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Petitioner: RAHAT ALI VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany, Sayed Saeed Ashhad Title: RAHAT ALI vs THE STATE Case No.:Criminal A.T.As. Nos.45, 46, 48 and 49 alongwith Confirmation Case No,18 of
JUDGMENT
Reported As: 2001 P Cr. L J 98 Result: Order accordingly Judgment JUDGMENT ' SARMAD JALAL OSMANY, J.--- These appeals are directed against the judgment of the learned Special Judge A.T.A. Court No,IV, Karachi, dated 18-6-1999 whereby all the appellants namely; Javed Ali, Rahat Ali, Muhammad Mubashir and Muhammad Sarfraz were convicted and sentenced to death for offences punishable under sections 365-A read with section 34, P.P.C. And under section 7 of the A.T.A., 1997. The appellants were further burdened with a fine of Rs,50,000 each and in case of default to suffer R.I. For one year. 1. The brief facts of the matter as per the F.I.R. Lodged in Crime No,105 of 1999 with Police Station New Karachi on 10-4-1999 at 2-30 a.m., are that the complainant's daughter Tooba aged about 16 months went outside his house to play on 9-4-1999 at about 2-00 p.m. And thereafter did not return. Then the complainant with the help of his brother-in-law started searching for his baby daughter. Meanwhile, Muhammad Anwar brother-in-law of the complainant received a telephone call from some unknown person who demanded a ransom of Rs,5 lacs for the return of the missing child failing which she would be killed. Thereafter, the complainant in consultation with his relations went to Police Station New Karachi and lodged the F.I.R. And nominated appellant Javed Ali as an accused. 2. Thereafter, the police started investigation and on the same date viz. 10-4-1999 arrested accused Javed Ali and at his pointation recovered the child from the possession of co-accused Rahat Ali, Muhammad Mubashir and Muhammad Sarfraz in an isolated but in Korangi No,2 and 1/2. Then all the four accused were challaned and sent up for trial. The charge was framed and pleas of the accused were recorded in which all of them pleaded not guilty and claimed to be tried. During
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the trial the prosecution examined complainant Muhammad Saleem at Exh.12, P.W. Muhammad Asghar at Exh.13. Inspector, Manzoor Hussain at Exh.14, P.W. Muhammad Anwar at Exh.16 and S.I.P. Syed Naeemuddin, the Investigating Officer at Exh:17, All the accused recorded their statements under section 342, Cr.P.C. Exhs. Nos.19 to 22 in which they have denied the case of the prosecution. 3. In support of his version accused Javed Ali examined his mother Mst. Razia Sultana at Exh.23 and his brother Shoukat Ali at Exh.24. Accused Rahat Ali examined defence witnesses Anwar and Mehfooz Khan at Exhs.25 and 26. Finally, accused Muhammad Mubashir examined in his defence his father Muhammad Shareef and one Muhammad. Shafique at Exhs.27 and 28. None of the accused examined themselves. Thereafter, the learned trial Court heard the arguments of all the learned counsel and passed the impugned judgment and hence the appeals. 4. On the above evidence recorded by the learned trial Court and the facts of the case Mr. Iqtidar Ali Hashmi learned counsel for the appellant Muhammad Sarfraz in Appeal No,45 of 1999 has argued that firstly no independent witnesses were associated with the recovery of the allegedly missing child which causes a shadow on the factum of recovery as well as its authenticity. Secondly, learned counsel has suggested that the police in their investigation of the case have shifted the burden as initially accused Sarfraz was released and made a witness and subsequently he was shown as an accused. Thirdly, learned counsel has submitted that there is a delay in lodging the F.I.R., which again creates some doubt as to the reliability of the same. Further, learned counsel has contended that the only reason that the learned trial Court has convicted the appellants is due to the preponderance of evidence which according to it existed in the matter for such conviction. However, only the prosecution's version has been considered and the cross- examination of the prosecution witnesses as well as the evidence led by the defence has not been given the evaluation which it deserves finally. Learned counsel has submitted that the ingredients of section 365-A, P.P.C. Have not been satisfied as there is only the statement of one witness to the effect that ransom was demanded and it has not been established that the child was kidnapped for the purpose of committing a heinous crime in which circumstances at the most the accused could be punished under section 365, P.P.C. For a maximum of seven years imprisonment alongwith fine. Learned counsel has also submitted, though weakly that the A.T.A. Court had no jurisdiction in the matter as although sections 365 and 365-A are included in the Schedule, the commission of the Terrorist Act i.e, Actus Reas must have some connection with the intention of the accused i.e, mens rea. Learned counsel has submitted that assuming the accused had committed the crime they certainly had no intention of creating terror, their motive at the most being to kidnap the child only. 5. In support of his contentions learned counsel has relied upon:-- ' Muhammad Afzal v. S.H.O. 1999 PCr.LJ 929, Sikandar v. The State PLD 1963 SC 17, Ruza Khan v. The State 1998 PCr.LJ 530, Mehmood Ahmed v. The State 1995 SCM R 127 and Mehram Ali v. The State 1998 SCM R 1156. 