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Petitioner: TARIQ HAMEED PARACHA and others VS Respondent: DANISH AHMED and another
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Muhammad Karim Khan Agha Title: TARIQ HAMEED PARACHA and others vs DANISH AHMED and another Case No.:Special Criminal Anti Terrorism Acquittal Appeal No. 41, Special Criminal
JUDGMENT
Reported As: 2019 YLR 2246 Result: Order accordingly Judgment JUDGMENT . MOHAMMAD KARIM KHAN AGHA, J.---Appellants Muhammad Murad Mateen son of Muhammad Mateen, Adeel Ahmed son of Jameel Ahmed, Muhammad Aqeel son of Jameel Ahmed and Danish Ahmed son of Ahmed Khan have preferred these appeals against the impugned judgment dated 10.05.2014 passed by the learned Special Judge Anti-T errorism Court No,II, Karachi in Special Case No,B-71/ 2012, FIR No,86/2012 under sections 365- A/302/34, P.P.C. read with section 7 of ATA, 1997, Police Station North Nazimabad, Karachi, FIR No,27/2012 under section 13(d) Arms Ordinance, PS (AVCC) Karachi, FIR No,28/2012 under section 13(d) Arms Ordinance, PS (AVCC) Karachi whereby the appellants have been convicted and sentenced as under:- (i) The accused Muhammad Murad Mateen son of Muhammad Mateen, Adeel Ahmed son of Jameel Ahmed, Muhammad Aqeel son of Jameel Ahmed are convicted under Sections 7(a) and 7(e) of ATA, 1997 on two counts of kidnapping for ransom and murder under sections 365-A and 302 of P.P.C. They are to be hanged by neck till death subject to confirmation by the Hon'ble High Court of Sindh, Karachi, with fine of Rs,2-lacs each, to be paid to the legal heirs of Uzeyfa as compensation. As to the recovery of unlicensed pistol from accused Muhammad Murad and Adeel Ahmed is proved. Accused Muhammad Murad is sentenced R.I. for 07 years and accused Adeel is also sentenced R.I. for 07 years. (ii) The accused Danish Ahmed son of Ahmed Khan is convicted Rigorous Imprisonment for 10 years under Section 7(e), subsection (2) of ATA, 1997 as amended by Gazette Notification dated 26th of March, 2013 Act No. XX of 2013 Anti Terrorism Act, 1997. He is given benefit of Section 382(B), Cr.P.C. He is also fined with Rs,20000/- to be paid to legal heirs of Uzeyfa in failure to do so to undergo Rigorous Imprisonment for 06 months more.
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2. The facts of the case as per FIR No,86/2012 were that the complainant lives with his family in House No,A-499 Block-H, North Nazimabad, Karachi and does private business along with his brother Aamir . On 27.01.2012 at about 7:15 pm when the complainant reached home his brother and sister-in-law (bhabi) told him that his nephew Uzeyfa Aamir Paracha aged 11 years had gone out of the house at about 5 pm but has not returned home. Upon which he called the family members and started looking and searching for the missing Uzeyfa amongst the relatives and friends but there was no clue of his whereabouts. In the evening at about 7:50 pm the complainant went to Hyderi Market Police post and by entry No,18 registered the missing report of his nephew . The same night his Bhabi had received a phone call on her mobile phone from phone No,021-38231443 demanding Rs,15-Lacs as ransom for the release of Uzeyfa. Since then they had contacted CPLC and thereafter lodged FIR. His case was against the unknown accused person for kidnapping his nephew Uzeyfa Aamir Paracha for ransom. 3. The investigation was referred to AVCC Garden for investigation which was given to I.O. Tahir Naseer . During investigation he found out that maternal uncle Muhammad Ismail of abductee Uzeyfa had given Rs,6-lacs ransom amount on 07.02.2012 within the jurisdiction of Police Station Alfalah to 3 accused persons. He had prepared the memo of place of giving ransom amount and was in constant touch with CPLC people as well as the complainant. The accused persons were demanding more ransom amount from Muhammad Ismail the maternal uncle of the kidnapped child Uzeyfa on mobile No,0333-3085478 which was in the use of mother of Uzeyfa. Muhammad Ismail dealt with the ransom negotiations with the accused from the mobile number of his sister . As the accused could not be arrested therefore report under sectio n 168, Cr.P.C. under A class was approved by the Court on 15.03.2012. On 17.03.2012 ASI Iftikhar and members of CPLC had arrested two accused Muhammad Murad and Adeel who had come to take more ransom from Muhammed Ismail and at the time of their arrest from each of the accused person 30 bore pistol was recovered whereas from accused Murad the mobile phone Nokia from which SIM number 0323-2498124 was recovered and from this very SIM the accused had demanded ransom amount from Muhammad Ismail the maternal uncle of kidnappee Uzeyfa. A case under section 13-(d) of Arms Ordinance was registered against the two accused persons. These two accused were interroga ted and both of them admitted during investigation that they had kidnapped Uzeyfa Aamir Paracha and on 28.01.2012 and had killed him by suffocating him by putting a