (Complainant) and the said F.I.R. was marked to Incharge AVCC for investigation. He further stated that he has arrested accused Tanveer Ahmed and prepared such memo of arrest. 12.P .W.4 S.I. P . Muhammad Sharif of Police Station Pakistan Bazar acted as Mashir of arrest of appellant.. P.W.5 S.I.P. Zahoor Ahmed of Police Station Preedy Karachi stated in his evidence that on 25-2-2007 at 2030 hours he received information through telephone from P.C. Azhar Ali that a bag containing some thing in suspicious condition lying at X-3 Mini Bus Stop on Dr. Dawood Pota Road,
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Saddar, Karachi. On such information he left police station vide Entry No,26 dated 25-2-2007 and proceeded to the pointed place where he found polythene bag of white colour with blue lines on sides containing writing in English as "PP". On opening such bags in presence of witnesses Muhammad Javed and Fahad Ahmed he found Dead Body of some one wrapped in 4 polythene bags in same sequence without having any head. He further found injuries on the dead body. He got post mortem conducted by W.M.L.O of Jinnah Hospital and he registered a case Crime No,97 of 2007 at Police Station Preedy against unknown culprits. Photographs of the Dead Body were made. He further stated that he has delivered the Dead Body under his letter dated 25-2-2007 through Driver Rashid to Edhi Home (Cold Storage) Sohrab Goth, Karachi. He has produced the entries, with his evidence and photographs of the Dead Body. 13.P.W.6 Shafiq-ur-Rehman is Juice Seller at Dr. Dawood Pota Road Saddar, Karachi. P.Ws Javed and Fahad were his employees. On '25-2-2007 his servant Javed contacted him by Cellular Phone at about 1930 hours when he was available at his house; Said Javed informed him that a plastic bag containing some thing was lying near the push cart to which he rushed to the place where the bag was lying. He informed S.I.P. Zahoor Ahmed of Police Station Preedy about the bag and on reaching police, he showed the bag to police. Police opened the bag and found a headless body of a girl. Such memo was prepared by the police and dispatched the dead body to Edhi Ambulance. He further stated that on 9-3-2007 accused Tanveer Ahmed in police custody pointed out the place where the dead body was lying in his presence and in presence of Jamshed. Such memo was prepared by the police. He and Jamshed acted as mashirs. 14.P.W.7 Javed, has stated in his evidence that he and Fahad are employees of P.W Shafiq-ur- Rehman on his push cart for juice selling at Dr. Dawood Pota Road, Saddar, Karachi. On 25-2-2007 at about 1730/1745 hours he and Fahad were available at the road with push cart where a person carrying the bag on shoulder came and put the said bag on road near the push cart and asked for a glass of -juice to him. He served a glass of juice to him. He further stated that the said person inquired him about the public call office and he pointed out Public Call Office, which was located on the other side of the road. He further stated that said person requested him and Fahad to look after the bag but the said person did not turn up for an hour, hence they development anxiety and started examining the bag by touching it then he contacted with P.W. Shafiq-ur-Rehman on telephone and informed him accordingly, who came there and so also the police arrived there. Police opened the bag and headless body of girl was found therein. Police prepared memo of recovery of dead body. The dead body was dispatched through Edhi Ambulance to Hospital. He further stated that'on 8-3-2007 he and Fahad were served with a notice for their appearance on 9- 3-2007 before the Magistrate for identification of accused. Accordingly they appeared and identified the appellant/accused in an Identification Parade. 15.P.W.8 Muhammad Saleem, who is complainant, stated that on 25-2-2007 his daughter namely baby Iqra did not return at home. He started searching for her in the streets of the locality and enquired about her from the relatives and friends. He further stated that then he went to Police Station Pakistan Bazar and reported about the missing of his baby Iqra. He further stated that he has received telephone call on his Cellular Phone so also on PTCL Phone of one person, who was demanding Rs,500,000. as ransom amount for release of his daughter. He further stated that-he asked the culprit to arrange his talk with his daughter but the culprit replied that such arrangements cannot be made but he could send her clothes and chappal as a token/proof of her being in captivity of the culprit. He further stated that on 3-3-2007 he received telephone call whereby the culprits demanded Rs,200,000 and in case of failure of his arrangements/demand of ransom the hand of victim baby would be given to other criminals. Again on 6-3-2007 accused Tanveer came to him and admitted before him that he had been calling him in connection with victim baby and making demands of ransom from him for her release but stated that victim baby
