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Petitioner: Shaikh MUHAMMAD AMJAD VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Roshan Essani, Muhammad Mujeebullah Siddiqui Title: Shaikh MUHAMMAD AMJAD vs THE STATE Case No.:Criminal Appeals Nos.75 of 2001Special Anti-Terrorism Jail Appeal No,83
JUDGMENT
Reported As: 2002 P Cr. L J 1317 Result: Appeal dismissed Judgment JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- The appeal under section 25(1) of the Anti-Terrorism Act, 1997 (hereinafter referred to as A.T.A.), at the instance of appellant/convict Shaikh Muhammad Amjad, is directed against the judgment, dated 3-10-2001 by the learned Anti-Terrorism Court No,III, Karachi, whereby the appellant has been convicted under section 302(a), P.P.C. And sentenced to death. He has been further convicted under section 365-A, P.P.C. Read with section 7(e) of A.T.A. And has been sentenced to death. On both counts he has been directed to be hanged by neck till his death and both the sentences have been awarded subject to confirmation by this Court under section 374, Cr.P.C. Read with section 30(2) of A.T.A. The learned trial Court has also submitted the proceedings for confirmation of the death sentences. The appellants has been further directed to pay an amount of Rs,2,00,000 as Diyat and on recovery thereof is to be paid to the heirs of deceased under section 544-A, Cr.P.C. The movable and immovable properties of the accused have also been confiscated to the Government. The benefit of section 382-B, Cr.P.C. Has been extended to the appellant by the learned trial Court. 2. By this judgment we will dispose of the appeal as well as confirmation reference. 3. The prosecution case is that on 4-8-2001, at 15-20 hours, complainant Fazal-ur-Rehman lodged F.I.R. No,151 of 2001, at Police Station, Civil Lines, Karachi (South) stating that he is residing with his family at Bungalow No,28-E, 4th Gizri Street, D.H.S. Karachi. On 29-6-2001. He reached Karachi from Islamabad by Aeroplane. As soon as he came out of the Airport at 9-15 O'Clock in night, he received a call on his mobile phone which was made from the mobile phone of his son Shakir Latif bearing No,0303-7333660. He heard the call, and the caller warned him saying "we have kidnapped your
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son". The caller further threatened him that "in case, you inform this to police or any other agency, we will kill your son and throw his dead body, and I will continuously remain in contact with you". When he reached his house, he came to know that his son Shakir Latif, who was engaged in the profession of law had gone to meet some client at Marriot Hotel and had not returned as yet. Due to fear he did not contact police or any other agency at that time. On 30-7-2001, the same caller again contacted him on phone at 8-30 O'Clock in the morning and threatened him saying "you should arrange for the amount, I will contact you later on". The said person again called him on phone at 7-45 O'Clock in the same evening and said "you should arrange for 2 crore rupees as ransom". Thereafter, said caller continued contacting him from the mobile phone of his son and from other different phone numbers demanding the amount. Ultimately on 4-8-2001, at 12-10 and 12-11 O'Clock he phone him and threatened that "if you do not pay 25 lacs rupees by evening, we will kill Shakir, and I will again contact you in the evening". He, therefore, immediately informed the matter to C.P.L.C. And lodged F.I.R for taking action. 4. After registration of F.I.R., the appellant was arrested on the same day at about 4-43 p.m. From Tele Card Telephone Booth, near Saddar Karachi. After his arrest the appellant made extra-judicial confession and led the police party alongwith C.P.L.C. Officials and the Mashirs to the discovery of dead body of deceased Shakir Latif. After completion of investigation, the appellant was challaned to face trial by A.T.C. Court No,III, at Karachi. 5. The appellant pleaded not guilty to the charge and the prosecution examined the following witnesses:-- "P.W.1 Fazal-ur-Rehman son of Muhammad Latif, Exh.6, P.W.2 Ahmed Chinoy son of Abdul Razzak Chinoy Exh.10, P.W.3 Sahib Khan son of Haibullah Exh.24, P.W.4 Zafar Khursheed Ahsan son of Syed Shamshad Ali Exh.26, P.W.5 Muhammad Arshad son of Muhammad Ashraf Exh.28, P.W.6 Aftab Alam son of Junaid Alam Exh.29, P.W.7 Haji Altaf Hussain Mangi son of Gul Hussain Mangi Exh.32, P.W.8 Ejaz Latif son of Muhammad Latif, Exh.33, P.W.9 Nasir Latif son of Ejaz Latif Exh.35, P.W.10 Nadeem Azhar Siddiqui, Advocate Exh.37, P.W.11 Muhammad Younus son of S.M. Younus Exh.39, P.W.12 Ejaz Ahmed son of Ahmeduddin Exh.40, P.W.13 Muhammad Amin son of Muhammad Bhai Exh.42, P.W.14 A.S.-I. Nigar Ahmed son of Soofan Ali Exh.43, P.W.15 Rahmatullah Mooro, Judicial Magistrate Exh.44, P.W.16 Dr. Ghulam Hussain M.L.O. Exh.50, P.W.17 Akhtar Younus son of Younus Exh.54, P.W.18 Sajjad Ali, A.S.-I. Police Exh.55, P.W.19 Irfan Ahmed S.