pillow over his face and had put the dead body in a suitcase and had thrown the dead body under the bushes in waste at a vacant plot in Ahsanabad double road Gulshan-e-Maymar . On their pointation the dead body of Uzeyfa Aamir and his shoes were recovered on 17.03.2012. The dead body of Uzeyfa was sent to Jinnah Hospital for postmortem wherea fter it was handed over to his legal heirs. On 19.03.2012 at the pointation of accused Adeel, the memo of place of kidnapping and thereafter memo of place of murder was prepared. Arrested accused nominated Muhammad Adeel and Danish Ahmed as being there accomplices and both these accused Muhammad Adeel and Danish were arrested on 26.03.2012 and motorcycle No,KES-4744 used in the crime was taken into custody . On 29.03.2012 the identification parade was held before the 12th J.M Central, where Muhammad Ismail had identified the three accused Danish, Muhammad Murad and Muhammad Aqeel who had taken the ransom amount from him. After completing the investigation challan was submitted before the Court on 17.04.2012. 4. Thereafter charge was framed against the four accused namely Muhammad Murad, Adeel Ahmed, Muhammad Adeel and Danish Ahmed on 19.07.2012 in which they pleaded not guilty and claimed trial of the case. 5. In order to prove its case the prosecution examined 11 PW's who exhibited various documents in support of the prosecution case whereafter the prosecution closed its side. 6. PW-01 is SI Muhammad Razak at Ex.P/1, had produced FIR as Ex.P/2 and the entry No,61 by which he had entered FIR in the roznamcha as Ex.P/3. PW-02 is J.M. Asghar Ali of District Central at Ex.P/4. He produced sealed envelop containing identification parade as Ex.P/5 and the identification parade itself as Ex.P/6. PW-03 is Tariq Hameed Paracha at Ex.P/7, he produced entry No,18 through which he reported the missing of his paternal nephew at the PS as Ex.P/8 . PW-04 is Muhammad Ibrahim at Ex.P/9. He has produced memo of recovery of dead body of Uzeyfa as Ex.P/10, inquest report as Ex.P/1 1 and memo of inspection of dead body as Ex.P/12 and receiving of dead body of Uzeyfa as Ex.P/13. PW-05 is Aamir Hameed at Ex.P/14 who is the father of the kidnapped Uzeyfa. PW-06 is Muhammad Ismail Paracha at Ex.P/15 who paid the initial ransom and identifie d 3 of
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the accused at the identification parade. He has produced the memo of place of abduction as Ex.P/16, memo of payment of ransom as Ex.P/17, memo of place of kidnapping and place of murder and recovery by which Uzeyfa was murdered as Ex.P/18, he had produced notices given to him for identification parade of the accused persons as Ex.P/19. PW-07 is ASI Rizwan Akram at Ex.P/20, he has produced memo of arrest of two accused Murad and Adeel as Ex.P/21, he had produced Ex.P/22 memo of arrest of accused Aqeel and Danish. PW-08 is ASI Iftikhar Hussain at Ex.P/23. He produced departu re entry No,60 as Ex.P/24 produced FIR No,27/2012 as Ex.P/25 against accused Muhammad Murad and FIR No,28/2012 against accused Adeel Jameel as Ex. P/ 26, he has produced his arrival entry No,66 at AVCC as Ex.P/27. PW-09 is SIP Ashraf Ali at Ex.P/28, he produced memo of receiving call detail report as Ex. P/29 and the call detail itself as Ex.P/30. PW-10 is Jagdesh Kumar medicolegal Officer at Ex.P/31 he has produced postmortem report as Ex.P/32 of Uzeyfa and he produced final medical opinion as Ex.P/33. He also produced the applicatio n given to him for conducting postmortem as Ex. P/34. PW-11 is SIP/IO Tahir Naseer at Ex.P/35. He has produced the order for conducting investigation as Ex.P/36. He has produced departure entry from AVCC as Ex.P/37. He has produced his arrival entry as Ex.P/38. He produced departure entry No,96 from AVCC for recovery of dead body as Ex.P/39 and arrival entry which was entered by ASI Rasheed when he brought the two accused persons back at AVCC as is Ex.P/40. He has produced his arrival entry No,16 at AVCC as Ex.P/41. He has produced departure entry No,58 which he produced as Ex.P/42 when he went to Flat No,603 Snober Heights, he has produced arrival entry No,64 at AVCC as Ex.P/43, he has produced his entry No,44 by which he departed from. AVCC as Ex.P/44 along with accused Adeel. He has produced arrival entry No,46 of the arrest of the two accused Danish and Aqeel at AVCC as Ex.P/45. He produced the order of JM-12 as Ex.P/46. He has produced the notices given to 3 accused Aqeel, Danish and Murad as Ex.P/47, Ex.P/48 and Ex.P/49 respectively for their identification parade. He had deposited the last worn clothes to the chemical examiner which he produced as Ex.P/50. He had produced the application given to the Court as Ex.P/51 seeking more time to submit challan. He had filed an application for call detail report which he produced as Ex.P/52 to CPLC. He has produced departure entry No,17 as Ex.P/53 and his .arrival entry at Ex.P/54. He had produced report of chemical examiner as Ex.P/55. Prosecution closed its side as Ex.P/56. 