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was not with him at that time, hence he took the accused and 'went along with him to police post Toori Bangash of Police Station Pakistan Bazar and produced him before A.S.-I. Falak Sher and informed him about the admission of accused where his F.I.R. was lodged. He further stated that he has identified the dead body of his daughter at Cold Storage of Edhi Centre. He further stated that the accused is his brother in law (husband of his sister). A lengthy cross- examination was conducted upon this witness but nothing in favour of the accused came out from his evidence. 16.P.W.9 Irshad Hussain is a Civil Judge and Judicial Magistrate, who has stated in his evidence that Identification Parade of accused Tanveer was held and the witnesses have identified him and on the same day he has recorded the judicial confessional statement of the appellant. He further stated in his evidence that he was satisfied that the confessional statement made by the accused is voluntarily without any duress or coercion and after recording the confessional statement of the .appellant he has appended a Certificate as required under section 364, Cr. P C 17.P.W.10 Sheeraz Ahmed Khan is related to complainant so also with accused as accused was his "Khalo". He has stated in his evidence that the accused provided his Mobile Sim Card to Investigating Officer and also produced before the Police clothes, Chappal, cutter and Danda from his house in his presence. His evidence is consistent with the evidence of the complainant. A lengthy cross-examination was conducted upon this witness but no fruitful result came out in fay.our of the appellant. S.I.P. Syed Anwar Hussain Bukhari registered F.I.R. No,34 of 2007 at Police Station Mochko. After the recovery of head of the girl and inspected the place where the head of victim girl was secured, prepared such mashirnama. He has produced with his evidence a photograph of the head of the victim girl. 18.A.S.-I. Munir Ahmed is a formal witness. Dr. Fareeda WMLO of JPMC conducted post mortem of the dead body. Last evidence is of Inspector Muhammad Ashraf Sherwani, who conducted the investigation of the case. He has stated the facts of his investigation. He ,has recorded statements of the witnesses and affected the recoveries on the pointation of the appellant/ accused and requested the Magistrate for holding identification parade and recording confessional statement of the appellant/ accused. A lengthy cross-examination was conducted upon this witness but defence has failed to get any material contradiction from this witness. 19.We have also gone through the case-law cited by the learned Counsel for the appellant. In the case of Lal Pasand (Supra), the Hon'ble Supreme Court has held under:-- "Now, in the instant case, the explanation of the State is that there had been a joint identification parade with the result that it was not possible to find a sufficient number of other persons to be intermingled with the accused. And, the learned Magistrate who conducted the identification parade appears to have assumed that all the five accused had to be identified. That assumption was wholly erroneous, because Saddullah Khan had seen only two of the five assailants. However, on the footing that five persons had to be identified, it would have been unreasonable to mix them with fifty other persons, because such a large number of persons could only have confused the identifying witnesses. Therefore, the proper course in such cases is to have separate identification parade for each accused. And, no explanation has been given in the instant case for not holding separate identification parades." 20.In the case of Kirir v. The State (ibid), the Division Bench of this Court has observed as under:-- "In the absence of such evidence, no value can be attached to the identification of one accused person made by a witness. In other words it is the duty of the prosecution to establish during the trial that every necessary precaution was taken to ensure fair identification. In the instant case the accused was arrested on 19-6-1991 and he was put to identification test on the same day. 21.In the case of State v. Farman Hussain (PLD 1995 SC 1), the Hon'ble Supreme Court has held as follows:-- "Identification was not held in proper manner and number of dummies was not proportionate to
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number of accused persons made to stand in the est. Identification test of Abbas was held after ten days for which it can be said that it was open to doubt. Evidence of identification test in such circumstances is assailable and not fit to be relied upon: 17. On the point of identification test P.W,8 Mr. Muhammad Ahsab Khan A.C.M deposed before the trial Court that kidnapee Tariq Nawaz identified two accused persons namely Liaquat Ali and Farman Sheikh. At that time five accused persons stood in the row along with 15 dummies. He admitted that in the identification test by the witnesses, 13 accused were mixed with 19 dummies except when Tariq came, 5 accused were made to stand with 15 dummies. He did not mention names of the accused persons and of dummies in the pro formas according to their position of standing in the line with serial numbers. At…
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