-I. Police Exh.57, P.W.20 Sikandar Ali son of Khuda Bux, P.W.21 Dr. Muhammad Amin Yousufzai S.P. City, Exh.61, P.W.22 Javed Iqbal Inspector/Investigating Officer Exh.67." 6. P. W.1, complainant Fazal-ur-Rehman, father of deceased Shakir Latif deposed that, accused Shaikh Amjad is his next door neighbour. Mobile Phone 0303-7333660 was in the use of his son deceased Shakir Latif. He has further stated that Mobile Phone 0333-2114997 was in his use. He has deposed that on 29-7-2001 at about 9-15 p.m. He was at Airport when he received a call on his mobile phone which originated from the mobile telephone of his deceased son. The call was disconnected after simple hello. After one minute he received another telephone call from the mobile telephone of his deceased son. The person speaking from the other side warned him that his son Shakir Latif was in his custody and he asked to arrange ransom for his release, threatening that nobody should be informed about the matter else his son would be killed. The caller stated that the quantum of ransom money shall be intimated later. ' In utter confusion he reached to his house and inquired about his son from his wife. He was informed that the deceased had received a telephone call at 3-30 p.m. From his client and had gone to Marriot Hotel in Honda Civic Car No,ACQ-843 and had not returned as yet. The witness further stated that due to threat by the unknown person he did not inform the matter to anyone on 29-7-2001. However, after thinking over the matter at night he informed the matter to C.P.L.C. On 30-7-2001. On such report C.P.L.0 (Citizens Police Liaison Committee) kept his telephone under
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observation. His mobile phone was not kept under observation. On 30-7-2001, he again received a call on his mobile telephone at 8-30 a.m., which was also made from mobile telephone of his deceased son. This time, the caller demanded an amount of rupees two crores as ransom money for the release of his deceased son and again threatened not to inform the matter to the police or reporters, failing which he had to face dire consequences. On the same date he again received a call on his mobile telephone in the evening, from the mobile telephone of his son and the caller directed to arrange the ransom money forthwith. He informed the caller that he would not be able to arrange the amount of rupees two crores. On 31-7-2001, at about 10-00 a.m. He again received a telephone call on his mobile telephone from the mobile telephone of his deceased son and the caller reiterated his demand about the ransom. This time, he informed the caller that a file was with his son Shakir Latif, which belonged to Mandwiwala and Zafar, Advocates, who were demanding the said file. The caller was requested to return the file. He was further requested not to make any call from the mobile telephone of his son as Mandwiwala Advocates, have already informed High Court that the said file was taken away by Shakir Latif, with whom no contact was being made. The caller replied that he will inquire from Shakir Latif about the said file. On the same day at about 11- 00 a.m. He again received telephone call from the same person and this time the call was made from local ground line. The caller informed that the file shall be returned. He again pressed about the payment of ransom money. On 1-8-2001, he did not receive any telephone from the abductor and on 2-8-2001, at about 11-00 a.m. He received a telephone call from him on mobile phone. Abductor reduced the quantum of ransom from rupees two crores to 25 lacs. The witness inquired about the health of his son and whether he is being provided with food or not and the. Caller informed that Shakir Latif was all right. On 3-8-2001, at about 12-00 noon, the witness again received telephone from the said person on mobile telephone and insisted for arrangement of ransom money. The witness informed that he cannot arrange the demanded money and that he can pay Rs,5,00,000 as ransom for release of his son. On 4-8-2001, the witness received a call between 12-00 noon and 1-00 p.m. And the caller asked to arrange rupees twenty-five lacs as ransom money. The caller further warned that the money should be arranged and paid in the evening and it should be treated as deadline. The witness has stated that he asked the caller to allow Shakir Latif to talk to him on which he told that he was at a distance of about 200 Kms. From Karachi and it was not possible for him to allow his son to talk to him. The witness has further stated that after this talk he was very much frightened and decided to report the matter to police. He, therefore, lodged the F.I.R. At 3-15 p.m. With Police Station Civil Lines. He has produced the F.I.R. Exh.8. After lodging of F.I.R. On 4-8-2001, he again received a telephone call at 4-45 p.m., on his mobile telephone. He informed the caller that he was prepared to enhance the quantum of ransom money and can also send his car alongwith ransom money for release of his son. The conversation continued for about 2-1/2 to 3 minutes. While the conversation