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Petitioner: Dr. Syed MUHAMMAD KHALID MOIN and 3 otherss VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Wahid Bux Brohi Title: Dr. Syed MUHAMMAD KHALID MOIN and 3 otherss vs THE STATE Case No.: Special A.T. Jail Appeal No,81 of 2002 and Confirmation case No,13 of 2002 Date of Judgment:2004-06-03 Reported As: PLD 2004 Karachi 687 Result: Order accordingly
JUDGMENT
JUDGMENT RAHMAT HUSSAIN JAFFARI, J.-This judgment will dispose of Special AT Jail Appeal No, 81 of 2002 and Confirmation Case No,13 of 2002, as they arise out of a common judgment. 2. The present Appeal is directed against the judgment, dated 12-10-2002, passed by the Anti- Terrorism Court No, II, Karachi Division, in Special Case No,47 of 2000 (State v. Syed Muhammad Khalid Moin and others), under sections 365-A, 386, 387, 34, P.P.C. Read with section 7 of Anti- Terrorism Act, 1997 (hereinafter referred to as the "Act, 1997"). Special Case No, 48 of 2000 (State v. Dr. Syed Muhammad Khalid Moin) under section 13(d) of the Pakistan Arms Ordinance, 1965 (hereinafter referred to as the "Ordinance, 1965"). Special Case No,49 of 2000 (State v. Muhammad Salim Khan Tanoli), under section 13(d) of Ordinance, 1965 and Special Case No,50 of 2000 (State v. Samiullah) under section 13(d) of Ordinance, 1965, under the impugned judgment, the appellants were convicted and sentenced for various offences. The operative part of the judgment concerning conviction and sentences reads as under:-- (i) For the offence under section 365-A, P.P.C. Read with section 34, P.P.C., accused Dr. Syed Muhammad Khalid Moin, Muhammad Salim Khan Tanoli, Samiullah and Salimuddin are awarded sentences of death by hanging by neck till they are dead and to pay fine of Rs,10,00,000 (ten Lac) each, in default in payment of the fine they shall have to undergo R.I. For three years each; (ii) For the offence under section 6(2)(e) Anti-Terrorism Act, 1997, also they are awarded sentence of death by hanging by neck till they are dead, and forfeiture of their properties, as provided under section 7(e) of the Anti-Terrorism Act, 1997; (iii) For the offence under section 13(d) of the Pakistan Arms Ordinance, 1965, accused Dr. Syed Muhammad Khalid Moin, Muhammad Salim Khan Tanoli and Samiullah are awarded rigorous
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imprisonment of 7 (seven) years each and to pay fine of Rs, 10,000 (ten thousand) each or in default of payment of fine, they shall have to undergo R.I. For a further period of 1 (one) year, each: (iv) All the accused are further directed to pay Rs,10,00,000 (ten Lac). Each as compensation to the abductees for the mental anguish caused to them due to callous act committed by the accused in default thereof each of them shall suffer R.I. For a further term of R.I. For 1 (one) year, under section 544-A, Cr.P.C." 3. The brief facts of the prosecution case are that on 31-1-2000 at 9-15 p.m. The appellants Dr. Mohammad Khalid Moin, Salimuddin and Samiullah abducted the complainant Shahid Alt Siddiqui and his son Musib Ali from near Larosh catering North Nazimababad on gun-point. At that time, the abductees were on their car bearing registration number A B M-518. The appellants blindfolded the abductees. They took them and confined them in a bunglow bearing No, 414 Block 1 Gulshene-lqbal Karachi. The appellant Salim Khan Tanoli the chief of the co-appellants came there. He demanded ransom amount of rupees two crores from the complainant. After negotiation, the ransom amount for the release of the abductees was fixed at rupees 55 lacs. The appellants brought cheque books from the Complainant's car. The complainant signed a cheque of rupees 40 lacs whereas his son signed a cheque of rupees 15 lacs. The appellants forced the complainant to talk to the Manager of the bank to encash the cheques, which he did. The appellant Dr. Muhammad Khalid Moin and Samiullah took the cheques to banks where they encashed them. Thereafter the appellants released the abductees. 4. After reaching their house the complainant made a telephone call to his daughter in the meantime the complainant received several calls from the appellants threatening them not to go to police station or disclose the facts to anybody, otherwise they will be killed and so also their other family members. Therefore, due to fear the complainant did not lodge the report. 