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Official Citation: 2024 SHC 3055
Court / Jurisdiction: Sindh High Court
Petitioner: Spl.Anti.Ter.A. 92/2024 (D.B.) Sindh High Court, Karachi - DANISH MAQBOOL S/O MAQBOOL HUSSAIN (Appellant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 3055. In this matter between Spl.Anti.Ter.A. 92/2024 (D.B.) Sindh High Court, Karachi - DANISH MAQBOOL S/O MAQBOOL HUSSAIN (Appellant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Spl.Anti.Ter.A. 92/2024 (D.B.) Sindh High Court, Karachi CITATION: 2025 SHC KHI 3055 PARTIES: DANISH MAQBOOL S/O MAQBOOL HUSSAIN (Appellant) ORDER DATE: 28-OCT-25 BENCH: Hon'ble Mr. Justice Adnan Iqbal Chaudhry, Hon'ble Justice Ms. Tasneem Sultana(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH AT KARACHI
Spl. Cr. AT Appeal No.D-92 of 2024
Spl. Cr. ATJ Appeal No.D-99 of 2024
Before: Justice Adnan Iqbal Chaudhry. Justice Tasneem Sultana.
Appellant Danish Maqbool through Mr.Nasrullah Korai, in Appeal No.92/2024. Advocate.
Appellant Moula Bux @ Mouli: Nemo in Appeal No.99/2024. .
Complainant Muhammad Hanif: Nemo
State Through Mr. Mumtaz Ali Shah, Assistant P.G
Date of hearing 24.7.2025, 25.07.2025, 28.07.2025 & 29.07.2025.
Date of judgment 28.10,2025,
J U D G M E N T
TASNEEM SULTANA, J: By this common Judgment, we intend to dispose of aforementioned Special Criminal Anti-Terrorism Appeal/Jail Appeal, as the same being arisen out of common judgment, have been heard by us together. Through the listed Appeal and Jail Appeal Appellants Danish Maqbool and Moula Bux @ Mouli have assailed the Judgment dated 27.06.224, passed by the Anti -Terrorism Court No.XV Karachi (Trial Court) in Special Case No.46 of 2021 (Old number 112 of 2021), arising out of FIR No.331 of 2020 registered at P.S Chakiwara Karachi under Section 302, 365-A & 34 PPC read with Section 7 of Anti -Terrorism Act 1997, whereby they have been sentenced as under: (i) Accused Moula Bux @ Mouli son of Muhammad Anwar and Danish Maqbool so of Maqbool Hussain are sentenced to suffer imprisonment for life under section 364-A read with section 34 of Pakistan Penal Code, 1860 alongwith payment of fine of Rs.200,000/ - each as compensation to be paid to the legal heirs of deceased and in case of default of payment of compensation they accused shall suffer S.I for six (06) months more.
(ii) Accused Moula Bux @ Mouli son of Muhammad Anwar and Danish Maqbool so of Maqbool Hussain are sentenced to suffer imprisonment for life under section 7(1)(a) of Anti -Terrorism Act, 1997 alongwith fine of Rs.200,000/-each to be paid to the legal heirs of deceased and in case of default of payment of fine they accused shall suffer S.I for six (06) months more.
All the sentences have been ordered to run concurrently and the benefit of Section 382-B, Cr.P.C has also been extended to the Appellants.
2
2. Facts of the prosecution case, in nutshell, are that on 14.12.2020 complainant Muhammad Hanif Baloch appeared at police station and narrated that on 12. 12.2020 at about 12:00 noon his son Abdul Rehman aged about 11 years left the house and did not return, as such on 13 -12-2020 at about 01:30 hours he filed NC report at police station Chakiwara, that he is confident that someone kidnapped his son for unknown reason. On the aforesaid narration of the complainant, duty officer SIP Ahmed Khan lodged the FIR for offence under section 364-A and 369 PPC.