7. Thereafter , accused persons recorded their statements under section 342, Cr.P.C. whereby they claimed their false implication in the case. However , statement on oath of accused Danish Ahmed was recorded at Ex.D/1. He has produced the attendance of Mamji Hospital at Ex.D/2. The statement of accused Muhammad Murad recorded on oath as DW-2 at Ex.D/3. Statement of accused Muhammad Aqeel was recorded on oath as DW-3 at Ex.D/7 as well as statement of Adeel Ahmed on oath was recorded as DW-4 at Ex.D/8. Accus ed Adeel Ahmed also produced one witness namely Amjad Ahtesham whose statement was recorded as DW -5 at Ex.D/10. 8. Learned Judge, Anti-T errorism Court-II, Karachi, after hearing the learned counsel for the parties and assessment of evidence available on record, by the impugned judgment convicted and sentenced the appellants as stated above, hence these appeals have been separately filed by each of the accused. By this common judgment we intend to decide the same. 9. At this juncture it is worth mentioning that Tariq Hameed Paracha the complainant in the FIR under which the appellants were convicted has filed an appeal against acquittal of the appellant Danish under section 7(a) ATA 1997 read with section 302, P.P.C. and has also sought the enhancement of Danish's sentence from 10 years RI to the death penalty like the other appellants . This judgment shall also decide this appeal against conviction and enhancement of sentence in the case of Danish. 10. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition although we shall discuss some of the key aspects of the same in deciding these appeals. 11. In a nutshell the case of the prosecution is that on 27.01.2012 Amin Hameed (PW 5) the father of 11 year old Uzeyfa came home at about 6.15 p.m. and was told by his wife that Uzeyfa had gone out to play but had not returned home. Whereupon he went searching for his son along with some relatives but without success. His elder brother Tariq Hameed (PW 3) and the complainant) then went to the PS and lodged the missing report of Uzeyfa on the same day. At about 10.30 p.m. on the same day the wife of Tariq Hameed received a call on her mobile
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0333 3085478 which was received by Tariq's brother in law Muhammed Ismail (PW6) who was informed that Uzeyfa had been kidnapped by the accused who had demanded 15 lacs as ransom for his safe return. After negotiations between Ismail and the kidnappers a final ransom of Rs, 6 lacs was agreed and on 07-02-2012 Ismail delivered the ransom amount of Rs, 6 lacs at a railway track near Malir Halt where the kidnappers had told him to come (later identified by Ismail as accused Aqeel, Murad and Danish) who told him Uzeyfa would be released. Uzeyfa was not released and the accused started to demand more ransom where upon Tariq Hameed lodged the FIR at Police Station Hydri on 16-02-2012. On 17-02-2012 I.O. Tahir Nasir (PW 11) started to investigate the case along with the assistance of the CPLC who were assisting in the ransom negotiations. He received information that the accused had arranged to receive further ransom. A police party lead by ASI Iftikhar Hussain (PW 8) along with representatives of CPLC lay in wait near Ziauddin Hospital chowrangi and when the two accused Murad and Adeel reached the appointed place to collect the further ransom they were arrested and an unlicensed pistol was recovered from each of them. From Murad a mobile phone and SIM No,0323 2498124 was also recovered. On interrogation before the police Murad and Adeel confessed that they had kidnapped Uzeyfa for ransom on 27-01- 2012 and had also received 6 lacs in ransom money . During further interrogation before I.O. Tahir, Murad and Adeel confessed that they had kidnapped Uzeyfa and killed him. Murad and Adeel then took I.O. Tahir Nasir to the place where they had hidden the dead body of Uzeyfa after killing him. PW 4 Muhammed Ibrahim who was an uncle of Uzeyfa identified Uzeyfa's dead body and his post mortem was carried out by MLO Jagdesh Kumar (PW 10) who found the cause of death to be suffocation but also found that the dead boy had been sodomised (for which the accused have not been charged). During further interrogation by 10 Tahir Nasir the accused Murad and Adeel disclosed their accomplices as Aqeel and Danish. Adeel also took 10 Tahir Nasir to the place from where Uzeyfa was kidnapped from, to flat 603 Snober heights where Uzeyfa was held hostage and was murdered and the pillow which he, Murad and Aqeel had used to suffocate him to death before removing his dead body in a suit case. At 26.03.12 at 2 a.m. JO Tahir arrested the accomplices Aqeel and Danesh on the pointation of Adeel (who was Aqueel's brother) who confessed their guilt in the crime. Aqueel, Murad and Danesh were identified at an identification parade carried out by JM Asghar Ali by Muhammed Ismail as the persons who he gave 6 lacs and thus the prosecution had proved through its PW's, documentary evidence including CDR records that all the accused were guilty of the of fense of kidnapping for ransom and murder of Uzeyfa. 