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Petitioner: KHURRAM MUSHTAQ and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Muhammad Afzal Soomro Title: KHURRAM MUSHTAQ and others vs THE STATE Case No.: Special A.T.As. Nos.39 of 2004, 34 and 35 of 2005 Date of Judgment:2005-12-31 Reported As: 2006 P Cr. L J 728 Result: Appeals accepted
JUDGMENT
JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Special Anti-Terrorism Appeals Nos.39 of 2004, 34 of 2005 and 35 of 2005 as common questions of facts and law are involved. 2. The case of the prosecution as per F.I.R. Is that the complainant was running his business at Muscat and mostly remained out of country in connection with his business. His wife Shahnaz Perveen, who was employed in National Bank, along with his son Raghib Abbas aged about 22 years were residing together. On 1-4-2004 his son Raghib Abbas went in his Suzuki FX blue colour car to meet someone at about 10-15 a.m. While he was leaving the house, his mother inquired from him as to where he was going to which Raghib Abbas informed her that he was going to see his friend at Rado Flats, Block 12,. Gulistan-e-Johar. Subsequently, Zeeshan Abbas the brother of the wife of complainant informed his sister Shahnaz Perveen that. He had seen Raghib Abbas going with a girl and a boy in his car at about 11-30 a.m. At about 1-30 p.m. Shahnaz Perveen received a telephone call from unknown person. The caller informed her that her son was with him and in case, she wanted to see him alive, she should pay ransom of Rs,10,00,000 to him. She was perplexed because of that telephone call, therefore, she informed the complainant about the said facts on telephone at Muscat so also her other relatives. They tried to search Raghib Abbas but did not succeed. In the meanwhile they also received another telephone call from the kidnappers who threatened that in case the matter was reported to the police, they would receive the corpse of the abductee, therefore, Shahnaz Perveen did not inform the matter to the police. At about 8-30 p.m. Another telephone call was received at his house thereby informing Shahnaz Perveen that her son was lying injured in the car and he might be collected. On receipt of telephone call they reached at Singapore Tower where behind Singapore Tower they found Raghib Abbas lying injured and
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unconscious in his car and blood was oozing from his mouth. Shahnaz Perveen brought him to Jinnah Hospital and from there the injured was shifted to Liaquat National Hospital where he was admitted. It is further averted in the F.I.R. That Raghib Abbas informed his mother Shahnaz Perveen that one Shiraz was his friend. Who used to chat with him by posing himself as a girl and the (Raghib Abbas) informed him the prevailing circumstances of their family including business of his father at Muscat and service of his mother and that he mostly used to remain alone in his house. In the night of 31-3-2004 Shiraz while posing himself as girl asked him that he wanted to meet with him. Sheeraz called him at Rado Flats and when he reached at the requisite time and place, Shiraz along with a girl, who subsequently disclosed her name as Shabana met him. They sat in his car and he proceeded from there. After some distance Shiraz took out weapon and Shabana asked him that her house was situated in Block 19 and directed him to drive the car there. They brought him in Block 19, Gulistan-e-Johar in a bungalow where appellants Khurram, Asif and Athar were present. They took out TT pistols and they started beating him with the butt of TT pistols and asked him that he was rich man and they would receive ransom money from his father. Meanwhile the appellant Shiraz asked his companions that he might be given same treatment as was given to one Muhammadi. On such instance of appellant Shiraz, appellants Athar and Khurram caught hold of his legs, appellant Shiraz also caught him appellant Asif injected an injection on his chest and some time later he talked on telephone with someone by informing him "doctor, nothing had happened with him after injecting first injection". After taking instructions from other side they also injected another injection on his chest. Thereafter, he went unconscious. When he regained his senses, he found himself in hospital. The F.I.R. Further disclosed that the matter was informed to Police Station Gulistane-Johar on telephone. From where Umeed Ali Mirani S.I.P. Visited Liaquat National Hospital and recorded the statement of Raghib Abbas. On 16-4-2004 Raghib Abbas expired in the hospital. The complainant thought that police were doing necessary investigation but was subsequently, informed that all the police officials, who had visited the hospital, were killed in an attack at Police Station Gulistan-e-Johar. He further stated that he visited Police Station Gulistan-e-Johar where he was informed that the present incident fell within the territorial jurisdiction of Police Station Shahrah-e-Faisal, as such, he lodged the F.I.R. Against Shiraz, Asif Khan, Khurram, Athar and Shabana, who