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Petitioner: SHAHZAD MASIH and 2 others VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Aftab Ahmed Gorar Title: SHAHZAD MASIH and 2 others vs The STATE Case No.: Special Criminal Anti-Terrorism Jail Appeal No,12 of 2009 Date of Judgment:2016-01-21 Reported As: 2016 YLR 1922 Result: Appeal dismissed
JUDGMENT
JUDGMENT NAIMATULLAH PHULPOTO, J.--- Through this appeal, we intend to dispose of Special Criminal Anti- Terrorism Jail Appeal No,12 of 2009 filed by Appellants Shahzad Masih, Nisar Ahmed and Munir Masih as well as Confirmation Reference No,01 of 2009 which arise out the judgment dated 14.02.2009 passed by learned Judge, Anti-Terrorism Court No,1, Karachi in Special Case No, 46 of 2007, whereby learned Judge has convicted the appellants under section 302/34, P.P.C. r/w section 7(a) of Anti-Terrorism Act, 1997 and sentenced them to death and imposed fine of Rs,50,000/- each. In case of default in payment of fine, it was ordered that appellants would undergo R.I. For 6 months more. Appellants Shahzad Masih, Nisar Ahmed and Munir Masih were also convicted under sections 365-A/34, P.P.C. r/w section 7(e) of Anti-Terrorism Act, 1997 and sentenced to imprisonment for life each and their properties were forfeited to the extent of Rs,1 lac each. Appellants were extended benefit of section 382-B, Cr . P. C . 2. Brief facts of the prosecution case as disclosed in the FIR are that on 03.10.2007, AS! Mashkoor Hassan of P.S. Baloch Colony received statement of complainant Muhammad Shahid alleging therein that he resides in Bungalow No,10-A/3, Phase-VI, Gulf Course No,5, DHA, Karachi. On 02.10.2007, his driver namely Irfan (now deceased) in Corolla Car bearing Registration No, AEM-921 left at 1:00 p.m. To Beacon House School to take his nephew Muhammad Raiyan from school, but did not return back to home till 2:00 pm. Complainant party started search and at 2:30 p.m., Mst. Sadaf (mother of child) telephoned to her driver on mobile but it was attended by some unknown person who disclosed that driver Irfan and boy Raiyan have been kidnapped for ransom and demanded Rs, 50 lacs for their return. Culprits asked Mst. Sadaf that he would call her after two hours and mobile
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was switched off by him. Complainant reported the matter to P.S. Frere. Thereafter, it 'is alleged that accused persons contacted Mst. Sadaf several times on her mobile and asked to make arrangement of the ransom till 9:00 pm. Deal was finalized for payment of Rs,4,92,000/-. It is alleged that culprits directed Mst. Sadaf to bring ransom near mosque at Express Way Furniture Market. The brother-in-law of the complainant namely Abdul Salam and Mst. Sadaf reached at pointed place with ransom of Rs,4,92,000/- at 9:30 pm. It is alleged that Mst. Sadaf was asked by the culprits to put ransom amount in front of furniture shop and proceed to the service road where she would get boy, car and driver. Mst. Sadaf went to the service road. She contacted the culprits on mobile. It was 9:45 pm when brother-in-law of complainant and Mst. Sadaf saw victim boy Raiyan weeping there, Mst. Sadaf again contacted culprits about driver and car, on which culprits replied that driver would reach safely to her house after two hours, then the mobile phone was switched off. Complainant party was informed by boy that when he was returning with driver in a car from the school and car reached at Frere Traffic signal at 1:30 pm, two persons appeared on motorcycle, who were armed with pistols. They demanded cash, mobile and key of the car from the driver to which driver refused. Thereafter, boy disclosed that culprits fired upon driver which hit him at his head. Boy was taken by the culprits on motorcycle and culprits gave him juice and boy slept and left him near mosque. Complainant received information that car has been parked under the Baloch Colony Bridge where dead body of his driver was lying. After receipt of such information, complainant contacted the police of PS Baloch Colony and police shifted dead body of driver Irfan to Jinnah Hospital. After postmortem examination, dead body was handed over to the legal heirs of the deceased. FIR was recorded vide Crime No, 222/2007 under sections 365A/302/34, P.P.C. On 03.10.2007. 