5. It was further alleged that son-in-law of the complainant, who was abroad, came to know about the incident. They contacted Ashraf Sultan of Citizen Police Liaison Committee. The CPLC people contacted the complainant and then he was taken to CPLC office where he met Jamil Yousuf, Chief of CPLC and others. On their assurances he prepared an application for lodging the report. Thereafter the complainant took the application to the SSP Central, Karachi, office, where he narrated the incident to him. The SSP received the application and sent it to D.S.P., Haidery Police Station. The complainant was directed to go to Haidery Police Station. Thereafter the complainant went to Haidery Police Station where DSP called another. Officer, who took him to police station, where the facts of his application were incorporated in 154, Cr.P.C. Book and was treated as F.I.R. 6. The police arrested the appellants. From their possession, the ransom amount was secured which they had distributed amongst themselves . According to their shares. At the time of arrest of the appellants Dr. Syed Mohammad Khalid Moin, Salimuddin and Samiullah the police secured unlicensed arms and. Ammunition from their possession. From the possession of appellant Muhammad Salim Khan Tanoli, a cellular telephone set of abductee Musib Ali Siddiqui was secured. From the possession of appellants Samiullah, a golden Locket of the abductee Musib Ali Siddiqui- was secured. The appellants were put in identification test held before a Magistrate. The abductees, manager, cashier and accountant of the banks identified the appellants. After completing the investigation, the appellants were challaned in the Court. 7. On 4-9-2000, a charge under sections 365-A, 385-386, 34, P.P.C. And section 7 of Act, 1997, was framed against'the appellants. A charge under section 13(d) of Ordinance, 1965, was framed against appellants Dr. Syed Muhammad Khalid Moin, Muhammad Salim Khan Tanoli and Samiullah the appellants pleaded not guilty to the charge. In support of the case, the prosecution examined sixteen following witnesses. 8. P.W.1 and P.Wd.15 are the abductees. They gave the same details of the incident as mentioned above. They fully supported the prosecution case, identified the accused/appellants in the Court
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and picked them out in the identification test. The evidence reveals that in the first instance, they identified the appellants Muhammad Saleem Khan Tanoli through voice and then seeing him on the next day. They also saw all the appellants through the side of glasses. 9. P.W.2 Saqlain Zaidi was Cashier in Allied Bank Limited, Hadi Market Branch, Nazimabad, Karachi. His evidence reveals that appellant Samiullah brought the cheque of Rs,4,000,000, issued by the abducteecomplainant Shahid Ali Siddiqui. The said cheque was encashed after obtaining the signature of Samiullah on the back of the cheque. In the identification test, he identified the appellant Samiullah, to be the same person who encashed the cheque. 10. P.W.3 Ghulam Shabbir was property agent. His evidence reveals that on 5-2-2000 at about 7-30 p.m. The appellant Dr. Syed Muhammad Khalid Moin, deposited the key of the Bunglow bearing No,414, owned by one Mst. Naseema Rais on the ground that they had vacated the house. He had identified the appellant Dr. Syed Muhammad Khalid Moin in the Court to be the same person. 11. P.W.4 Mirza Khurram Baig was Cashier in Allied Bank Limited, Haideri Branch, Karachi. His evidence reveals that on 1-2-2000 the appellant Dr. Syed Muhammad Khalid Moin brought a cheque for Rs,1,500,000, issued by the abductee Musib Ali Siddiqui. The said cheque was encashed after obtaining his signature on the back of the cheque. In the identification test he identified the appellant Dr. Syed Muhammad Khalid Moin to be We same person, who brought the cheque for encashing the same. 12. P.W.5 Syed Hassan Saghir Abidi was Manager, Allied Bank Limited, Hadi Market Branch, Nazimabad, Karachi. His evidence reveals that the abductee-complainant Shahid. Ali Siddiqui contacted him on telephone for encashing a cheque of Rs,4,000,000, as he required the amount urgently but in the beginning he was not agreeing to it because of some internal problem. Then the abductee talked to him 2/3 times and thereafter he agreed to encash the cheque after calling the money from the Head Office. His evidence further, reveals that the appellant Samiullah had brought the cheque of Rs,4,000,000, which was encashed and he put the signature on the back of the cheque because it was of huge amount. In the identification test he identified the appellant Samiullah to be the same person, who had brought the cheque for encashment. 13. P.W.6 Ghulam Hussain Gondal, was Inspector Complaint Cell, Liaquatabad, Karachi. He had incorporated the facts of the application of the abductee-complainant Shahid Ali Siddiqui in 154, Cr.P.C. Book and then the investigation was transferred to ACLC, therefore, he sent the papers to Inspector Abdul Hafeez Junejo. 14. P.W.7 Muhainmad Pervaiz was ASI, Anti-Car Lifting Cell. His evidence reveals that on 23-2-2000, he was with Inspector Abdul Hafeez Junejo on patrolling duty when they found a car parked in a suspicious condition. From it the appellants Dr. Syed Muhammad Khalid Moin, Muhammad Saleem Khan Tanoli and Samiullah were arrested and from them the arms, ammunition and wallets were secured. 15. P.W.8 Syed Asad Ali Rizivi was SIP Police Headquarters Garden, Karachi. He had registered the F.I.R. Under section 13(d) of Ordinance, 1965 against the appellants Dr. Syed Muhammad Khalid Moin, Salim Khan Tanoli and Samiullah. 16. P.W.9 Zakaullah was SIP Ferozabad Police Station. He had registered the reports of Crimes Nos. 15, 16, 17 of 2000, under section 13(d) of Ordinance, 1965. 17. P.W.10 Saifur Rehman, S.I.P., ACLC, Karachi. He was also with Inspector Abdul Hafeez Junejo on patrolling duty when they found the car in a suspicious condition. From it the appellants Dr. Syed Muhammad Khalid Moin, Salim Khan Tanoli and Samiullah were arrested and secured arms and ammunition from them. 18. P.W. 11 Shakeel Ahmed was SIP, Crime Investigation Department, Karachi. His evidence reveals that on 23-2-2000 at about 1-15 p.m. Syed Hassan Saghir Abidi, Bank Manager of ABL, identified the