3. SIP Muhammad Ashraf of PS AVCC/CIA, was entrusted investigation of this case, he visited the place of incident. On 20.12.2020, dead body of a boy in burnt condition was found within the jurisdiction of Police Station Baghdadi which was taken to Civil Hospital Karachi by SIP Sabir Hussain of PS Baghdadi. The mother identified the piece of the trouser and declared the dead body is of her son Abdul Rehman. On 08 -01-2021 Investigation Officer on suspicion arrested Moula Bux @ Mouli, who during interrogation, disclosed that he committed this offence along with his accomplices Sarban, Saud, Danish Maqbool and 2/3 friends of Saud for extortion of Rs.150,000/ - or 200,000/-. On such disclosure Section 365-A PPC read with section 7 ATA was inserted. During interrogation the appellants admitted their guilt while disclosing that after kidnaping Abdul Rehman they took him to the house of Aunt of Danish Maqbool's wife, situated at Gulshan-e-Mazdoor, Hub River road Karachi, meanwhile Abdul Rehman died due to the fear. The appellants voluntarily led the Investigating Officer to the pointed places. On 19.01.2021 confessional statement under Section 164 Cr.P.C of accused Moula Bux @ Mouli was recorded before the learned Magistrate concerned. The Investigation Officer submitted the charge sheet before the trial Cou rt while placing the name of co -accused Saud and 2/3 unknown in column No.2.
4. During proceedings co -accused Sarban was killed in police encounter and proceedings against him were abeted vide order dated 18.3.2024, while case against accused Saud was kept on dormant file.
5. Having been supplied the requisite documents as provided under section 265 -C Cr.P.C., the trial court framed formal charge against the appellants at Ex.04 to which they pleaded not guilty and claimed trial. 6. To prove its case, pros ecution examined thirteen (13) witnesses. PW-1 Mst.Zarina was examined at Ex.05. PW-2 Dr. Abdul Jabbar Memon at Ex.8, he produced postmortem examination report at Ex.8/A, certificate of cause of death at Ex8/B and letter addressed to MLO at Ex8/C. PW-3 Muhammad Amjad at Ex -09, he produced memo of inspection of place of incident at Ex.9/A and memo of pointation of place of recovery of dead body at Ex.9/B. PW-4 complainant Muhammad Hanif (through video link) at Ex.11, he produced FIR at Ex.11/A, memo of securing mud attached with the dead body at Ex.11/B, report under section 174 Cr.P.C at Ex.11/C and receipt of
3 handing of the dead body at Ex.11/D. PW-5 SIP Ahmed Khan at Ex -12, he produced roznmacha entry No.3 at Ex.12/A, roznamcha entry No.47 at Ex.12/B, roznamcha entry No.23 at Ex.12/C and letter addressed to Incharge AVCC/CIA at Ex.12/D. PW-6 SIP Muhammad Ashraf at Ex-13, he produced order of SSP at Ex.13/A, roznamcha entry No.86 at Ex.13/B, roznamcha entry No.39 at Ex -13/C, roznamcha entry No.56 at Ex.13/D, letters addressed to police surgeon Civil Hospital Karachi, Incharge Edhi Child Home Karachi, Incharge Ansar Burni child home Karachi, Incharge Serdkhana Home Karachi. Incharge Juvenile Jail Karachi, Director Jinnah Hospital, Additional police surgeon Abbasi Shaheed Hospital and Incharge Edhi Sardkhana Home Karachi at Ex.13/E, entry No.15 at Ex.13/F, entry No.60 at Ex.13/G, entry No.41 at Ex.13/H and entry No.45 at Ex-13/I. PW-7 PC Muhammad Ismail Awan at Ex -14, he produced roznamcha entry No.65 at Ex.14/A, memo of pointation of place of captivity of deceased where