was going on the witness felt that the caller was in some difficulty and he heard several voices from the other side. At that point of time a person who was deputed on monitoring the calls by police/C.P.L.C. Took mobile phone from him. He was informed from the other side that police and C.P.L.C. Team had conducted raid and had apprehended the caller. On the same day he received another call on his telephone at about 5-00 p.m. With the news that his son was killed. He was informed that dead body of his deceased son was found in Bungalow No,51/1, 10th Street, Delton D.H.A, Karachi. On receiving this information he sent his elder brother Ejaz Latif to go there for confirmation. At about 8 or 8-30 p.m. The dead body of his son was brought at his house. At that time, he came to know that the kidnapper was his next door neighbour. The witness has further stated that the accused has killed his son on 29-7- 2001, by taking him from Hotel Marriot on the pretext of legal consultation in his rented Bungalow No,51/1.
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7. He has stated that on 31-7-2001, when he had asked the caller that the file of Mandwiwala and Zafar, Advocates which was with his son may be returned, the caller had told that the witness can collect the said file from open plot situated in front of the Bungalow of witness. The said open plot is situated in front of the bungalow of accused Sheikh Amjad and the file was found lying in that empty plot. He has stated that the said file was also handed over to police after registration of F.I.R. He produced the said file in Court, as Article P.1 and the seizure memo. Of the file as Exh.9. He has further stated that when the dead body of his son was brought to his house about 500 to 600 persons including the relatives and Mohallah peoples had collected and all of them were feeling sense of insecurity and fear and after coming to know that the act was committed by the next door neighbour, they attempted to set the bungalow of accused on fire. The police which had reached by that time intervened and saved the property of accused. ' In cross-examination, he has stated that Mr. Afzal Shigri, Ex-I.-G., Sindh, Commandant Police Academy Islamabad, was his friend. He has denied that the investigation was conducted by police under his influence and the Bar Association passed resolution under his influence. In cross- examination he has denied the suggestion that no ransom was demanded. He has denied the suggestion that the file of Mandwiwala and Zafar, Advocates, was not found by him from the empty plot in front of the bungalow of accused. He has further stated in cross-examination that he felt one or two times that the caller had tried to change his voice. He has denied suggestion that on 29-7-2001, his deceased son took the key of Bungalow No,51/1, 10th Street, Delton D.H.A., Karachi, from the accused and he alongwith a girl and another friend went to that bungalow of the accused and the incident took place because of his own negligence. 9. P.W.2, Ahmed Chinoy, has stated that he is businessman and Deputy Chief of District Central C.P.L.C. He was working on honorary and voluntary basis. He has deposed that on 30-7-2001, they received telephonic information from complainant/P.W.1, Fazal-ur-Rehman that his son Shakir Latif was missing from 29-7-2001. He had further informed that he had received telephonic call on his mobile telephone, which was made from the mobile telephone of his son Shakir Latif. This witness has corroborated P.W.1, on the point of receiving calls from the abductor. He has further stated that the complainant sought their help for recovery of his son. According to him the C.P.L.C. Was dealing in such cases for the last 10 to 12 years and on receiving information from the complainant his Telephone No,5833504 was kept under observation. Another telephone of complainant was also kept under observation and they started monitoring the calls which were being received on the telephones of complainant at his bungalow and on his mobile telephone. He has further stated that they monitored all the calls on the ground line telephone and mobile telephone of the complainant from 30-7-2001 to 4-8-2001. He has further stated that they had arranged for recording of telephone calls of the telephones of complainant in audio cassettes. He has stated that according to their working, they used to deploy 1 or 2 members of their organization at the residence of the victim and also used to monitor the incoming calls as well as used to record the same in audio cassette. According to him P.W.17, Akhtar Younus, was deputed at the bungalow of complainant to monitor and record the incoming calls. The places of origin of suspected calls were also confirmed during period of observation. He has stated that on 4-2-2001 they had advised the complainant to lodge the F.I.R. As by that time they had chalked out plan for arrest of the culprit on the basis of data which was collected from incoming calls and for that purpose the indulgence of police party was necessary. S.S.P. (South) was also consulted and various parties were constituted by the S.S.P. For their help. One party consisted of this witness, P.W. Babar Younus and Inspector Javed Iqbal of Police Station Civil Lines and his subordinates, who took position at Saddar near Jabees Hotel. At about 4-42 p.m. P.W. Akhtar Younus who was deputed at the bungalow of complainant informed them on wireless that one person who has been located at Telecard Booth, near Jabees Hotel Saddar was talking on telephone with the complainant. Within two minutes their