kidnapped his son Raghib Abbas aged about 22 years with intention to take ransom money from him and killed him by injecting certain injections. As such, the F.I.R. As stated above, was registered on 25-7-2004 at 8-30 p.m. 3. The police after usual investigation submitted challan in the Court by showing appellants Khurram Mushtaq and Athar Mahmood in custody and accused Sheerazuddin, Shabana and Asif as absconders. The case proceeded against the appellants Khurram Mushtaq and Athar Mahmood. In the trial the prosecution examined 12 witnesses. The appellants, in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. They did not examine themselves on oath but examined two defence witnesses namely Muhammad Mubashiruddin and Muhammad Abrar .Khan. 4. The learned trial. Judge, after considering the. Evidence and hearing the parties' counsel convicted the appellants under section 7(e) of Anti-Terrorism Act, 1997 (hereinafter referred to as "Act, 1997") read with section 365-A, P.P.C.; under section 7(a) of Act, 1997 read with section 302(b), P.P.C. And sentenced each of them to suffer imprisomnent for life and fine of Rs,1,00,000 and forfeiture of properties to the extent of Rs,1,00,000. In case of non-payment of fine the appellants were sentenced to suffer R.I. For 5 years each with direction that after its recovery half of the fine amount should be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Without benefit of section 382-B, Cr.P.C. Vide judgment, dated 19-10-2004. Both the appellants preferred appeal bearing No,39 of 2004.
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5. Subsequently, the appellants Abdul Sajjad and Sheerazuddin were arrested. They were tried separately. In that trial the prosecution examined 10 witnesses. The learned trial Judge, after considering the evidence and hearing the parties' counsel convicted the appellants for offences punishable under similar sections as that of appellants in Appeal No,39 of 2004 and they were also awarded similar sentences under the impugned judgment dated 26-5-2005. The appellants have filed two separate appeals bearing Nos.34 and 35 of 2005 respectively. 6. We have heard the Advocates for the appellants, A.A.-G. For the State and perused the record of this case very carefully. 7. The learned Advocates for the appellants have stated that the rosecution has relied upon: (1) dying declaration of the deceased; and (2) identification test of appellants through P.W.3 Zeeshan Abbas and P.W.7 Jamil Ahmed; that the dying declaration of the deceased has not been proved in accordance with law: that the identification of the appellants through their names was not proper as the appellants were not known to any of the witnesses; that the P.W.3 and P.W.7 had improved their statements in the Court from their earlier statements; that the initial story of the prosecution was that one boy and one girl were with the deceased which has been improved by showing that there were two boys and one girl with the deceased at the time of alleged abduction; that the entire story of the prosecution has been changed. They have emphasized that there is delay of more than three months in lodging the F.I.R. Which the prosecution has failed to explain. Therefore, the prosecution story has become doubtful and has been prepared after due consultation so as to involve the appellants in the case. 8. The learned A.A.-G. Has also stated that the case of prosecution rests upon the above pieces of evidence as disclosed above and further added that the house from which the deceased was taken away in an unconscious condition was rented out to appellant Sheeraz; that the P.W.7 had seen the appellants putting the,, deceased in unconscious condition in the car; that P.W.3 had seen the appellants Athar and Sheeraz in the car at the time of abduction; that the dying declaration has been proved; that the delay in lodging the F.I.R. Has been explained, therefore, the prosecution has proved the case against the appellants. He has supported the impugned judgment. 9. First of all we will take up the dying declaration of the deceased. In order to prove the said piece of evidence the prosecution relied upon P.Ws. Shahnaz Perveen, Syed Zeeshan Abbas Zaidi and corroborated by complainant Syed Hussain Abbas. Their evidence reveals that the deceased informed the incident to the witnesses on two occasions at two different places: The first narration was given to his mother Shahnaz Perveen and his maternal-uncle Syed Zeeshan Abbas while they were returning from Jinnah Hospital and going to their house. The second time the deceased disclosed the facts to Shahnaz Perveen and other P.Ws. When he was admitted in Liaquat National Hospital. The evidence of Mst. Shahnaz Perveen, recorded in the first trial reveals that when the deceased was being taken to her house in the car which was being driven by her brother Zeeshan Abbas the deceased disclosed the facts and her evidence on the above point reads as under:-- "In the way to our house, I inquired from my son about the incident and he informed me that accused Shiraz, Athar and one girl by