12. In a nutshell the plea of all the accu sed was that they were innocent and had been falsely implicated in the case. In particular Danish claimed that he was working at Mamji hospital on the date that the 6 lac ransom was allegedly paid by him and two other of the co-accused to Ismail. Brothers Adeel and Aqeel claimed that they used to work in partnership with Ismail and that Ismail was now attempting to fix them with the help of the police because they refused to leave the partnership on Ismails demand. 13. This court issued show cause notice to accused Danish as to why his sentence of 10 years RI may not be enhanced. Danish furnished his reply to the same. 14. Learned advocate for appellants contended that there was a delay of about 20 days in registering the FIR which indicated that the whole story had been concocted; that when the first ransom call was made it was from a landline but no CDR was collected in respect of this telephone number and as such the accused could not be linked to it; that it was 03 a.m. in the morning of 07-02-2012 when the ransom of 6 Lacs was allegedly paid by PW Ismail to the accused at which time it was dark and as such Ismail would not have been able to see or identify any of the accused; that no ransom amount was recovered from any of the accused; that with regard to accused Murad and Adeel there confession to the crime of kidnapping and murder of Uzayfa could not be relied upon as it was an extra judicial confession before the police and had no value in the eyes of the law; likewise Murad and Adeel allegedly taking the police to the dead body of Uzeyfa could not be safely relied upon as there were material contradictions in the witnesses who were present when the body was recovered as to whether it was simply in the bushes, covered by leaves or had to be dug up and even otherwise the body had been found on their joint pointation and as such could not be relied upon; that the identification of the body could also not be safely relied upon as the body was decomposed and it was not possible to recognize Uzeyfa; that the identification parade where the accused were picked out by PW Ismail could not be relied upon as PW Ismail had not seen any of the
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kidnappers in the dark when he paid over the ransom and as such he could not identify any of them; that even otherwise the identity parade was defective as all the accused were part of the same parade rather than independent parades being conducted for each accused and the dummies in the identification parade were not as per the relevant rules for carrying out identification parades; that all PW's were related and as such could not be safely relied upon; that accused Danish and Aqeel had been dragged into the case through the value less extra judicial confessions of the co-accused Murad and Adeel made before the police; that with regard to accused Danish he submitted that the only evidence against him was that he had been picked out as one of the kidnappers in the identification parade by PW Ismail and since this identification parade as mentioned earlier was defective it had no legal value and as such all the accused should be acquitted. Lastly he submitted that if on merit the convictions against Murad, Adeel and Aqeel were upheld by this court then he would be satisfied if their sentences were reduced from the death penalty to life imprisonment. In support of his contentions he placed reliance on Hakeem and others v. The State (2017 SCMR 1546 ), Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), Muhammad Tufail v. The State (2013 SCMR 768), Mst. Mehboob Bibi and others v. The State (2017 SCMR 1835 ), Waqar Zaheer v. The State (PLD 1991 Supreme Court 447), Muhammad Asif v. The State (2017 SCMR 486) and unreported judgment of D.B. of this Court dated 13.11.2018 in the case of Muhammad Bilal and others v .The State . 15. Mr. Muhammad Iqbal Awan, Deputy Prosecutor General, contended that there were no legal infirmities in the impugned judgment and as such the convictions and sentences should be upheld with respect to all the accused; that with respect to Murad and Adeel they were arrested coming to collect the further ransom from PW Ismail whereupon they immediately admitted their guilt before the police and took the police to where the dead body of Uzeyfa was and that such evidence was admissible based on Article 40 of the Qanun-e-Shahadat Order , 1984. He conceded that there may have been some contradictions about how the body was recovered but contended that these were only minor in nature and were not fatal to the prosecution's case; that the body of Uzefya was not completely decomposed and PW 4 Muhammed Ibrahim who was the uncle of Uzefya was able to recognize him from a part of his face and his clothes and chapples; that the medical report had found that Uzefya had died an unnatural death through suffocation