Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: RASHID ASLAM and another VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Ghulam Qadir Leghari Title: RASHID ASLAM and another vs The STATE Case No.:Special Criminal Anti-Terrorism Appeals Nos. 5, 7 and Confirmation Case
JUDGMENT
Reported As: 2017 YLR 2052 Result: Appeal dismissed Judgment JUDGMENT NAIMATULLAH PHULPOTO, J.---Appellants Rashid Aslam and Arshad Nabi were tried by Mr. Ghulam Mustafa A. Memon, Judge, Anti-Terrorism Court, Hyderabad and Mirpurkhas Divisions at Hyderabad for offences under sections 365-A, 302, 34, P.P.C. read with sections 6/7 of the Anti-Terrorism Act, 1997, who found both appellants guilty. Vide judgment dated 06.02.2012, appellants were convicted under sections 302(a), 365-A, 34, P.P.C. read with section 7(a) and (e) of the Anti-Terrorism Act, 1997 and sentenced to death on both counts. Both accused were directed to pay fine of Rs.10,00,000/- (Rupees Ten Lac) each, to be paid to the legal heirs of deceased Abdul Sami as required under section 544-A, Cr.P.C. In case of default in payment of fine, accused were ordered to suffer 5 years' R.I. Moveable and immovable properties of both accused were confiscated to the Government. Trial Court made reference for confirmation of death sentence. 2. Brief facts of the prosecution case, which have occasioned this appeal, are that complainant owns cotton factory at Mirpurkhas. He had a son, namey, Abdul Sami, aged about 16/17 years, who was studying in First year in 'ZABST College, Mirpurkhas. Complainant left home on 05.12.2006 at 09:00 a.m. and went to his factory, while leaving behind his son Abdul Sami and other family members. Complainant returned home at 2200 hours, at that time his son Abdul Sami was not present. Complainant inquired from the family members about his son Abdul Sami and he was informed that Abdul Sami had left home at 04:45 p.m. and did not return back. Thereafter, complainant made call to his son on Cell No.0333-2986239 but it was switched off. Complainant telephoned his relatives and inquired about Abdul Sami but without any clue. On . 06.12.2006 at morning, complainant narrated the fact of missing of his son to his elder brother Nadeem and
---
## Page 2
cousin Abdul Hakeem. Search of Abdul Sami was made at different places but without any result. It is alleged that complainant was present at his cotton factory on 06.12.2006 at 1530 hours, he received a call on his PTCL No.874944 from an unknown caller. Complainant was informed by said caller that his son Abdul Sami was with them and complainant was required to make arrangement of ransom. Complainant went to the police station and lodged FIR against unknown persons. FIR was recorded by ASI Roshan Ali vide Crime No.230/2006 at Police Station Town Mirpurkhas under section 365-A, P.P.C. Inspector Muhammad Arif Bhatti, initiated investigation of this case. He recorded 161, Cr.P.C. statements of PWs Abdul Hakeem and Nadeem on 10.12.2006. He arrested accused Arshad Nabi and Imran from bus terminal Mirpurkhas on 12.12.2006. Investigation Officer recovered one mobile phone with SIM of UFone from accused Arshad Nabi in presence of mashirs Abdul Rehman and Imtiaz and prepared such mashirnama. SIM No.03333285609 was recovered from accused Arshad Nabi. On 12.12.2006 Investigation Officer had also arrested accused Rashid Aslam from Station Chowk Mirpurkhas in presence of the same mashirs and recovered mobile phone and SIM No.0304-2266955. Both accused were interrogated. On 14.12.2006 investigation officer along with his police staff and private persons, namely, Abdul Rehman and Imtiaz went to Police Station Darakhshan, Karachi along with both accused. SIP Munir Chandio of Police Station Darakhshan accompanied with them to the place where dead body of deceased Abdul Sami was thrown by accused. It was Khayaban-e-Iqbal, DHA Phase-VIII, Karachi and place was pointed out by both accused, separately. Such mashirnama was prepared in presence of the mashirs. SIP Munir Ahmed of Police Station Darakhshan showed photographs of dead body to the police party and private mashirs PW Abdul Rehman, uncle of deceased Abdul Sami