3. After registration of FIR, investigation was carried out by SIP Tahir Naseer. He recorded statements of PWs Abdul Salam, Dr. Aamir, boy Raiyan and others under Section 161, Cr.P.C. PW Dr. Aamir identified Car No, AEM-921 Toyota Corolla of complainant party. I.O. Collected call data of mobile Nos.0322-3513432, 0345-6156318 and 0300-2689323. I.O. Also collected cassette containing conversation regarding ransom. Empty bullet was recovered from the car it was sent to the Ballistic Expert for report. I.O. Received spy information on 08.10.2007 that accused involved in this crime were present at graveyard of Azam Basti, I.O. Proceeded there, he apprehended accused in presence of mashirs. From the possession of appellant Nisar I.O. Secured one .30 bore pistol and four live bullets. From the possession of accused Shahzad, I.O. Secured one .30 bore pistol and three live bullets in presence of mashirs and prepared such mashirnama and from accused Munir Rs,50/- were secured. Appellants named above had no licenses for the weapons carried by them and cases were registered against them on behalf of State under Section 13(d) Arms Ordinance 1965 at PS Mehmoodabad. 1.0. Sent Arms to Ballistic Expert for report. During interrogation accused Shahzad and Nisar led the police party to house and produced two SIMs, used in the mobile phone during the commission of the crime. I.O. Secured the same in presence of mashirs and prepared such mashirnama. Accused Shahzad produced Rs,35,000/- before police lying under the mattress and also produced two SIMs which he had kept in a tea cup. I.O. Secured the same in presence of mashirs and prepared such mashirnama. On the pointation of accused Nisar I.O. Recovered Rs,40,000/- from a room, from black colored bag and he prepared such mashirnama in presence of mashirs. After usual investigation, challan was submitted against the accused before learned Administrative Judge, Anti-Terrorism Courts at Karachi under the above referred sections. Case was transferred to learned Judge, Anti-Terrorism Court No,1, Karachi for disposal according to law. 4. In order to prove its case, prosecution examined the following witnesses at trial:-- 1. P.W-1 Complainant Muhammad Shahid at Ex.5. 2. P.W-2 Raiyan Shah at Ex.6.
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3. P.W-3 Abdul.Salam at Ex.7. 4. P.W-4 Salam Khan at Ex.8. 5. P.W-5 Zakir Rahman at Ex.9. 6. P.W-6 Mr. Asif Ahmed Judicial Magistrate at Ex.10. 7. P.W-7 Dr. Jagdesh at Ex.11. 8. P.W-8 Dr. Aamir at Ex.12. 9. P.W-9 Imran Ahmed Qazi at Ex.13. 10. P.W-10 Waheed Iqbal at Ex.14. 11. P.W-11 SIP Ameer Afzal at Ex.15. 12. P.W-12 ASI Sardar Muhammad at Ex.16. 13. P.W-13 PC Khalil-ur-Rahman at Ex.17. 14. P.W-14 PC Syed Lal Hussain Shah at Ex.18. 15. P.W-15 SIP/I.O. Tahir Naseer at Ex.19. 16. P. W-16 Mrs. Sadaf Shah Khalid at Ex.29 Thereafter, prosecution side was closed at Ex.30. 5. Statements of accused were recorded under section 342, Cr.P.C. At Ex.22 to 24, in which accused claimed their false implication in this case and denied the Prosecution allegations. Accused further stated that they were shown to prosecution witnesses before identification parade and I.O. Had demanded bribe from them and on their refusal, they have been falsely challaned in the present case. Accused denied receipt of ransom from mother of victim boy and its recovery. However, accused Nisar Ahmed examined himself on oath under section 340(2), Cr.P.C. At Ex.25 in which he has raised plea that he was arrested by police from Rawalpindi on 08.10.2007 at 9:00 pm. Thereafter, he was brought to Karachi where he was maltreated by the police and falsely involved in this case. D.W Ghulam Mustafa at Ex. 26 has been examined in his defence. Accused Munir Masih also produced DW Daniyal in his defence. Thereafter, on the application of the prosecutor, P.W-16 Mrs. Sadaf Shah Khalid was examined at Ex.29 and further statements of all the accused were also recorded under Section 342, Cr.P.C. At Ex.31 to 33. 6. The learned Judge, Anti-Terrorism Court-I, after hearing the learned counsel for the parties and assessm ent of the evidence, convicted the appellants/accused and sentenced them as above. 