which tied in with Adeel's extra judicial confession that the accused had murdered Uzefya by suffocating him with a pillow case; that Adeel took them to where they kidnapped Uzefya; the flat in snober heights where he was held and killed by the accused; where the recovery of the pillow used to suffocate Uzefya was made and the suit case used to carry Uzefya's body to the waste ground where he was dumped; that the accused were linked to the kidnapping by the SIM recovered from Murad which had been used to make contact with Ismail as shown through the CDR data; that Danish had clearly been identified by Ismail when he dropped off the 6 lacs first ransom and that all the accused had been identified by Ismail at the identification parade which had been conducted in accordance with the law; that Adeel was the real brother of Aqeel who was working with the mother of Uzafya at her boutique and hence they knew that she had money and as such the impugned judgment should be upheld and the convictions and sentences against all the accused should be maintained because the prosecution had proved its case against each of the accused beyond a reasonable doubt. In support of his contentions he placed reliance on Muhammad Anwar alias Lalu v. The State (2003 YLR 300), Aurangzeb v. The State (2010 PCr.LJ 1281), Ali Imran v. The State (PLD 2006 Supreme Court 87), Sh. Muhammad Amjad v. The State (PLD 2003 Supreme Court 704), Ahmed Hussain alias AMI and others v. The State (PLD 2008 Supreme Court 110), Hamid Mahmood and another v. The State (2013 SCMR 1314 ) and Nazir Shehzad and another v . The State (2009 SCMR 1440 ). 16. Learned counsel for the Respondent/ complainant contended that (in respect of Danish) that under section 7(e) and subsection (2) of the ATA the appellant Danish as a matter of law could only have been sentenced to death or life imprisonment rather than for 10 years and as such Danish should be awarded the death penalty like the other co-accused especially as this was a very heinous crime involving the kidnapping and murder of a 1 1 year old boy . 17. We have heard the learned counsel for the parties, gone through the entire evidence which has been read out by the appellants counsel, the impugned judgment with their able assistance and have considered the relevant law . General
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18. Before embarking on our appraisement of the evidence we thought it useful to set out how we regard kidnapping for ransom cases and those involved in the same. In our view kidnapping for ransom cases can be compared for instance with a bank robbery . For a bank robbery to be successful a number of persons may have different roles. For example, A may act as a look out, B may go into the bank and threaten the customers and bank staff, C may carry the money out of the bank and D may drive the getaway car for the others but in such a case importantly whatever the role of each person they all have the same objective i,e, to rob the bank and without each of them playing their own independent role the object of robbing the bank could not be achieved and thus they are all liable for the same of fense of robbery and the same punishment. 19. The same is the case for kidnapping for ransom. Kidnapping for ransom these days is very often not a simple affair. For example, A does not simply kidnap B, take him to his home and calls B's father demanding a ransom on B's landline. Now a days kidnapping for ransom is very often carried out in a highly sophisticated and planned manner by highly organized gangs. For example, A may kidnap B, B is then handed to C, C then hands B to D at a new location, E makes the ransom call, F collects the ransom money , G hands over the ransom money to the leader of the gang. Disposable phones may be used, different vehicles and locations may be used to shift and detain the abductee and some or none of the gang members may not even know each other by face. One gang may even sell on the abductee to anoth er gang in a different part of the country , but ultimately as with the example of the bank robbery mentioned above in such a case importantly whatever the role of each person they all have the same objective i,e, to kidnap the abductee for ransom and without each of them playing their own independent role the object of kidnapping the abductee for ransom could not be achieved and thus they are all liable for the same offense of kidnapping for ransom and the same punishment . 20. In this respect reliance is placed on Khwaja Hasanullah v. The State (1999 MLD 514) at P.524 where it was held as under; "In cases of abduction for ransom, it is not necessary that all the culprits must have collectively done all the criminal acts together from the stage of abduction till extortion of money . In such cases mostly , the work is divided. Abduction is done by a few of them, place of confinement is guarded by ethers and ransom is extorted by one or two of them. This…
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