identified the photographs and clothes of his nephew Abdul Sami. Investigation officer submitted an application before the learned Sessions Judge, Karachi South for exhumation of the dead body. Application was allowed. Medical board was constituted and concerned Magistrate was deputed. Investigation Officer took team of doctors and Magistrate Mr. Khushi Muhammad to the Edhi graveyard. Dead body was exhumed and medically examined by the doctors. During investigation, both accused pointed out the house in which deceased Abdul Sami was confined by them for ransom. Under the bed sheet, identity card of deceased Abdul Sami of ZABST College was also recovered. Investigation Officer secured the same and prepared such mashirnama in presence of mashirs Imtiaz and Abdul Rehman. Investigation Officer secured Rent-A-Car bearing No.ALW-138, used by the accused in the commission of offence. During investigation, accused had shown the place where they had thrown mobile phone, keys and purse of deceased Abdul Sami, such mashirnama was prepared. Investigation Officer recorded 161, Cr.P.C. statements of PWs Saad Hashmi, Moazam Iqbal, Muhammad Aqeel, Muhammad Azeem and Abdul Aziz on 21.12.2006. On 23.12.2006 Investigation Officer produced witnesses before Judicial Magistrate, Mirpurkhas for identification parade of the accused through these witnesses. Magistrate conducted identification parade of accused Arshad Nabi and Rashid Aslam and they were identified by the PWs, namely, Muhammad Aqeel, Abdul Aziz, Muhammad Azeem and Muhammad Qasim. Imran was let off by investigation officer on 18.12.2006. Investigation Officer sent blood samples of deceased and his parents for DNA report. Investigation Officer collected call data record. On the conclusion of investigation, challan was submitted by the Investigation Officer against accused Arshad Nabi and Rashid Aslam under sections 302, 365-A, 34, P.P.C. read with sections 6(2)(A) and 7 of the Anti-Terrorism Act, 1997. 3.Charge was framed against accused Arshad Nabi and Rashid Aslam on 16.01.2007 at Ex-4. Mr. Akhlaq Hussain Larik, Judge, Anti-Terrorism Court, found charge defective. On the application of S.P.P., Amended charge was framed against both accused at Ex-13. Accused pleaded not guilty and claimed to be tried. 4.At the trial prosecution examined Abdul Sattar (PW-1), Muhammad Azeem (PW-2), Muhammad Aqeel (PW-3), Muhammad Qasim (PW-4), Saad Hashmi (PW-5), Moizam Iqbal (PW-6), Abdul Aziz
---
## Page 3
(PW-7), Muneer Ahmed (PW-8), Tahir Aziz (PW-9), Dr. Qarar Ahmed (PW-10), Muhammad Asif (PW- 11), Abdul Rehman (PW-12), Capt. Dr. Farhat Hussain Mirza (PW-13), Roshan Ali (PW-14), Muhammad Asghar (PW-15), Dr. Syed Farhat Hussain (PW-16), Kamran Zafar (PW-17), Wiqar Hussain (PW-18), Zeeshan Hyder (PW-19), Mr. Nadeem Badar (PW-20), Mr. Muhammad Aslam (PW-21), Muhammad Tariq Khan (PW-22), Tharo Khan (PW-23), Muhammad Arif Bhatti (PW-24). Thereafter, prosecution side was closed at Ex-53. 5.Statements of accused Arshad Nabi and Rashid Aslam were recorded under sections 342, Cr.P.C. at Ex-55 and 56. Both accused denied the prosecution allegation. Accused Arshad Nabi stated that he was picked up by DSP on 19.12.2006 from Naval PHQ, Karachi. He denied the pointation of place where dead body of Abdul Sami was thrown. He has stated that he had never led the police to any showroom of rent-a-car. Accused Arshad Nabi in reply to question No.17 has answered that he was shown to the witnesses before identification parade and his photographs were also printed in the newspapers. He has also denied his confessional statement before the Magistrate. In a question why the PWs have deposed against him, he replied that he is the victim of personal grudge of DSP Qamar Ahmed, who had poisoned the complainant against him Accused Arshad Nabi did not examine himself on oath in disproof of prosecution allegations, however, he has examined witnesses in his defence. He pleaded his innocence and produced written statement at Ex-55/A. 6.Accused Rashid Aslam has also denied the prosecution allegations and claimed false implication in this case and stated that in fact he was arrested from his house, situated in