name Shabana were his Cyber friend on internet and they had called him at Rado Centre to which he did and when he came at Rado Centre, Shiraz, Athar and Shabana were present there who came in his car and after some distance when he tried to take turn of the car towards our house the said friend Shiraz took out pistol and kept it on his temple and asked him to drive the car straightly, then the said girl Shabana asked them to take him at her bungalow situated in Gulshan Bungalows, Gulistan-eJohar as such they brought him in that bungalow where two persons Asif and Khurram were already present where Asif and Shiraz had beaten him. They had also fastened his hands with rope. He further informed me that they had also demanded the keys of our house from him to which he had informed that the keys of house are not with him as I was present at my house.. Thereafter they took telephone number of our
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house from him. They had reiterated to him that they will receive ransom from his father. Sometime later they said that they could not receive ransom from his father and he may be given same treatment as has been given to one Muhammadi. Thereafter the accused Athar and accused Khurram caught hold of his legs and accused Shiraz and Asif caught his hands and also injected a syringe in his chest. The lady accused Shabana was standing near to him at that occasion. Sometime later they talked with someone on telephone and directed to other side that doctor nothing has happened after first injection thereafter they injected another injection in his chest and after the second injection he went unconscious and he regained his sense in the hospital." 10. P.W. Zeeshan Abbas also gave the same facts as mentioned above. With regard to the facts narrated by the deceased to the P.Ws. During the second time in the hospital Mst. Shahnaz Perveen stated as under:- "At Liaquat National, Hospital my son was admitted in Chest Ward where he was provided necessary treatment and he again regained his full senses but he was constantly complaining about severe pain in his chest. On the middle night of 3rd and 4th April, 2004 one Inspector along with 3-4 police officials had visited hospital and had recorded the statement of my son though I had not informed to the police about the incident." 11. P.W. Zeeshan Abbas stated as under:-- "On the second day of his admission in Liaquat National Hospital at about 1-30 a.m. Police also visited and recorded his statement in ICU Chest Ward and I as well as Arif Raza the friend of my brother-in-law were present at that time and my nephew had disclosed all the details to police officials which I have stated to the earlier part of my statement." 12. P.Ws. Gave the details of dying declaration of the deceased when he disclosed the facts to them when they were travelling from Jinnah Hospital to house, but no details of the second time dying declaration was narrated by these witnesses. However, P.W. Shahnaz Perveen disclosed that when her husband reached hospital from Musqat she narrated the facts to him. The complainant Syed Hassan Abbas confirmed the above position of his wife. He disclosed that his wife informed the facts narrated to her by the deceased in the hospital and his evidence on the said aspect is as under:-- "During the course when my son was admitted in hospital and I had reached from Musqat, my wife had informed me that when my son had regained he had informed her that his friend Shiraz used to chat him on internet by posing himself as Shabana and Shiraz, Asif, Shabana, Khurram and Athar had called him and then kidnapped him and they brought him in an empty house by lodging him in the dikki of his own car where they had severally tortured on him and because of severe torture his rib was also fractured. My wife had further informed me that my son Raghib Abbas had further informed her that after torture on him the accused Asif and Shiraz had given him an injection on his chest and after injecting the said injection, they had also talked on telephone by saying that doctor we have injected him but without result, after the talk on telephone, they gave him another injection on the chest due to which he went unconscious." 13. He also stated that when he was in Musqat his wife informed him about the information received by her (she confirmed the same) and she also informed him that his brother-in-law P.W. Zeeshan Abbas informed her that a boy and a girl was seen by him in the car of the deceased. The complainant further stated that whatever information received by him he disclosed the same in the F.I.R. 14. The P.W.12 S.I.P. Muhammad Aslam disclosed that the complainant had stated that one boy and one girl were seen with the deceased at the time of abduction. From the dying declaration it is clear that two boys and one girl were sitting with the deceased at the time of abduction. The evidence pf Zeeshan Abbas, in the examination-in-chief, shows that he also saw two boys and one girl sitting in the car of the deceased. Mst. Shahnaz Perveen, in her deposition, also stated that P.W.