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appellant Muhammad Saleem Taloni at the police station to be the said person. Thereafter the appellant was arrested in his presence. 19. P.W.12 Farooq Ahmed, J.M. IX Central, Karachi. He had conducted the identification test of the appellants where the P. Ws. Correctly picked out the appellants, as mentioned above. His evidence further reveals that on 23-3-2000, he held the identification test of golden chain and cellular phone through P.W.15 Musib Ali Siddiqui, who identified the golden chain and mobile phone to be owned by him. 20. P.W.13 Sharif Ahmed was mashir of all the recoveries of articles, cash and certificates, etc. From the houses of the appellants on their pointation. 21. P.W.14 Muhammad Shakir was also mashir. Before this witness the appellants had shown the Bunglow No,414 where they had kept the abductees in captivity. Thereafter they also showed the plot at Dalmia near Drive-in Cinema, where they had released the abductees. 22. P.W.16 Abdul Hafeez Junejo, Investigation Officer. He gave the details of investigation. He also produced the various documents secured by him from appellants, Handwriting Fxpert report, specimen signatures of the appellants. Thereafter, the prosecution closed their side. 23. The appellants Dr. Syed Muhammad Khalid Moin in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. He further stated that he was arrested from his house. The Klashnikov was secured from police constable Sher Afgan, who was provided to him as Gunman by SSP, being Deputy Medical Superintendent, Abbasi Shaheed Hospital, Karachi. He denied the encashment of cheque and recovery of certificates from his house. As regards the identification test, he disclosed that the witnesses had seen him at the police station and the witnesses identified him due to pressure of the police. As regards his specimen signatures, he disclosed that police had forced him to put the signatures on cheque before a Magistrate, which he did. He took the plea that during his appointment as Deputy Medical Superintendent. Abbasi Shaheed Hospital, Karachi, he had unearthed corruption of some contractors, therefore, they were annoyed with him. The said contractors extended threats to implicate him in false' cases as prior to his appointment his predecessor Dr. Zafar Abbas was killed by those contractors. 24. Appellant Samiullah, in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. He took the plea that the money has been foisted upon him. The P.Ws. Saw him before the identification test and the golden chain was foisted upon him. He further disclosed that alleged recoveries were planted. The witness deposed against him and identified him at the pressure of Inspector Abdul Hafeez Junejo. His signatures were obtained forcibly. He took the defence that he was carpenter and prepared one Allmirah for Mst. Naseema Rais, who was introduced to him through one Gulloo son of Yousuf Jamil of CPLC. There were differences between him and Mst. Naseema Rais over the money for preparing the said Almirah, therefore, he had been involved in this case at the instance of Yousuf. Jamil. 25. The appellant Salim Khan Tanoli in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. He stated that he knew both the abdcutees before this incident. The arms and ammunitions have been foisted upon him; that Manager of ABL already knew him as he was account holder in the bank; that the police had collected Rs, 2,300,000 from his friend, bank account and then foisted the said cash upon him. As regards identification test, he stated that it was based on mala fides because he was previously known to the abductees and the Bank Manager; that the F.I.R. Was lodged under the influence of CPLC, who had fabricated evidence against him; that his personal money has been shown as amount of ransom and that he is innocent. 26. The appellant Saleemuddin in his statement, recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution and stated that he had saved the money and purchased the