Gulshan-e-Hadeed on 11.12.2006 by ASI Naeem Ashraf of Mirpurkhas. He has also denied that he led the police party to the showroom of rent-acar. He has also replied to question No.17 that witnesses had seen him before identification parade and his photographs were printed in the newspapers. In reply to question No.19, he replied that he was not produced before Magistrate at Digri for recording confessional statement but his signatures were obtained by the police on blank papers. He has also claimed personal grudge with DSP Qamar Ahmad and raised plea that said DSP had poisoned the complainant against him. Accused Rashid Aslam declined to give statement on oath in disproof of prosecution allegations. He has examined in defence DWs ASI Naeem Ashraf, Nayar Alam and Ahsan Ahmed Channa. In a question, what else has to say? He has adopted the written statement filed by co-accused Arshad Nabi. 7.Learned Judge, Anti-Terrorism Court, Mirpurkhas, after hearing the learned counsel for the parties and assessm ent of evidence, convicted and sentenced both appellants Arshad Nabi and Rashid Aslam to death as stated above. 8.We have carefully heard Mr. Abdul QadirHalepota, learned advocate for appellant Rashid Aslam, Mr. Muhammad Ashraf Qazi, learned counsel for appellant Arshad Nabi and Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh, assisted by Mr. Muhammad Ilyas Khan and Jameel Ahmed Rajper, learned counsel for the complainant and perused the evidence minutely. 9.Mr. A. Q. Halepota, learned counsel for appellant Rashid Aslam has raised the following contentions:-- (i) That conviction and sentence under section 302(a), P.P.C. is bad in law as prosecution witnesses were not subjected to Tazkiat-ul-Shuhood test before recording the evidence. (ii)That no sentence of fine can be imposed upon accused in case of their conviction under section 302, P. P.0 . (iii)That the dead body of Abdul Sami deceased had been completely de-composed and there was no material before the Trial Court to hold that the dead body recovered from the Defence area was that of Abdul Sami, deceased. (iv)FIR is delayed by at least two days. The explanation furnished was not plausible. (v)That statements of PWs under section 161, Cr.P.C. were recorded with inordinate delay, without plausible explanation.
---
## Page 4
(vi)That no separate identification parade of each accused through witnesses was held and joinf identification parade of both accused was not the requirement of the law. (vii)That memo of arrest of accused Rashid Aslam was false and fabricated. viii)That place of recoveries of dead body was on joint pointation of accused, where dead body was allegedly thrown by accused. Such piece of evidence cannot be termed as discovery as a consequence of information given by accused. ix)That it is the case of joint pointation of House No. 57/2, Phase-IV,Khayaban-e-Karachi, where deceased was confined for ransom. That recovery of the identity card from house No.57/2, Phase-IV, Khayaban-e-Karachi, on the pointation of accused was inadmissible in evidence. xi) That it was the case of joint pointation of the place near sea, where key of car and purse of deceased Sami were thrown by the accused. xii) (a) That confessions of accused Rashid Aslam and Arshad Nabi were involuntarily. (b)That Magistrate did not inform the accused that in case they refused to make confession, they would not be sent back to the same police. (c)That judicial confession of accused is inconsistent with prosecution case. xiii) That mashir of all the mashirnamas, except two, is real brother of complainant, namely, Abdul Rehman, co-mashir was Imtiaz Panhwar, who was an independent person but he was not examined by the prosecution at trial. That one tainted piece of evidence could not corroborate another piece of tainted evidence. That from Mobile No.0333- 2986239 call was made to the mobile of deceased Abdul Sami No.0333- 3286609 on 06.12.2006 at 1059 p.m. from Mirpurkhas. Mr. Halepota argued that a single circumstance creating reasonable doubt makes accused entitled to its benefit not as a matter of grace but as a matter of right Lastly, he argued that from the prosecution