he died at Ex-14/B and entry No.24 at Ex.14/C. PW-8 PC Meer Hassan at Ex-18, he produced memo of arrest of accused Danish and Sarban at Ex.18/A. PC Meer Hassan was again examined at Ex.20 as PW-9¸since his earlier evidence was recorded in absence of deceased accused Sarban. PW-10 Judicial Magistrate Barrister Uzair Ali at Ex.22, he produced letter addressed to Judicial Magistrate at Ex.22/A and confessional statement of accused Moula Bux @ Mouli at Ex.22/B. PW-11 SIP Sabir Hussain at Ex.24, he produced roznamcha entry NO.58 at Ex.24/A, entry No.60 at Ex.24/B and roznamcha entry No.15 at Ex.24/C. PW-12 ASI Shabir Ahmed at Ex.25, he produced roznamcha entry No.82 at Ex.25/A, memo of arrest of accused Moula Bux @ Mouli at Ex.25/B and roznamcha entry No.99 at Ex.25/C. PW-13 Inspector Shariq Ahmed Siddiqui at Ex.27, he produced order of SSP at Ex.27/A, letter addressed Chemical Examiner Sindh Karachi at Ex.27/B, letter addressed to MLO Civil Hospital Karachi at Ex.27/C, roznamcha entry No.61 at Ex.27/D, letter addressed to Incharge Sindh Forensic and DNA Serology Laboratory Karachi at Ex.27/E, letter for chemical examination of case property at Ex.27/F, CRO of accused Moula Bux @ Mouli at Ex.27/G, roznamcha entry No.36 at Ex.27/H, roznamcha entry No.44 at Ex.27/I, CRO of accused Sarban and Danish at Ex -27/J, roznamcha entry No.65 at Ex.27/K, entry No.19 at Ex.27/L, entry No.78 at Ex.27/M, letter addressed to MLO Civil Hospital Karachi for DNA of blood sample of mother of deceased and such examination report at Ex.27/N, piece of trouser of deceased at Ex.27/ O, photographs of the dead body of deceased Abdul Rehman at Ex.27/P, letter addressed of Incharge IA C Karachi University at Ex.27/Q, report of Director Laboratories and Chemical examiner at Ex.27/R, reports of Sindh Forensic DNA and Serology Laboratory at Ex.27/S and reports of Industrial Analytical Center at Ex.27 /T and 27/U. 7. Statement of appellants under section 342 Cr.PC were recorded at Ex.29 and 30, wherein they denied the allegations leveled against them and claimed to be innocent. Accused Danish Maqbool produced copy of Cr. Miscellaneous Application No.67/2021, order dated 11.01.2021, raid report of learned Magistrate, entry No.32 and photographs at Ex.30/A to 30/E respectively. Both the appellants-accused did not opt to
4 examine themselves on oath, however, produced witnesses in their defense. 8. Appellant Moula Bux @ Mouli examined his mother Mst. Fareeda as DW-1 at Ex.31, she produced application addressed to I.G Sindh at Ex.31/A. Accused Moula Bux @ Mouli also examined one Muhammad Haris as DW-2 at Ex.32. While, appellant Danish Maqbool examined his mother Mst. Safia a s DW-3 at Ex.33, she produced photographs of appellant Danish Maqbool at Ex.33/A, telephone number of Inspector Shariq at Ex.33/B and chit at Ex.33/C. Appellant Danish Maqbool also examined one Taj Muhammad as DW-4 at Ex.34. 9. The learned trial Court after hearing the counsel for the parties vide impugned judgment convicted and sentenced the appellants as reproduced above.
10. Perusal of record reflects that vide Order dated 27.11.2024 advocate Sumair Zaman was appointed on State expenses to proceed with this case on behalf of pauper appellant Moula Bux @ Mouli, however, he failed to appear even on a single date. Therefore, these appeals were heard with the able assistance of learned counsel for appellant Danish Maqbool and learned State Counsel.