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certificates for the marriage of his sister, which the police had foisted upon him. He took the plea that he had been falsely involved in the case due to old enmity.. 27. The appellant Dr. Syed Muhammad Khalid. Moin, examined one D.W. Muhammad Shoaib. His evidence reveals that the appellant through Dr. Aijaz Memon asked him to give him Rs,1,200,000 as he was in need, therefore, he had sent the money to him through his servant. 28. The appellant Samiullah examined defence witness Mehmood Khan and his son Imran Khan. Their evidence reveals that they were residing in the building where the appellant Samiullah was residing. From 20-2-2000 to 24-2-2000, they did not see any police officer coming to the building but in the cross-examination, they stated that in the months of January and February they were in Larkana. The appellants did not examine themselves on oath. 29. After considering the evidence available on the record and hearing parties' counsel, the learned trial Judge convicted the appellants, as mentioned above, under the impugned judgment. Hence the present appeal. 30. We have heard the Advocates for the appellants, A.A.G. For the State and perused the record of this case very carefully. Mr. Azizullah K. Sheikh, Advocate for appellant Dr. Syed Muhammad Khalid Moin and Mr. Muhammad Ilya; Khan, Advocate for appellants Salimuddin and Samiullah have not challenged the findings of the trial Court on merits but straightaway requested that the sentences of the appellants may be reduced. 31. Mr. Abdul Qadir Halepota, Advocate for appellant Muhammad Salim Khan Tanoli, has stated that the role of the appellant is minor as it is alleged that he had demanded only ransom amount; that the evidence against the said appellant is identification through voice, which is a very weak type of evidence and is not sufficient to convict the appellant on the said evidence. In support of his above submission,' he has relied upon Sher Muhammad v. State 1972 PCr.LJ 537. He has further stated that the offence, if any would fall under sections 385 and 386, P.P.C. But when he was pointed out that charge under section 385 and 386, P.P.C. Was framed against the appellants but the trial Court did not convict them under those sections, then he stated as an alternative argument that the sentence of the appellant may be reduced. 32. On the other hand, Mr. Habib Ahmed, learned A.A.-G., has stated that both the abductees have fully supported the prosecution case and implicated all the appellants; that the evidence against the appellant Muhammad Salim Khan Tanoli is of identification through voice and by seeing him by both the abductees through the side of spectacle and they saw him on the next day; that- the cellular phone of one of the abductees Musib Ali Siddiqui was recovered from the possession of the appellant Muhammad Salim Khan Tanoli, which was identified by the abductee Musib Ali' Siddiqui in an identification test; that the said pieces of evidence are also connecting the appellant Muhammad Saleem Khan Tanoli in this case. He has further stated that the ransom amount was secured from each appellant being their share; that the appellants Dr. Syed Muhammad Khalid Moin and Salimullah were identified by the bank employees where they had gone to encash the cheques and were successful in obtaining the cash from the banks; that the evidence is sufficient to prove the guilt of all the appellants; that there are no mitigating circumstances for warranting lesser sentence as the normal sentence provided under section 365-A, P.P.C., is death and for awarding lesser sentence there should be some mitigating circumstances but the same have not been pointed out by any of the Advocates for the appellants. Therefore, he has requested that the sentences awarded by the trial Court may be maintained. 33. We have given due consideration to the arguments, gone through the evidence available on the record very minutely and found that both the abductees in their statements have fully supported the prosecution case by giving the details of the incident from the time of their abduction till their release. Both the abductees had seen the appellants during their abduction and during their captivity. They had also seen them on the day when they signed the cheques from the
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side of spectacle. Subsequently all the appellants were identified in the identification test held before the Magistrate. The bank employees also identified the appellants Dr. Syed Muhammad Khalid Moin and Samiullah being the persons who had encashed the cheques. A lengthy cross- examination was conducted but nothing came on record to discredit the evidence of the P.Ws. There is no enmity whatsoever between the witnesses and the appellants nor any enmity was suggested during the cross-examination or proved. There is no reason with the P.Ws. To falsely implicate the appellants with the commission of this crime. Their evidence is confidence inspiring. We do not find any reason to disbelieve their evidence. 