evidence, ingredients of sections 365-A, P.P.C. are also not satisfied. In support of his submissions he relied upon the following cases:-- 1.Muhammad Saleem v. The State (PLD 2002 Supreme Court 558) 2.Noor Muhammad v. The State and another (2010 SCMR 97) 3.Ghulam Qadir and 2 others v. The State (2008 SCMR 1221) 4.Rahat Ali v. The State (2010 SCMR 584) 5.Lal Pasand v. The State (PLD 1981 SC 142) 6.Imran Ashraf and 7 others v. The State (2001 SCMR 424) 7 Kirir v. The State (PLD 1996 Karachi 246) 8.Mst. Askar Jan and others v. Muhammad Daud and others (2010 SCMR 1604) 9.Naseem Akhtar and another v. The State (1999 SCMR 1744) 10.Bagh Ali v. Muhammad Anwar and another (1983 SCMR 1292) 11.Hakim Gul v. The State (PLD 1964 (W.P.) Peshawar 1) 12.Wazir and others v. The State (PLD 1960 (W.P.) Karachi 674) 13.Muhammad Yaqub v. The State (PLD 1969 Lahore 548) 14.Rukan Zaman v. Khizar Hayat and others (1988 SCMR 950) 15.Ahmad and another v. The State (1977 PCr.LJ 662 [Karachi]) 16.Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410) 17.Muhammad Akram v. The State (2009 SCMR 230) 18.Khurshid Ahmad v. Kabool Ahmad and others (PLD 1964 (W.P.) Karachi 356. 10. Mr. M.A. Kazi, learned advocate for accused Arshad Nabi, adopted the arguments of Mr. A.Q. Halepota, counsel for appellant Rashid Aslam. He further added that appellant was arrested from Naval PHQ Karachi. Mr. Kazi emphasise that mashir Abdul Rehman had identified the dead body on
---
## Page 5
the basis of clothes of the deceased and bandage on his leg but no bandage or injury was found in the postmortem examination report. Mr. Kazi, argued that prosecution case is highly doubtful. In support of the contentions, he has relied upon the following cases:-- 1.Muhammad Pervez and others v. The State and others (2007 SCMR 670) 2.Naqibullah and another v. The State (PLD 1978 SC 21) 3.Siddiqullah v. The State and another (PLD 2009 Peshawar 1) 4.Muhammad Sadiq and another v. The State (PLD 1960 SC [Pak] 223) 5.Amir Ali v. The State (PLD 1960 [W.P] Karachi 753) 11. Learned A.P.G., assisted by Messrs Muhammad Ilyas Khan and Jamil Ahmed Rajper, learned counsel for the complainant, made following submissions:-- (i)That deceased was lastly seen alive in the car of the accused by PWs Muhammad Aqeel, Abdul Aziz and Muhammad Azeem. Inference can reasonably be drawn that accused are responsible for the death of the deceased. (ii)The accused were arrested on 12.12.2006 from Mirpurkhas and led the police party to Karachi and separately pointed out place, where dead body was thrown in defence area and pointed out the house where the deceased was confined for ransom and identity card of deceased was recovered underneath the bed where Abdul Sami was murdered by way of strangulation. It is submitted that such recovery was based on the information furnished by both the accused to the 10. (iii)That discovery was based on the information furnished by both the accused to the 10, prior to said information place of throwing the dead body and place where deceased was murdered and his school card were recovered, were not known to anyone. It is argued that same can be used against accused under Article 40 of Qanune-Shahadat Order, 1984. (iv)That deceased was identified by his uncle PW Abdul Rehman on the basis of his clothes and photographs. (v)That chain of circumstances from the stage of last seen evidence till the death of victim have been established by conclusive evidence. (vi)That confession of accused was recorded after 14 days of their arrest would not be indicative of any doubt regarding their voluntariness. (vii)That call data has been produced in the evidence which proved that both the accused contacted complainant/father of deceased for ransom. (viii)Both the accused were identified by PWs in the identification parade held before the Civil Judge and Judicial Magistrate Mirpurkhas on 23.12.2006. (ix)That both the accused made confession before Civil Judge and Judicial Magistrate Digri on 24.12.2006 and it was voluntary. (x)That investigation officer had sent blood samples taken from the dead body and of parents of deceased. DNA report was positive. (xi)That medical evidence . reflected that deceased died unnatural death by asphyxia. (xii)That prosecution has succeeded to prove the motive against the accused of kidnapping the deceased for ransom. (xiii)Regarding defence plea it is argued that it has not been substantiated by cogent evidence. (xiv)That PWs had no motive to falsely implicate the accused in this heinous offence. (xv) Lastly, it is argued that though this is the case of circumstantial evidence, yet chain has not been broken. Each and every circumstance connects with each other and leads to the guilt of the accused. In support of their contentions, reliance is placed upon the following cases:-- 1.Saeed Ahmed v. The State (2015 SCMR 710) 2.Sh. Muhammad Amjad v. The State (PLD 2003 SC 704)
---
## Page 6
3.Ch. Muhammad Yaqoob and others v. The State and others (1992 SCMR 1983) 4.Muhammad Ishaq v. The State (2009 SCMR 135) 5.Talib Hussain v. The State (1995 SCMR 1538) 6.Hamid Mehmood and another v. The State (2013 SCMR 1314) 7.Ghazanfar Ali v. The State (2012 SCMR 215) 8.Nasrullah Khan and 2 others v. The State (2010 SCMR 881) 9.Ghulam Hussain Soomro v. The State (PLD 2007 SC 71) 10.Noor Muhammad v. The State (1999 SCMR 2722) 11.Ghulam Nabi v. The State (2007 SCMR 808) 12.Manjeet Singh v. The State (PLD 2006 Supreme Court 30) 13.Maj. (Reid.) Tariq Mehmood and others v. The State (2002 SCMR 1493) 14.Nazir Shehzad and another v. The State (2009 SCMR 1440) 15.Dr. Javaid Akhtar v. The State (PLD 2007 Supreme Court 249) 16.Khan Muhammad and others v. The State (2011 SCMR 705) 17.Javed lqbal and another v. The State (2012 SCMR 140) 12.After hearing the learned counsel for the parties, we have carefully perused the entire evidence. 13.Complainant Abdul Sattar deposed that on 05.12.2006, his son Abdul Sami disappeared from street in front of his house situated at Mirpurkhas. Complainant Abdul Sattar received a call in his factory from unknown caller on 06.12.2006. He was informed that Abdul Sami was with them and ransom was demanded from him. He was threatened not to inform anybody about kidnapping of his son. Complainant waited for another call of the culprits. On 09.12.2006 complainant lodged PIR of the incident at Police Station Town Mirpurkhas against unknown persons. On 10.12.2006, while hearing the news of disappearance of Abdul Sami, his class fellows came at his residence and informed the family members that Abdul Sami was talking with one Arshad on his mobile. Complainant was advised by family members to collect some information from those class fellows regarding Arshad. Complainant contacted Arshad through PW-11 Tariq. Tariq was class fellow of Arshad and he arranged meeting of complainant with father of Arshad.Thereafter,according to prosecution case, Arshad also met with complainant and disclosed that lmran and Rashid Arain made programme were scheduled to go to Mirpurkhas. Thereafter, Abdul Sattar contacted Imran. He denied about such programme. Complainant suspected the correctness of story narrated to him by accused Arshad and he came from Karachi to Mirpurkhas and informed the police about meeting with Arshad and Imran at Karachi and their evasive replies. P. W-2 Muhammad Azeem was residing in the same Mohalla where complainant resides. He informed complainant that on 05.12.2006 at about 05:00 or 5:15 pm he came out of his house and was going to Doctor, when he came in the street in front of the house of complainant he saw Abdul Sami talking with two boys at footpath of the house. Light golden color Alto car was also parked in the street. P.W-3 Muhammad Aqeel stated that complainant is related to him. On 05.12.2006, PW Muhammad Aqeel went to purchase a car and when he was returning from Tando Allahyar to Mirpurkhas. At 5:30 pm when he reached near Ratanabad, where he stopped car as traffic was jam. He saw a car there, wherein Abdul Sami was sitting in the car on front seat, one person was driving car and another was sitting on rear seat. He identified both accused in identification parade as well as before trial Court. He clearly stated that accused Arshad was driving car and accused Rashid Aslam was sitting on a rear seat. PW-7 Abdul Aziz was resident of same Mohallah where complainant resides. He has stated that on 05.12.2006 at 5:00 pm or 5:15 pm, he left home for recovery and saw two boys along with Abdul Sami sitting in one Suzuki light golden color car in front of house of complainant Abdul