6. Mr. Mehmood Alam, learned counsel for the appellant Rahat Ali in Appeal No,46 of 1999 has submitted that in the statement of accused Rahat Ali under section 342, Cr.P.C. Stereotyped questions were asked. As regards recovery of the child from his custody Rahat Ali was merely confronted with such fact and no evidence was forthcoming in this connection. Similarly, the other questions asked of the said accused were in the same fashion and they were all denied by him. Learned counsel has submitted that the charge against accused Rahat Ali is defective since no evidence is available that the said accused kidnapped the child. Finally learned counsel has highlighted the factum of delay in lodging the F.I.R. Particularly when ransom was demanded and also when the minor child had been abducted, the neighbourhood people would have gathered together in order to sympathize and assist the complainant in recovering his minor child. Learned counsel has also submitted that the prosecutions' case has not been proved beyond any shadow
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of doubt which is the absolute requirement in criminal matters. In this connection learned counsel has invited our attention to the Mashimama of arrest of main accused Javed Ali whereby it has been recorded that he was arrested at about 3-00 a.m. On 10-4-1999 when he was coming from the Chorangi (roundabout). Learned counsel in this connection has also taken us through the deposition of complainant Muhammad Saleem as well as P.W.2 Muhammad Asghar who also have deposed in the foregoing terms. Both the said P.Ws. Have also deposed that thereafter, accused Javed Ali confessed to the crime and disclosed that the child was in the possession of the other co-accused namely; Muhammad Mubashir, Rahat Ali and Safraz Khan and that she was confined in Korangi Nos.2 and 1/2. Thereafter, the police party alongwith the complainant and other P.Ws. Went to the place pointed out by Javed Ali which was a small but behind Yousuf Textile Mills where all the co-accused were found sleeping with the abductee. 7. Learned counsel has submitted that the above story is hardly plausible as there is no reason why Javed Ali should come back to his house after having abducted the child. Secondly, it was quite strange that the minor child was found peacefully sleeping in the company of strangers. Finally, learned counsel has submitted that no explanation has been forthcoming as to why independent witnesses were not associated with the recovery. For the foregoing facts and reasons learned counsel has prayed that the impugned judgment be set aside and the accused be given their liberty. In support of his contentions learned counsel has relied upon the following case-law:-- ' Dur Muhammad v. The State 1994 M LD 1493, Hassan v. The State 1999 M LD 873, Kirir v. The State PLD 1996 Kar. 246, Hazzaro v. The State 1998 PCr.LJ 335, Yar Muhammad v. The State 1992 SCM R 96 and Umar Hayat v. The State PLD 1995 SC 526. 8. Mr. Fazlur Rehman Awan appearing for appellant Javed Ali and Muhammad Mubashir in Appeals Nos.48 and 49 of 1999 has vigorously attacked the impugned judgment as based on conjectures and misreading of the evidence on the record. In the first instance, learned counsel submits that there are a number of contradictions in the testimony of the various P.Ws. In this regard, learned counsel has referred to the examination-in-chief of complainant Muhammad Saleem who has stated that the appellant Javed Ali was arrested near his house whereas as per the memo. Of arrest Javed Ali was arrested in New Karachi at Saba Chorangi. In cross-examination Saleem has confirmed that Javed Ali was arrested near his house and not near Saba Chorangi. However, on the other hand, P.W. Muhammad Asghar supported the Mashirnama of arrest to the effect that Javed Ali was arrested at Saba Chorangi, New Karachi. Similarly, as per learned counsel, P.W. Muhammad Asghar has stated that after the arrest of Javed Ali the entire party went to the police station and then to the place of recovery whereas further on in his testimony this fact has been contradicted when the said P.W. Says that directly after the arrest the entire party went to the place of recovery. Again learned counsel has pressed that it is quite doubtful as to when and who prepared the memo. Of recovery. P.W. Muhammad Asghar says that his signatures were obtained on the said memo. Near the Police Mobile which was 150 yards away from the place of recovery. However, it is not clear as to who prepared the memo. As the person who prepared the same has not been examined. P.W.5 Syed Naeemuddin