34. Apart from the above ocular testimony there is circumstantial evidence against the appellant Muhammad Salim Khan Tanoli as cellular phone of abductee Musib Ali Siddiqui was secured from his possession in presence of witnesses, who had also supported the prosecution version. The said cellular phone was put in the identification test before the Magistrate where the abductee Musib Ali Siddiqui had correctly picked out his cellular phone. As such the involvement of appellant Muhammad Salim Khan Tanoli is also proved through this piece of evidence. 35. The appellant Samiullah is also connected through the recovery of golden chain, which belonged to the abductee Musib Ali Siddiqui. The same was snatched from him during his captivity. The said recovery was also supported by mashirs. The golden locket was put in the identification test before the Magistrate, where the abductee Musib Ali Siddiqui correctly picked out this said locket. 36. The evidence against appellants Dr. Syed Muhammad Khalid Moin and Samiullah is their signatures on the cheques, which they put while encashing the cheques. Their specimen signatures were obtained, which were sent to Handwriting Expert along with the cheques. The report is in positive. All the pieces of evidence clearly show that all the appellants are involved in the case. 37. Furthermore, the learned Advocates for the appellants Dr. Syed Muhammad Khalid Moin, Samiullah and Saleemuddin have not challenged the findings of the trial Court on merits but they have requested for reduction in their sentences. 38. As regards the arguments of the learned Advocate for the appellant Muhammad Salim Khan Tanoli; that the evidence against the appellant is of only identification through voice. The evidence reveals that both the abductees have categorically siated that they had seen the appellant Muhammad Salim Khan Tanoli. On the said piece of evidence, the appellant Muhammad Salim Khan Tanoli did not cross-examine the witnesses and their evidence went unchallenged. As such the prosecution have proved their case against all the appellants beyond any shadow of doubt, therefore, the learned trial Judge rightly convicted all the E appellants under section 365-A, P.P.C. Read with section 34, P.P.C. 39. As regards the conviction of the appellants under section 6(2)(e) of Act, 1997. Suffice it to say that when the incident took place at that time the said provision was not available, therefore, the appellants could F not have been convicted for the said offence. In this case the incident took place on 31-1-2000. The section 6(2)(e) of Act, 1997, was included by Ordinance XXXIX of 2001 from 14-8-2001. It is well-settled principle of law that the appellants would be liable for conviction for an offence, which was available at the time of commission of the- said offence. Perusal of the evidence reveals that all the ingredients of offence punishable under section 6(b) of the Act, 1997, as stood, on the date of incident were attracted. The said offence was punishable under section 7(ii) of Act, 1997. Thus, the appellants were required to be convicted and sentenced under section 7(ii) of the Act, 1997. At the relevant time section 365-A, P.P.C. Was a scheduled offence, therefore, the appellants, are required to be convicted under section 365-A, P.P.C. Read with section 7(ii) of Act, 1997. Hence the conviction and sentence awarded under section 6(2)(e) of the Act, 1997, are set aside.
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40. As regards the conviction under section 13(d) of Ordinance, 1965 of appellants Dr. Syed Muhammad Khalid Moin, Muhammad Salim Khan Tanoli and Samiullah. It is pointed out that at the relevant time, according to Item 5 of Schedule attached to the Act, 1997, the offence punishable under Ordinance, 1965, if committed conjointly with any other schedule offence, then only the Anti- Terrorism Act had jurisdiction to try the said offence. In the present case, there is no evidence showing that the arms and ammunition secured from the possession of the above named three appellants were used in the commission of schedule offence. The learned A.A.-G. Has frankly conceded that the offence punishable under section 13(d) of Ordinance, 1965, was not committed conjointly with the schedule offence, therefore, the trial Court had no jurisdiction to try the said offence. Hence the convictions and sentences awarded to the above named three appellants under section 13(d) of Ordinance, 1965,. Are set aside. The cases were required to be transferred to the concerned Court having jurisdiction in the matter under section 23 of Act, 1997. 41. As regards the sentences, the learned trial Court awarded the sentences of fine while convicting the appellants under section 365-A, P.P.C. The sentence of fine is not provided under section 365-A, P.P.C., therefore, the law does not warrant the said sentence. The trial Court should have forfeited the movable and immovable properties of the appellants instead of awarding sentence of fine. Therefore, the sentence of fine awarded under section 365-A, P.P.C. Is set aside. 42. As regards the sentence of one year in default in payment of compensation amount under section…
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