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party reached at Telecard Telephone Booth, which was situated in front of G.P.O. Saddar. On reaching near the Telephone Booth, they pointed out the same to police party who surrounded the same. When the police party surrounded the said Telephone Booth, the person who was talking threw the receiver and tried to escape from there. However, he was apprehended by the police and was handcuffed immediately. The witness stated that the accused present in Court was the same who was apprehended from the Telecard Telephone Booth. After apprehension of accused, he took the receiver and found that the call was still intact and the complainant was responding from other side. He requested the complainant to give telephone to P.W. Akhtar Younus, who was confirmed that the accused was apprehended by police. He further stated that at the time of arrest, personal search of the accused was taken by police and some visiting cards, including visiting card of deceased Shakir Latif, were secured from the possession of accused. According to him, he had also signed the visiting card of deceased Shakir Latif secured from the possession of accused, on its backside which he has produced Exh.11. The Telecard secured from the possession of accused has been produced as Exh.12. He has produced wallet of accused on which his name was printed as "S.M. Amjad". He stated that police secured mobile telephone as well as voice changer from the possession of accused at the time of his arrest. He produced the mobile telephone and voice changer as Articles P.3 and P.4 respectively. This witness acted as Mashir of recovery and produced the same as Exh.13. The co-Mashir was P.W. Babar Younus. He has further stated that after his arrest the accused was confused and terrified and volunteered to tell each and everything about deceased Shakir Latif, saying that he should not be tortured and beaten. According to this witness, the accused then confessed that after abduction of Shakir Latif, he administered Potassium Cyanide, to him in a glass of juice, which resulted in his death on the day of abduction. He also confessed that he had put the dead body of deceased Shakir Latif in the car of deceased which was available in the rented Bungalow No,51/1, 10th Street, Khayaban-e-Mujahid, Phase V, Defence. The accused further , informed that his Honda Civic VTI car was parked by him near the Telephone Booth and Police seized the said car bearing No,ABG-765. Thereafter, the accused voluntarily led the Mashirs and police party to his rented Bungalow No,51/1. On reaching there he pointed out that the key of the said bungalow was kept by him on the right side pillar of the outer door of bungalow in a sma ll place meant for light. He then took out the key and opened the lock and led the police party and Mashirs inside the bungalow. When they entered inside the bungalow the foul smell was coming. The car of the deceased Shakir Latif was parked there and the accused took the key of the said car from the place meant for Air-conditioner. By that time P.W. Ejaz Latif, uncle of deceased Shakir Latif had also reached there. The accused then opened automatic lock of the car of deceased and then opened the dicky of the car with lever near the driving seat and then opened dicky, where dead body of deceased Shakir Latif, was found. The bad smell coming from the dead body, spread profusely all over. The accused pointed out that it was dead body of deceased Shakir Latif. The condition of the dead body was very bad and its colour had turned to be blackish. Deceased was wearing dusky colour pant and off-white cream colour shirt. His dead body was wrapped in polythene bag which was further tightened with red colour rope. P.W. Ejaz Latif, also identified the dead body of his nephew Shakir Latif. Police prepared the Mashirnama of the place of incident and recovery of the dead body. This witness acted as Mashir. Co-Mashirs Babar Younus and Ejaz Latif, uncles of deceased Shakir Latif also signed the Mashirnama. He has produced the same as Exh.14. The police prepared inquest report of the dead body, which was signed by the same Mashirs. He produced the Mashirnama Exh.15. The witness further identified in Court, the key of car of deceased Shakir Latif, which was taken out by the accused from a place meant for Air-conditioner. He produced the same as Article P.6. He further produced a key-chain containing three keys Exh.P.7, saying that the accused opened the lock of