11. The learned counsel for appellant Danish Maqbool inter-alia, contended that impugned judgment suffers from misreading and non -reading of evidence; that FIR was registered after delay of two days; that the FIR was initially registered under section 364-A PPC but last Investigating Officer added Section 365 -A PPC without any lawful authority; that on 06.12.2020 appellant -accused Danish Maqbool left Karachi for Nawabshah alongwith his wife as she was ill and remained in the house of his in -laws from 06.1 2.2020 till 05.01.2021; that the police official of Chakiwara Police Station informed his mother that Danish Maqbool is required for evidence in firing case, thus, on 05.01.2021 he voluntarily appeared at police station alongwith his mother where he was confined, illegally; that mother of accused Danish Maqbool also filed application under section 491 Cr.PC bearing No.67/2001 on which Magistrate conducted raid at police station but he was shifted earlier by the police officials to some unknown place; that defense witnesses also supported the version of appellant by producing documentary evidence; that appellant -accused is not nominated in FIR and his name was inserted at the later stage which too on the alleged statement of appellant Moula Bux @ Moli; that there is no eye-witness of the alleged incident.
12. As far as appellant Moula Bux @ Mouli is concerned, Mr.Nasrullah Korai, advocate for the appellant Danish Maqbool contended that CDR of Moula Bux was not collected despite of the fact that his mobile phone was secured at the time of his arrest; that blood was collected on 24.12.2020 while same was deposited in concerned Laboratory on 28.12.2020; that IO has admitted in evidence that there is no eye witness of the incident, thus, the prosecution failed to prove its case against the appellants; that alleged retracted confessional statement has no value in the eyes of law which was recorded after considerable delay of 11 days; that case of prosecution suffers from reasonable doubts
5 and it based on surmises and conjectures, therefore, appellants are liable to be acquitted of the charge and they cannot be convicted on shaky evidence. In support of his contention has placed reliance on (i) Naqibullah and Anon vs. The State (PLD 1978 SC 21), (ii) Muhammad Azam v. The State (2025 SCMR 810), (iii) Azeem Khan v. Mujahid Khan (2016 SCMR 274) , (iv) Muhammad Mansha v. The State (2018 SCMR 772) , (v) Imran alias Dully v. The State (2015 SCMR 155), (vi) Ghulam Hussain v. The State (PLD 2020 SC 61), (vii) Imran v. The State (2024 PCr.LJ 1048), (viii) Tanvir v. The State (PLD 2020 Lahore 774), (ix) Nabi Bux and another v. The State (1999 SCMR 1972), (x) The State/ANF v. Muhammad Arshad (2017 SCMR 283) and (xi) Khan Muhammad and others v. The State (1999 SCMR 1818).
13. Conversely learned Assistant P.G supported the impugned judgment and argued that chain of evidence duly connects the appellant with the offence; that appellant Moula Bux @ Moli recorded confessional statement before the learned Magistrate itself connects the appellants with the offence; that prosecution witness duly supported the case and they remained consistent despite lengthy cross -examination; that appellants have failed to prove malafide on part of the complainant; that appellants examined defense witnesses in their support as such burden shifted on them to prove their innocence however, they miserably failed to discharge their burden by producing a cogent evidence. He lastly prayed for dismissal of these appeals. In support of his contention he has placed reliance on Sheraz Asgha vs. State (1995 SCMR 1365), Muhammad Ismail and another vs. The State (1995 SCMR 1615), Nabi Bakhsh and another vs. The State and another (1999 SCMR 1972), Shahbaz Masih vs. State (2007 SCMR 1631) and The State/ANF vs. Muhammad Arshad (2017 SCMR 283).
14. We have heard the learned counsel for the parties as well as learned DPG and scanned the material available on record.