the Investigating Officer says that he prepared the memo. Of recovery whereas this has been contradicted by him since he has again changed his position when he admits that he had called a police constable from the police station for the purpose of preparing the memo. And has admitted that the memo. Was not in his handwriting. Again learned counsel says that the time in the memo. Of recovery is 4-50 a.m. However, P.W.4 Muhammad Anwar says that the child was handed over at 7-00 a.m. At the police station. Similarly, in the statement of P.W.4 the time is mentioned as 7-00 a.m. By the police. Further learned counsel submits that there are contradictions regarding the but from where the abductee was recovered. Complainant Muhammad Saleem says that two or three cots were present in the but but further on he has contradicted himself by saying that nothing was in the hut. The said P.W. Firstly maintained
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that there was only a solitary but from where the recovery was made but further says that there was a textile mill near the hut. Next learned counsel has submitted that it was quite doubtful as to who had lodged the F.I.R. P.W. Asghar says in his 164, Cr.P.C. Statement that Saleem was not the complainant but he alongwith Anwar and Akbar went to the police station. Again P.W. Anwar admits that Akbar lodged the F.I.R., which has been corroborated by Asghar. 9. Next learned counsel has submitted that as far as the issue of the telecard is concerned nothing has come on the record as to from whose possession the same was recovered. The telecard was not sent to any expert or Laboratory to ascertain whether it was in working condition and finally that the telecard itself was not produced in evidence. As regards further contradictions in the case, learned counsel has submitted that P.W. Asghar says that Javed Ali was with them in which circumstance it is quite strange as to how he was later on apprehended by the police. 10. Learned counsel has also submitted that the Roznamcha entry was not produced by the official witness from which it could be ascertained as to whether and at what time, the police left for the place of recovery. Finally learned counsel has submitted that there is enmity between the parties, since P.W. Saleem has admitted that at the instance of Asghar he gave the name of Javed Ali as a suspect whereas P.W. Asghar denies any enmity, between himself and Javed Ali and also denies that he persuaded Saleem to nominate him. ' For all these foregoing facts and reasons learned counsel has prayed that the impugned judgment be set aside. He has relied upon 1997 PCr.LJ 1037, Shaukat v. The State 1996 PCr.LJ 651, Tariq Pervez v. The State 1995 SCM R 1345 and Shamoon v. The State 1995 SCM R 1377. 11. On the other hand, learned A.A.-G. Has fully supported the impugned judgment. As regards the jurisdiction of the A.T.A. Court to try the case, learned A.A.-G. Has maintained that section 6(b) of the A.T.A. Act is applicable as the Act of kidnapping which is a scheduled offence has created a sense of fear and insecurity in the people of the area. Therefore, in the opinion of the learned A.A.- G. The A.T.A. Court had the jurisdiction to try the case and pass judgment. Secondly, learned A.A.-G. Has submitted that as regards the statement of the accused under section 342, Cr.P.C. Recorded by the learned trial Court, it was not defective as the questions put to the accused were neither evasive or stereotyped since the words "in furtherance of common intention" were used which implied that even those accused who were not nominated in the F.I.R. Had the intention to commit the crime in question. In this regard learned A.A.-G. Has also submitted that the charge was proper since it is to be framed at the first instance for taking cognizance of the case by the trial Court. As the charge was only based on the F.I.R. In the police report, it could not be a very comprehensive one. Even otherwise learned A.A.-G. Has submitted that a defective charge can be cured under section 365, Cr.P.C. 12. Learned A.A.-G.'s next contention is that the plea of enmity taken by the accused has not been sufficiently established. In this connection he has taken us through the cross-examination of complainant Muhammad Saleem wherein he has denied that Muhammad Asghar is the landlord of Javed Ali or that he ever issued any threat of dire consequences to accused Javed Ali if he failed to vacate the rented premises in question. Similarly, learned A.A.-G. Has referred to the cross- examination of P.W. Muhammad Asghar wherein he has, too, categorically denied that he had ever asked Javed Ali to vacate his house or that there was some quarrel between himself and Javed Ali over money matters whereafter the said P.W. Had issued threats of dire consequences. 13. Learned A.A.-G. Has next contended that section 103 of the Cr.P.C. Is not applicable in the circumstances of the case when the accused himself had led to the place from where the child was recovered. In this connection learned A.A.-G. Has also submitted that the abductee was recovered at 5-00 a.m. In the morning in a remote area where it was not possible to associate any independent witnesses. In support of these contentions learned A.A.-G. Has relied upon Mir