7. The Trial Court made Reference to this Court for confirmation or otherwise of death sentences awarded to the appellants. 8. The appellants/accused being dissatisfied with the impugned judgment of the learned Trial Court, filed the aforesaid Criminal Appeal before this Court. 9. We have carefully heard the learned counsel for the appellants, learned APG for State and have perused the evidence minutely. Prosecution case is based upon following pieces of evidence: (i) Ocular evidence. (ii) Medical evidence. (iii) Kidnapping for ransom and receipt of ransom. (iv) Point anon of house from where sims used by accused in the crime were recovered. (v) Recovery of the empty bullet car. (vi) Positive Ballistic Report. (vii) Recovery of ransom. (viii) Pointation of the place from where boy was kidnapped for ransom. (ix) Call data record. 10. The sole point for determination in this appeal is, whether the appellants were rightly convicted for the offences with which they were charged? 11. In order to prove the unnatural death of driver Irfan, prosecution has examined PW-7 Dr. Jagdesh, MLO Jinnah Hospital, Karachi. Medical officer deposed that on 03.10.2007, he was posted as MLO JPMC. On the said date SIP Ameer Afzal brought dead body of Wan son of Toor Khan for
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postmortem examination he conducted the postmortem of deceased, who was male Muslim aged about 28 years, average built, rigor mortis fully developed, features identified, no sign of decomposition, tongue inside the mouth, pupils fixed and dilated. Medical officer found the following injuries on the person of deceased: i) Lacerated punctured wound 1 c.m in diameter on right parietal region, inverted margins, wound of entry. ' Lacerated punctured wound 2 cm in diameter on left parietal region, everted margins, wound of exit. 'HEAD ' Vault of skull fractured, right parietal bone and left parietal bone, sutures and meninges damaged, brain matter damaged, cavity full of blood. 'NECK ' All the structure intact, no any abnormality detected in neck or anyway. 'THORAX ' Ribcage intact, both lungs intact and congested, heart intact and congested, no abnormality detected. 'ABDOMEN Stomach contained digested food material and small intestine contained semi-digested food particulars, liver spin kidney are intact and congested, no any abnormality detected in abdominal cavity. Time between injuries and death within 1 minute, time between death and post mortem 1 to 2 days. ' The Medical Officer was of the opinion that death of deceased occurred due to cardio respiratory failure due to acute haemorrhagic shock and acute head injury resulting from firearm weapon. Medical officer issued such death certificate. 12. Learned Advocate, for appellants did not dispute unnatural death of deceased. We, therefore, hold that deceased died his unnatural death as described by Medical officer. Prosecution Evidence 13. P.W-16 Sadaf Shah Khalid has narrated the entire episode of incident being mother of boy Raiyan Shah and stated that on 02.10.2007 her son Raiyan Shah went to Beacon House School situated at Clifton at 8:00 am with driver Irfan in Corolla Car No, AEM-921. The same driver went to Beacon School to bring home above named child froni the school at 1:15 pm. Driver did not bring the child to the home upto 1:45 pm. Mst Sadaf made a call to her driver but it was not responded. She was worried as her husband was also out of country. She called her brother-in-law namely Shahid and informed him that her son Raiyan has not reached at home from school. Again Mst. Sadaf dialed mobile of the driver but it was attended by one unknown person, who told Mst. Sadaf that her son and driver have been kidnapped for ransom and demanded ransom of Rs,50 lacs. In the meanwhile, she stated that her brother-in-law came at her house and incident was narrated to the relatives and CPLC. Thereafter, CPLC officer came at the residence of Mst. Sadaf Shah and handed over her instrument/device for recording the conversation with culprits on cell. Thereafter, Mst. Sadaf received two calls on her Cell No, 0300-2689323. She also