---
## Page 7
Sattar. Abdul Sami sat on front seat of the car, one person was driving car and another person sat at the rear seat of the car. He identified both accused in identification parade and before trial Court. P.W-4 Muhammad Qasim had a Rent a Car business at Karachi. He deposed that on 04.12.2006 accused Arshad Nabi and Rashid came to his showroom and hired his car No. ALW-138. He obtained copy of CNIC of Arshad Nabi and he produced the same in evidence. He has stated that car was returned by both accused on 06.12.2006. It was damaged. He charged extra damages of Rs.8000/- from them. He identified both accused in Court. PW-5 Saad Hashmi student of ZABIST and class fellow of Abdul Sami deposed that on 05.12.2006, he had heard conversation of deceased Abdul Sami with one Arshad when he was accompanied with Abdul Sami -in his car. P.W-6 Mozzam Iqbal deposed that on 05.12.2006 he contacted Abdul Sami at about 8:00 pm from his Cell No. 0345-3702725 on the number of Abdul Sami Cell No. 0333-2986239 and enquired from him the number of his father Abdul Sattar. P.W Mozzam Iqbal found Abdul Sami sleepy/drowsy at that time. PW-18 Wiqar Hussain, Regional Manager, UFone has produced call data record at Ex.44/A showing that call was made from Cell Nos.0345-3702725 to Cell No. 03332986239. P.W-8 SIP Munir Ahmed of Police Station Darakshan deposed that on 11.12.2006 he was posted as Incharge Investigation Team of Police Station Darakshan. At about 10:30 am he received information that dead body was lying at Street No. 27, Khayaban-e-Iqbal, Phase-VIII, Defence, Karachi. He proceeded to the pointed place, where S.H.O. Ziaul Hassan Rizvi and ASI Kamran Zafar had already arrived. SIP Munir took photographs of the dead body through digital camera and produced such photographs in evidence at Ex.30-A and took dead body to the hospital for postmortem examination and report. PW-09 SIP Tahir Aziz deposed that on 11.12.2006 he was posted in Investigation Branch of Police Station Darakshan. Investigation of FIR bearing No. 547/2006 under section 302, P.P.C. lodged at Police Station Darakshan was entrusted to him. He visited place of incident and recorded 161, Cr.P.C. statements of P.Ws ASI Kamran Zaffar, Tahir Mirza and Khalid Hussain. PW-10 Dr. Qarar Ahmed deposed that on 15.12.2006 dead body was exhumed in presence of Magistrate. He was member of the medical board. He opined that death of the deceased was caused due to Asphyxia. PW-11 Muhammad Asif cousin of the deceased stated that in his presence, PW-12 Abdul Rehman uncle of deceased identified photographs of deceased Abdul Sami shown to him by police. P.W-12 Abdul Rehman acted as mashir of arrest and place where dead body was thrown by accused and mashir of place which was pointed out by accused. He also acted as mashir of a pointation of house where deceased was confined by the accused at Karachi and mashir of recovery of the I.D card of the deceased from the house underneath of the bed as well as mashir of identification of deceased through photographs. PW-13 Dr. Farhat Hussain Mirza has also opined that death of deceased was result of Asphyxia. PW-14 ASI Roshan Ali deposed that on 09.12.2006 he was posted as duty officer at Police Station Mirpurkhas, he lodged FIR of incident of complaint bearing Crime No. 230/2006 under section 365, P.P.C. against unknown accused. PW-15 SIP Muhammad Asghar of Motorway police deposed that on 05.12.2006, he was on patrolling duty at Superhighway near Nooriabad. At 9:05 am in between Nooriabad and Dadabhoy Cement Factory near Hescol Petrol pump, he found one car with high speed on Superhighway coming from Karachi. Car was stopped. Licence of driver Arshad Nabi was checked. He challaned the driver Arshad Nabi on account of high speed and imposed fine of Rs.750/- and obtained signature of Arshad Nabi on the challan. He produced the receipt in…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.