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Zeeshan Abbas informed her that he saw two boys and a girl sitting with the deceased. Their statement is not supported and corroborated by the complainant Syed Hassan Abbas as he disclosed that his wife had informed him that Zeeshan Abbas saw a boy and a girl in the car of the deceased at the time of abduction. This was the initial story which the complainant received at Muscat. The Investigating Officer P.W.12 has fully supported the complainant by disclosing that the complainant had also stated that one boy and one girl were seen with the deceased at the time of abduction. He also stated that initial story of the prosecution was also that one boy and one girl were seen with the deceased at the relevant time. Thus, it appears that the basic story has been changed and the dying declaration to the above extent has become doubtful in view of statement of complainant. 15. According to the dying declaration, as narrated by the P.Ws., that Sheeraz, Athar and Shabana, who were his cyber friends on internet, had called him at Rado Centre whereas the complainant disclosed that his wife had informed him that Sheeraz, Asif, Shabana, Khurram and Athar had called him and then they kidnapped him. This statement is contradictory to the statement given by the P.Ws. Mst. Shahnaz Perveen and Zeeshan Abbas. The evidence of complainant further shows that Shahnaz Perveen informed him that the kidnappers had brought the deceased in an empty house by lodging him in the dikki of his car whereas no such facts have been mentioned by the above named two P.Ws. That the deceased had informed such facts to them. 16. The dying declaration further reveals that he was given two injections and thereafter he immediately went unconscious. The prosecution led evidence through P.W.7 and Investigating Officer that they secured two syringes from near the bungalow. The said syringes were sent to Chemical Analyzer but the report Exh.53 is negative. The visras and other pieces of organs secured by the Medical Officer at the time of post-mortem examination were sent to Chemical Analyzer for examination. According to the said report nothing was found from which it can be gathered that the deceased was giVen or administered any intoxicant or injection having the effect by which the deceased went unconscious. Thus, the report is in negative. It is pointed out that P.Ws. Found the deceased in unconscious condition lying in the car and then they took him to Jinnah Hospital but no record of Jinnah Hospital has been produced or examined any doctor confirming the position taken by the P.Ws. That the deceased was unconscious when he was brought to Jinnah Hospital. This aspect of the case also does not prove the assertion made in the dying declaration that immediately after administering him an injection he went unconscious. Thus, the dying declaration, on its material particulars, has neither been supported nor corroborated by any other piece of evidence. 17. It is an admitted fact that the appellants were not known to any of the P.Ws. According to dying declaration the person by the name of Sheeraz posin (himself as a girl was chatting with him. As such, the deceased also did not know appellant Sheeraz. From the dying declaration it is also clear that the remaining appellants Athar, Khurram, Asif alias Abdul Sajjad and absconding accused Shabana were not known to the deceased either by names or faces prior to the incident. It appears that it was the first time when the deceased saw all the appellants. As such, whosoever the persons might be by the names mentioned by the deceased were only known to the deceased through their names and subsequently, by faces and nobody else knew them either, by names or by faces. An identification of a person is either by name' or by face or by both. If a person is known by his name and by face by meeting with several persons then that person can be identified by name. If a person is known by face without knowing his name then that person can be identified by another person by seeing the face of said person. If a person is not known by name or by face then that person cannot be identified even if a name is told to the other person, or feature of a person is disclosed to the other person.