15. On careful perusal of material brought on record it appears that undeniably, it is un-witnessed incident. However, the prosecution case is based on circumstanial evidence, judicial confession of appellant Moula Bux @ Moli, recovery of incriminating articles and scientific evidence, which has to be reckoned with. The testimony of PW-01 Zarina mother of the deceased, though lacking eye witness observation of the abduction, is consistent and unshaken on essential facts; that her son left home on 12 -12-2020, at 11.00 a.m., and did not return despite im mediate searching and on the next day. PW4 Muhammad Hanif Baloch complainant (father) filed missing report and on 14-12-2020 FIR was lodged against the unknown persons. This fact corroborates the family’s prompt action. PW3 Muhammad Amjad, maternal uncle o f deceased, confirmed prior money dispute of appellant Moula Bux @ Moli, with Arshad @ Kodu (other maternal uncle of deceased) and co-accused Sarban and he shared these facts with the complainant that 10\15 days prior to incident appellant Moula Bux @ Moli came to PW3 and informed that his brother Arshad @ Kodu owed Rs.10,000\- to co-accused Sarban which is to be
6 recovered by appellant Moula Bux @ Moli, which gave rise to suspicion against Moula Bux. On 20-12-2020, an eventful discovery of the burnt dead body was found from the slaughter house situated within the remit of PS Bagdadi. The fact that the dead body was of deceased was identified through a piece of trouser on the dead body and police secured soil matted with the dead body (Ex.11/B). The evidence of complainant supported by Mst. Zarina (PW -1) and maternal uncle of deceased Muhammad Amjad (PW-3) provides the foundation of the case. None of these family witnesses were shown to have enmity with the appellants, and cross examination did not reveal material contradiction. Their demeanor was steady, and their testimony is confidence inspiring.
16. Medical evidence provided by Dr. Abdul Jabbar (PW -2) reflects that on 20-12-2020, he conducted post mortem examination of burnt dead body vide post mortem report No.252/2020 (Ex.8-A) and confirmed that body was extensively charred, external and internal injuries could not be described and viscera was preserved for forensic purposes, thus medical evidence corroborates the prosecution case by linking recovery of burnt dead body with subsequent forensic findings. On 16.01.2021 during interrogation, appellants Moula Bux @Moli and Danish Maqbool admitted their guilt and on their own disclosures they led police party and pointed the house of aunty/Khala of Danish Maqbool’s wife situated at Hub River Road, Gulshan -e-Mazhar where they kept the deceased Abdul Rehman in captivity. I.O secured mud and chair on which the appellants had tied deceased Abdul Rehman (Ex.14/B). The appellants also pointed out the place from where body of deceased was recovered (Ex.9/B).
17. On 19 -01-2020, the appellant Moula Bux @ Moli when produced before the learned Judicial Magistrate (PW10), confessed his guilt by mentioning in detail the reason of abduction of deceased Abdul Rehman and susequent death during confinement as under:- میں ساربان جو کہ رحمان ڈکیت کا بیٹا ہے اس کے ساتھ میں کام کرتا ہے اور وہ روز کے مجھے200/250 روپے دیا کرتا تھا۔اس طرح میری اس سے دوستی ہوگئی۔ سعود، سربان کی وجہ سے میرا دوست بنا۔ میں سربان کے لیے آئس، کرسٹل سپلائی کرتا تھا۔ ارشد کوڈو نے مجھے 10000 روپے نہیں دیئے تھے کرسٹل اور آئس کی مد میں اور ساربان مجھے سے پیسے مانگ رہا تھا۔ پھر میں نے ارشد کوڈو کے بھانجے کو اغوا کیا۔ 12.12.2020 کو میںنے اور دانش نے عبدالرحمٰن جو کہ بھانجہ تھا ارشد کوڈو کا، کپڑے دلانے کا بول کر موٹرسائیکل پر لی مارکیٹ لایا اور ساربان اور سعود کو دیا۔ پھر دانش، سعود، سربان اور دیگر دوست اس کو نیول کالونی لے گئے۔ دانش کی وائف کی خالہ کے گھر میں اور خالہ انگلینڈ میں تھی۔ پھر انہوں نے بچے کو کرسی سے باندھا۔ پھر میں عشاء کی نماز کے بعد بچے کو دیکھنے گیا بچہ مر گیا تھا۔ اس کے دوستوں نے بچے کے اوپر مٹی ڈالا اور گلاب کا پانی ڈالا اور واش روم میں رکھا۔ میں ڈر کر گھر آیا اور ایک ہفتہ بعد 20.12.2020 کو دانش کی وائف کی خالہ آرہی تھی پھر ساربان اور دیگر کے ساتھ لاش سلاٹر ہائوس کے سامنے گلی کے اندر لائے اور وہاں پھینک دی۔ میں اپنے جرم کو قبول رہا ہوں اور اللہ سے معافی مانگ رہا ہوں۔
18. However, the appellant retracted from his confession. In this case the substantive piece of evidence with prosecution is confessional statement of the appellant Moula Bux @ Moli. From perusal of the same it transpires that the same is voluntar y and according to the narration of the occurrence because the appellant Moula Bux @ Moli had disclosed such facts which otherwise were neither known to the complainant nor to the investigating officer. Such disclosure was that appellant Moula Bux @ Moli had a money claim against Arshad @ Kodu, the maternal uncle of deceased Abdul Rehman; that the claim was for