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rented bungalow with the said keys. The plastic bag in which dead body of deceased was found wrapped has also been produced Exh . P. 8 . 10. He further stated that on 6-8-2001, P.W. Akhtar Younus, handed over the record, regarding telephone calls of ground line telephone of the bungalow of the complainant, record of calls on mobile telephone of the complainant, record of the calls on the mobile telephone of deceased Shakir Latif, the list of Telecard Telephone Booth as well as one audio cassette of T.D.K. Company, containing conversation of the complainant and accused, to Inspector Javed. He produced the audio cassette Article P.9. He produced the seizure memo. Of audio cassette as Exh.16 and the record of telephone calls as Exh.17 to Exh.20. He stated that the C.P.L.C. Had obtained the list of record of telephone calls as well as list of Telecard Telephone Booth Exhs.19 and 20 from the concerned department through fax. 11. He further stated that on 7-8-2001, he and P.W. Babar Younus had gone to Police Station Civil Lines at about 1-30 p.m. In connection with the present case, where Inspector Javed was interrogating the accused. The accused informed during the interrogation that remaining quantity of Potassium Cyanide was available in his rented Bungalow No,51/1, 10th Street, Phase V, Defence. The accused then led the Investigating Officer, and the witnesses to his rented bungalow. He led them to a room adjacent to Drawing Room. A black bottle on which Potassium Cyanide was written was taken out by the accused from an Almirah and produced before the police. The police secured the same and prepared Mashirnama. The bottle was seized at the spot. This witness identified the bottle containing Potassium Cyanide in Court and produced the same as Article P.10. The witness had signed the sealed cover of Article P.10 and identified the same in Court. He produced Mashirnama of the recovery of Potassium Cyanide Exh.21. He further deposed that the accused then led them to the Drawing Room and produced a jug and two glasses as well as two bottles of juice, from beneath a gray colour table. One bottle was sealed and the other had 3/4 contents of juice, on which "Turbo Orange Juice" was written. The accused further stated that from the bottle of Orange Juice, he filled the juice in glass and mixed with it, the Potassium Cyanide and offered the same to deceased Shakir Latif. The accused then took out the plastic shopping bag kept beneath the sofa set in the same Drawing Room which contained a pair of shoes of deceased as well as a pair of blackish hand-gloves and a book on Banking Laws. The accused stated that the black pair of shoes were of the deceased. The name of Mandwiwala and Zafar was written on the book on Banking Laws. He produced the same in Court as Article P.11. He produced the jug and two glasses secured at the pointation of accused from the rented bungalow and the Orange Juice bottle containing some juice in it. He further produced Mashirnama of the recovery of jug, glasses, bottle of juice, shoes of the deceased, hand-gloves and book on Banking Laws, Exh.22. He further stated that thereafter the police interrogated accused and inquired from where he had purchased Potassium Cyanide. The accused volunteered to lead the police to the shop from where he purchased the said Potassium Cyanide. He led the police party and Mashirs to a shop on the Napier Road, in the name and style of Karachi Scientific Traders, saying that he had purchased the Potassium Cyanide from said shop. P.W. Muhammad Arshad owner of the shop was present there. He identified the accused and confirmed that some days earlier the accused had purchased the Potassium Cyanide from him. P.W. Muhammad Arshad further stated that the accused had introduced himself as Goldsmith and had stated that he was in need of Potassium Cyanide. He had purchased a bottle of Potassium Cyanide about 6/7 months earlier as well. The police prepared Mashirnama of the pointation of shop by the accused. This witness produced the Mashirnama, Exh.23. 12. In cross-examination the witness denied that keeping the telephone of complainant on observation is a sort of investigation but stated that it was a method of detection. He further stated that if police wishes to cite the workers of C.P.L.C., who are involved in the detection of some
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incident they act as witness and Mushirs. He denied that C,P,L,C, is a pro-Government or pro-police Organisation, He Stated that he was present at the time of arrest of accused being a member of C.P.L,C. And immediately after his arrest, the accused had disclosed about killing of deceased and voluntarily led them to the rented bungalow for recovery of dead body of the deceased, therefore, he acted as witness and Mashir. He further stated that even after detection, the C.P.L.C. Remains in touch with police, in the cases like the one in hand in order to…
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