received calls from different numbers. Lastly, at 9:00 pm, ransom/ deal was finalized by the culprits with Mst. Sadaf in the sum of Rs,492,000/- and they asked Mst. Sadaf to bring ransom at Expressway, Manzoor Colony. Thereafter, she along with her sister's husband namely Abdul Salam went to the pointed place and she was asked by the culprits to put the ransom amount in front of the furniture shop and move forward on the same road, where she would find her son at some distance. She did not find her son therefore, she again gave call on the mobile of culprits, who asked her that she should return back towards the same furniture shop. She returned back and found her son was standing near Ghousia Masjid. Mst. Sadaf called kidnappers and enquired about the driver and car, on which they replied
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that she would get the car and driver soon, thereafter, they switched off their mobile phone. Mst. Sadaf returned to the house with her child. On the next day, her brother-in-law P.W- Shahid informed her that dead body of driver has been found in a car. In the cross-examination, she has denied the suggestion for deposing falsely. 14. P.W-1 Muhammad Shahid has deposed that victim Muhammad Raiyan is his nephew. Present incident occurred on 02.10.2007. On the same day driver Irfan had taken the nephew of complainant to the school and went to pick child to home at about 2:00 pm, but driver and child did not return home. Thereafter, Mst. Sadaf contacted the driver but call was attended by one of the culprits, who demanded ransom of Rs,50 lacs. He has stated that mother of Raiyan namely Mst. Sadaf received several calls for ransom and at 9:00 pm deal was finalized in the sum of Rs,492,000/-. Thereafter, Mst. Sadaf along with Abdul Salam proceeded to the pointed place and put ransom in front of the furniture shop and found boy weeping on the road. The sister-in-law of the complainant again contacted the culprits for return of driver and car, they kept her on false hopes. On 03.10.2007, complainant received a call from P.S. Baloch Colony that car and dead body have been found under the bridge of Baloch Colony. Complainant reached at Jinnah Hospital where dead body of driver Muhammad Irfan was lying. He lodged such report and produced it at Ex. 5/A. After postmortem examination of the deceased dead body was handed over to his cousin namely Zakir Rahman. In the cross-examination, he has denied the suggestion for deposing falsely against accused. 15. P.W-2 Raiyan Shah victim boy, who was kidnapped for ransom, aged about 6-1/2 years, at the time of his examination by the trial Court. He has deposed that in the month of Ramzan, he went to the Beacon House School with his driver Irfan in the morning. After school hours, he was returning in the car with driver and when the car reached at signal, two persons sat down in the car. Both the culprits aimed guns to him and directed driver to follow their instructions. Culprits asked driver to proceed to the bridge and they fired upon driver Irfan. Trial Court in the deposition has recorded note that boy Raiyan Shah identified accused Shahzad that he had fired upon driver. Thereafter, car was driven to the bridge and shirt of boy was blood stained and it was changed by culprits. He was taken to the house on motorcycle where they gave him water to drink and he slept. When he woke up culprits left/released him near mosque. Child witness clearly stated that person who was standing on the left side was sitting in the car and child witness pointed out accused Nisar Ahmed who was sitting in the car while accused standing on the right side came on motorcycle and took him to the house on motorcycle. In the cross-examination, child witness innocently replied that he has been tortured and accused were shown to him in the Court and he came three times in the Court for evidence. However, child witness has denied the suggestion that he was deposing falsely at the instance of some body and has categorically stated that whatever happened with him in the month of Ramzan, he has deposed true facts. 