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18. It is possible that several persons having similar names but having different castes can be known to persons. From those persons if a reference is made to a particular person then that persons can be identified through name by taking the surname or caste of that person. These are various modes where a known or unknown person by name or by face can be identified by various persons who had contact with them. 19. In the present case none of the P.Ws. Knew the appellants by name or by face. It was only deceased who, in the beginning, did not know those persons either by names or faces, except appellants Sheeraz and that too by name of Shabana. After meeting Sheeraz he came to know that Sheeraz was posing himself to be Shabana. Thereafter the other persons by the names Asif, Khurram and Athar met with him and he came to know about their names and saw their faces. As such, if the deceased had taken the names of those persons then he would be referring to the persons with whom he met and also knew them by their faces but those persons were neither seen by any of the witnesses nor they knew their names except the names taken by the deceased. Thus, the identification of the appellants by just taking the names by the deceased would not be enough unless it is proved that the appellants are same persons who were seen by the deceased at the time of incident. 20. Thee is no evidence available on record by which the deceased had given the features of all those persons who met with him at the time of incident to the P.Ws. Therefore, the deceased by taking the names which fortunately or unfortunately correspond with the names of the appellants would not be enough to establish the identity of the appellants to be the same persons who met with the deceased. Thus, the prosecution is required to lead some more evidence pinpointing that the appellants are the persons who were seen with the deceased at the time of incident. 21. In order to prove the identity of such persons the prosecution has relied upon the evidence of two witnesses namely Zeeshan Abbas and Jamil Ahmed. 22. First, we will deal with the evidence of Zeeshan Abbas recorded during the first trial. His evidence reveals that on 1-4-2005 at about 11-15 or 11-30 a.m. He was coming from his Bank and going to house of his sister P.W. Shahnaz Perveen for taking her car as he had to go to Regional Office. He took a bus and alighted from it at Rado Stop where he purchased a cigarette. While he was smoking he saw the car of his sister coming in which one girl and one boy were sitting on the rear seat of the car. His nephew deceased Raghib Abbas was driving the car whereas one person was sitting on the front seat beside him. After seeing the car from a distance of about 20 or 25 paces he called the deceased but he might had not heard his voice as he drove away his car. He then went to his sister's house, informed such facts to his sister and thereafter they received the call from the culprits. He further stated that he knew all the friends of the deceased but the girl and the boys sitting in the car were unknown to him. In the cross-examination he admitted that he had a car but on that date his car was taken away by his brother, therefore, he went to the house of his sister to take her car. 23. From the above statement it is clear that the witness was accustomed to a luxury life as he owned a car and was travelling in it. In such a situation the person having a car would seldom take a bus to go to the house of his sister. The condition of the buses is well-known to everybody. It is not appealing to the common sense that a person accustomed to travelling in a car would travel in a bus to go to the house of his sister. His natural conduct would have been either to hire a taxi or a less expensive rickshaw to go to the house of his sister. If the story would have that he had hired a taxi or a rickshaw then there was no occasion for him to reach at Rado Centre because the taxi and the rickshaw would have directly taken him to the house of his sister. It appears that the story of bus has been developed in order to make improvement to show his presence at the place of Rado Centre and to fit in the circumstances of the case.
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24. Nevertheless, his evidence reveals that he saw the car of the deceased coming from a distance of 20 to 25 paces i,e, about 70 or 80 ft. He called his nephew but he did not respond and drove away the car. His evidence further reveals that he saw two boys and a girl sitting in the car. In such a situation the natural conduct of a person, after seeing the car, identifying it to be the car of his sister, his first reaction would be to see the driver as to who was driving the car and after identifying him he would have given general glance to the car to see as to how many persons were sitting in it. If he saw male and female sitting, in the car then his next reaction would be to see the girl to identify her so as to understand whether the girl was their own relative or some unknown girl and thereafter he would look at the other two occupants of the car. The car, according to the P.W. Was in moving condition. The witness was standing at a distance of about 70 or 80 ft. Away from the car. The car must have taken few seconds in passing the witness and by doing so it must have changed its position and in such a situation it is not possible for the…
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