7 sale of drugs which were peddled by Moula Bux for Sarban, who was son of Rehman dacoit; that Sarban was pressing Moula Bux for payment/recovery; the refore both appellants abducted nephew of Arshad @ Kodu i.e. deceased Abdul Rehman. This confessional statement has rightly been believed by the learned trial court, as it was duly corroborated by sequence of events i.e, the appellants led police party and pointed the house where they kept the deceased Abdul Rehman in captivity. Prior to the said information nobody knew the place of confinement of deceased. In such circumstances, the recovery from the place of captivity on the disclosure of the appellants was admissible under Article 40 of the Qanun -e-Shahadat Order, 1984. The condition precedent to the applicability of Article 40 is that there must be discovery of fact in consequence of some information rece ived from accused, and at that time the accused be in custody of a police officer. In this case both appellants were in police custody and at their instance the place where the deceased was held captive was discovered, from where chair and mud thrown over the dead body was secured. Therefore Article 40 is attracted and said recoveries were according to law.
19. In case reported as Pandurang Kalu Patil and another v State of Maharashtra (PLJ SC(India) 90) the Hon’able Supreme Court of India on the point of recovery at the instance of accused observed as follows: “The fact discovered by PW18 is certainly not the gun. The fact discovered is that A2 had concealed the gun (article No.5\2) behind the old house under the heap of wood. It was the same gun with which A2 had fired at PW2 and that aspect has been proved with the help of other evidence”.
20. The contention of learned defence counsel is that the confessional statement was retracted soon before commencement of trial. This Court is of view that even c onviction can be based on retracted judicial confession provided it is true and voluntary and corroborated by some strong piece of evidence. In this case the confession of the appellant Moula Bux @ Moli was recorded not only in accordance with section 164 \ 364 Cr.P.C., but also in accordance with Rules and Orders framed by High Court. We find that the confessional statement of appellant Moula Bux @ Moli was voluntary and true, and that conviction can be based on his confession.
21. In case of Muhammad Amin vs. The State (PLD 2006 SC 219), it was held as under: “9. There is no cavil to the proposition that conviction could have been awarded on the basis of retracted confession which proposition was examined in case of Mst. Joygun Bibi v. The State PLD 1960 (SC (Pak) 313 as under:
We are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession wa s voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those
8 consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."
22. Similarly in the case of The State vs. Minhas @ Gul Hassan (PLD 1964 SC 813) this court has observed as under: “As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession, whether judicial or extra judicial, could legally be taken into consideration against the maker of those conf essions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well-settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement”.
23. In the case of Badahur vs. The State (PLD 1996 SC 336 ) although it was suggested that a judicial confession alone can be made the basis of conviction the safer course was took to see if there were any corroborative material available to determine its truthfulness. 24. The next question is whether there is any corroborative evidence in relation to the retracted judicial confession although admittedly corroboration tends to be a rule of caution, however, in cases of retracted judicial confession we consider such corroborative evidence to be significance specifically in cases of capital punishment. 25. The judicial confession finds robust corroboration in the scientific evidence produced by the I.O Inspector Shariq Ahmed Siddiqui (Pw -13). During his evidence he produced DNA parentage report (Ex.27/S) which confirmed with probability of 99.99% that the burnt dead body was of Abdul Rehman, biological son of Muhammad Haneef and Zarina Khatoon. Soil analysis…
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