16. P.W-3 Abdul Salam has stated that on 02.10.2007, he came to know about incident at 3:00 pm. He went to the house of Shah Khalid and he saw that family of boy was negotiating with culprits on mobile phone. Culprits demanded Rs,50 lacs but finally amount of Rs,492,000/- was settled. Thereafter, he along with Mst. Sadaf proceeded to Baloch Colony furniture market. On the way, Mst. Sadaf and culprits were in contact and the culprits asked to put the ransom in front of the door of one furniture shop and proceed ahead, they saw boy weeping near Ghousia Masjid. On the next day, he came to know that car has been found by the police under Baloch colony bridge in which there was a dead body of driver. He went to Baloch Colony bridge, where police had already reached and saw one empty bullet lying in a car. In the cross-examination, he has denied the suggestion for deposing falsely against accused at the instance of the police. 17. P.W-4 Salam Khan stated that on 03.10.2007 at 12:00 noon he received information from Zakir Rahman that driver Irfan has been murdered and his dead body was lying under the bridge of
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Baloch Colony. He further disclosed that police had taken dead body to Jinnah Hospital. P.W. Salam Khan went to Jinnah Hospital where he met Zakir Rahman, Ameer Zada and Shahid; He saw dead body of Irfan. He produced inquest report at Ex.8/B. Thereafter, dead body was handed over to Zakir Rahman in his presence. 18. P.W-O9 Imran Ahmed Qazi has stated that on 02.10.2007, he was going from his office situated at Airport towards his house via Jinnah Hospital road and when he reached near Lili Bridge, there is road signal. At that time, he stopped his car and saw one white corolla car on left side. He saw one person was standing near car he forcibly asked driver to go on the back seat of the car. He also saw two more persons, one of them carrying gun aimed it at driver. Second sat on the driver seat when driver came on back seat and third one was on motorcycle and he followed the car, driven by the culprits. He identified accused persons and stated that accused, who pointed pistol was Shahzad and second accused was Munir who was on motorcycle and third one was Nisar who was driving car. There was a kid/boy in the car who was wearing white colored shirt and was sitting on the rear seat of the car. He thought that it was car snatching or mobile snatching incident. He noted down the number of car in his mobile, it was AEM-921. On 04.10.2007, he read in the newspaper that car has been found abandoned by the police with above mentioned registration number under the bridge of Baloch Colony, in which one dead body has been recovered. He then informed the incident which happened before him to the police of PS Frere. Police recorded his statement. He identified accused persons in the identification parade before Magistrate. In the cross-examination to learned counsel for the appellants, he has denied the suggestion that he was deposing falsely. 19. P.W-08 Dr. Aamir has deposed that on 02.10.2007 at 5:30 p.m., he was going from Tariq Road to his clinic situated in Azam Town in his car. When he reached near Manzoor Colony Chowk in front of Friends CNG Station, one car blocked his way. He gave horn but the car driver did not give him way. After 2/3 minutes car started. He talked with driver. He saw two persons in the car one was sitting on driving seat and another was sitting beside him. He saw both persons clearly. Dr. Aamir has stated that he was abused. Driver was wearing Shalwar and Qamees and other was wearing pant shirt. P.W- Dr. Aamir identified accused Nisar Ahmed as driver of the car and identified second one as Shahzad, who was sitting near the driver seat. He had seen broken glass of car on rear seat. On the next day, when he was coming from Mehmoddabad and was going towards Baloch Colony, when he reached near Sheerin Palace Bakery, he saw crowd standing there. He stopped his car and inquired from the people. Who had gathered there and came to know that dead body has been found in the car. He went to the car and was shocked to see that it was the same car which was seen by him one day before. Police recorded his statement and he identified accused before the Magistrate in identification parade and identified the car in the court premises. In the cross- examination he denied the suggestion that he was deposing falsely. 