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Muhammad v. The State 1995 SCM R 614, Muhammad. Akbar v. The State 1995 SCM R 693 and Iqbal v. The State 1994 SCMR p. 1. 14. As regards the delay in filing of the F.I.R. Learned A.A.-G. Submits that this can be explained due to the fact that the F.I.R. Was lodged only after a ransom call was received and previously the P.Ws. Were all looking for the child. In this regard he has relied upon Amjid Mehmood v. The State 1998 SCM R 1718. Further it is submitted that P.W. Saleem in his cross-examination, has given adequate explanation for the delay as stated above and in this connection he has relied upon Jawad Ali v. The State 1995 SCMR 1305. As regards the guilt of the accused learned A.A.-G. Says that this has been adequately proved through the P.Ws. And in this connection he has referred to the cross- examination of P.W. Asghar where the recovery of the minor girl and the arrest of Javed Ali have gone unchallenged and also the fact that Javed Ali was last seen with her. So also he has referred to the examination-in-chief of complainant Saleem where his statement that Javed Ali was last seen playing with the baby girl has gone unchallenged as also the factum of the telephonic call and the recovery. Learned A.A.-G. Has also submitted that on the basis of last seen evidence the death penalty should be upheld as per Jafar Ali v. The State 1998 SCM R 2669. As regards the case of Sarfraz, learned A.A.-G. Has submitted that the opinion of the Investigating Officer and police are irrelevant for the purpose of establishing the guilt or innocence of the accused since the Courts have to scrutinise the evidence on the record and arrive at the correct conclusions and should not be influenced by such opinions and in this connection he has relied upon Nasir Abbas v. The State 1995 SCM R 1333. 15. Finally, learned A.A.-G. Has submitted that the technicalities of appreciation of evidence should be overlooked in cases of kidnapping for ransom as per the dictum laid down by the Honourable Supreme Court in State v. Farman Hussain PLD 1995 SC 1. 16. As regards the case of the other co-accused viz. Rahat Ali and Muhammad Mubashir, learned A.A.-G. Submits that they are both residents of Korangi and shared common intention with accused Javed Ali as per their statements under section 342, Cr.P.C. And also that recovery was made from them and hence they are equally liable for the crime in question viz. Kidnapping for ransom, which carries the death penalty under section 365-A, P.P.C. ' For all the foregoing facts and reasons, learned A.A.-G..,has prayed that the impugned judgment should not be interfered with and the death penalty confirmed. 16. We have heard all the learned counsel as well as learned A.A.-G. And our conclusions are as follows:-- ' Regarding the issue of the jurisdiction of the learned A.T.A. Court, it would be seen that sections 365 and 365-A of the P.P.C., which provide for punishment simpliciter and for kidnapping for ransom are mentioned in the schedule to the A.T.A. Act and consequently, in our opinion, it would be covered by section 6(b), of the A.T.A. Act, which defines a terrorist act, inter alia, to be one which strikes terror or creates a sense of fear and insecurity in the people. Kidnapping for ransom with which offence, the accused are charged is certainly an act, which would create such terror, fear and insecurity amongst the general populace. Consequently, the learned A.T.A. Court has correctly assumed jurisdiction in the matter. As regards the cases of Mehram Ali v. The State and Muhammad Afzal v. The State (supra) which lay down that mere commission of a terrorist act simpliciter would not bring such act within the purview of the A.T.A. Act but the said Act must have a co-relation with the intention of the perpetrator thereof, in our view both these cases were decided before section 6(b) and (c) of the A.T.A. Act were enacted, therefore, the ratio thereof would not apply in the present matter. As, per the newly added section 6(b) to the Act, the mere commission of terrorist act which has been described in the Schedule, whose effect is to either strike terror or is likely to strike terror or create a sense of fear and, insecurity in the people etc. Is
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enough to attract the jurisdiction of the A.T.A. Court. As held earlier, kidnapping with or without intent to demand ransom is one such act. 17. As regards the merits of the case, it would be seen that the alleged incident of kidnapping occurred during the day time and although no one saw accused Javed Ali kidnapping the minor baby, the fact remains that she was last seen in his company. It also appears that the baby was used to Javed Ali's company, he being the neighbour of the complainant Saleem. As much can be ascertained from the evidence on the record viz. Deposition of P.W. Saleem, and P.W. Asghar, who both maintained steadfastly that the minor was last seen playing with Javed Ali at about 2-00 p.m. On 9-4-1999, which is the day of occurrence. This assertion by both the P.Ws. Has not been controverted during their cross-examination and in fact no questions have been asked in this connection. Consequently, in our view the dictum of the Honourable Supreme Court regarding circumstantial evidence laid down in Khurshid v. The State PLD 1996 SC 306 and Jafar Ali v. The State (supra) are fully attracted to the facts of the present matter. ' Next it would be seen that as per the memo. Of recovery, the baby was recovered from the but at the pointation of accused Javed Ali and thereafter, she was given into the custody of complainant Saleem. It has come on the record that the but from where the baby was recovered was in a deserted area viz. Korngi Nos.2 and 1/2 and the time of recovery was at 5-00 a.m. In the morning from which it transpires that private witnesses were most probably not available. In any event as laid down in Mir Muhammad v. The State and Muhammad Akbar v. The State (supra) where the accused himself leads to the place of recovery there is no need of private witnesses. All the P.Ws. Including the complainant, P.W. Muhammad Asghar, P.W. Muhammad Anwar and P.W. S.I.P. Syed Naeemuddin have also steadfastly maintained that the baby was recovered from the but at the pointation of accused Javed Ali while she was soundly sleeping alongwith the other co-accused. Their version could not be shaken in cross-examination. There are some minor discrepancies as to the place from where Javed Ali was arrested, as to the fact whether the police party alongwith the complainant party directly proceeded to the place of recovery after arrest of accused Javed Ali or first went to the police station, the time when the recovery memo. Was prepared and the issue whether the but from where the baby was recovered was in totally an isolated area or whether there were some buildings around the said hut. However, as per the dictum of the Honourable Supreme Court laid down in State v. Farman Hussain (supra) minor discrepancies in the prosecution case can be overlooked, as in the present case, in view of weighty evidence available on the record to establish the guilt of the accused. Regarding the delay in registration of the F.I.R. Of about twelve hours in our view, in the circumstances of the case this has been sufficiently explained as it was quite natural for the complainant to first search for the baby and only go to the police once the ransom call had allegedly been made by the accused. In this regard reference can be made to the testimonies of complainant Saleem and P.W. Muhammad Asghar. In any event, delay is only one of the factors to be considered by a Court in coming to its conclusions and where other cogent evidence is available regarding the guilt of the accused, delay may not be considered. Reference in this regard can be made to Sheraz Akhtar v. The State 1995 SCMR 165. 18. As per the defence's version, D.Ws. Razia Sultana and Shoukat Ali who are the mother and brother of accused Javed Ali, on 9-4-1999 at about 9-00 p.m. P.W. Muhammad Asghar came to their residence and informed them about the missing baby and also that lie suspected accused Mubashir who was their relative as the culprit. When Shoukat Ali and Muhammad Asghar were talking accused hived Ali, came into the house from his duty whereafter Muhammad Asghar took Javed Ali with him on the pretext that they were going to the house of Mubashir in order to make enquiries. Thereafter, Javed Ali, was made to sit in the police mobile which was standing at a short distance from their house. Both the D.Ws. Have testified that there was some dispute between them and P.W. Muhammad Asghar regarding the house in which they lived which was on rent from
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Muhammad Asghar. So also, P.W. Anwar Khan and Mehfooz Khan have deposed that accused Rahat was arrested at about 3-00 a.m. On the night between 9-10 of April, 1999 from a Qawwali Mehfil, which was going on in their Muhallah. They have denied that he was arrested from the place of recovery viz. But near Yousuf Textile Mills, Korangi. 19. Similarly, accused Mubashir's father Muhammad Shareef has testified that on 10-4-1999 at about 2-30 or 3-00 a.m., the police came to his house when Mubashir answered their call who was then asked about accused Javed Ali and thereafter they abused and maltreated Mubashir and left. Then after some time again the police came to the house of D.W. Muhammad Shareef and enquired about Mubashir when they were informed by the D.W. That Mubashir was not present whereupon the police took his son Mudassir to the police station saying that he would only be released after Mubashir is produced by them. Then Muhammad Shareef took Mubashir…
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