20. P.W-06 Mr. Asif Ahmed Memon Judicial Magistrate-X, Karachi South has deposed that on 10.10.2007, I.O. Submitted application before him for conducting identification parade of accused Shahzad Masih son of Yousuf Masih, Munir Masih son of Sharif Masih and Nisar Ahmed son of Siddique in FIR No, 222/2007 registered at P.S Frere. He held identification parade on 11.10.2007 through P.Ws Dr. Aamir and Imran Ahmed Qazi, after completing formalities. Both P.Ws identified the accused persons. He prepared such identification parade memo in presence of the mashirs. In the cross-examination Magistrate has denied the suggestion that no identification parade was held in his office and the mashirnama was prepared by the I.O. 21. P.W-11 SIP Ameer Afzal stated that on 03.10.2007 he was posted as SIP at Baloch Colony PS. On that day at 10:30 am he received information from 15 Jamshed that a car has been parked under the Baloch Colony bridge bearing No,AEM-921 Toyota Corolla wherein dead body was lying. On receiving such information, he went there and found a car wherein dead body was lying. He called
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Edhi Ambulance and shifted dead body to Jinnah Hospital. He referred dead body to MLO, JPMC for postmortem examination and report. He recorded statement of complainant Muhammad Shahid. As from the statement of complainant place of incident related to PS Frere, copy of 154, Cr.P.C. And other papers were sent to PS Frere for further investigation through ASI ,Mashkoor Watoo. SIP secured one used bullet of .30 bore pistol from rear seat of the car in presence of mashirs. He saw rear seat cover was blood stained. He prepared such mashirnama. He further stated that PW Aamir appeared and disclosed that he had seen car in which two persons were sitting at about 05:30 pm. He got address of Dr. Aamir and handed Over to I.O. PW SIP Ameer Afzal has denied suggestion in cross-examination for deposing falsely against the accused. 22. P.W-12 ASI Sardar Muhammad has stated that on 08.10.2007, he was called by SIP Tahir Naseer who accompanied him for investigation of above crime. Accused persons involved in this case were already arrested. Accused Nisar and Shahzad led police party to the house situated at Katchiabadi, Marwat Road, Street No, 10 and on their pointation police entered into the house and from one room accused Shahzad Masih produced Rs,35,000/- lying under mattress and also two mobile SIMs lying in a cup. Accused Nisar produced Rs,40,000/- from one black coloured bag. He has further stated that accused Munir led police party to his house situated in Azam Town from where he produced Rs,25,000/- lying under mattress and school bag containing school books, shirt and water bottle. He has further deposed that accused led police party a tone shop Al Habib Furniture and disclosed that they had picked up ransom amount in front of the shop put by the complainant party. Such mashirnamas were prepared. He has also stated that accused had also pointed out the place of payment of ransom. Accused also led the police to the place where they had left car after killing driver. He has further deposed that accused also led the police.Party to the Frere signal from where they had kidnapped child and driver with car and mashirnama of place of wardat was prepared. He was also cross-examined at length. He has denied the suggestion that he was deposing falsely at the instance of I.O. He has also denied the suggestion that no amount was produced by the accused. 23. P.W-13 Khalil-ur-Rahman has acted as mashir regarding arrest of accused persons and recovery of arms. He stated that on 08.10.2007, SIP Tahir Naseer 1.0. Took him for investigation in the police mobile at 2:00 pm. Police party reached at Azam Basti and entered in a graveyard where they found three culprits namely Shahzad, Munir and Nisar. Police arrested them and took personal search of accused and recovered one pistol and 3 live bullets from accused Shahzad, one NIC from accused Munir and one pistol and 4 live…
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