Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: IRSHAD ALI alias ISHOO and 2 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Gulzar Ahmed, Muhammad Afzal Soomro Title: IRSHAD ALI alias ISHOO and 2 others vs THE STATE Case No.: Criminal Appeal No,89 of 2000 Date of Judgment:2005-12-24 Reported As: PLD 2006 Karachi 178 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MUHAMMAD AFZAL SOOMRO, J.---This appeal is directed against the judgment dated 25-10-2000 passed by learned Judge Anti-Terrorism Court, Larkana in Crime F.I.R. No,137 of 1999 of Police Station B-Section District Sukkur for an offence under sections 365-A, 368, 109, 120-B, P.P.C. And section 7(1)(b) of Anti-Terrorism Act, 1997, whereby while acquitting the co-accused Abdul Wahab Soomro, Nadeem Awan, P.C. Nazir Ahmed, Muhammad Hassan and Riaz by caste Jatt, the appellant No, 1 was sentenced to death under section 365-A, P.P.C. And also his property was forfeited to Government Treasury. He was also convicted under section 7(1)(b) of A.T.A. 1997 and sentenced to imprisonment for life and also pay fine of Rs,50,000. In default of payment thereof to undergo R.I. For one year more and the appellants Nos.2 and 3 were convicted under section 368, P.P.C. Read with section 34, P.P.C. And sentenced each of them to imprisonment for life and also forfeited their property to Government. ' Brief facts giving rise to the present appeal are that the complainant owns and runs a shop in the name of Gulshan Cloth House at Shahi Bazar Sukkur. On 8-8-1999 at about 6-00 p.m. Muhammad Arif, owner of neighboring shop called the complainant to attend his telephone. The complainant attended telephonic message. The person talking on telephone made a disclosure that they had abducted his son Muhammad Amjad aged about 16 years and will be released on payment of ransom amount of 12 lacs. He was warned to be careful and not to inform the Police else his son would be murdered. Complainant also directed to wait for next call. Complainant came back at the shop and narrated the above facts to his brothers Muhammad Iqbal and Muhammad Sadique who disclosed that the boy was missing. On 16-8-1999 complainant received second call at the neighboring shop of Muhammad Naeem where the same person told complainant to arrange for
---
## Page 2
Rs,8 lacs else he will not see the face of his son. On the following day, when complainant was contacted by culprits on the shop of Muhammad Naeem at the request of complainant demand of ransom was reduced to Rs,6 lacs. On 26-8-1999 Complainant was finally told by culprits to bring Rs,5 lacs at Karachi Cantt where their persons would collect the same. Thereafter on the advise of nekmards the F.I.R. Was lodged as above. ' Thereafter, the Police started investigation and in due course the appellant No,1 along with co- accused Abdul Wahab were arrested on 30-8-1999 and on 28-8-1999 on spy information S.H.O. Rao Anwar Ahmed of P.S. Gulzar Hijri raided Flat No,D-5 at A-1 Apartments Karachi and recovered Muhammad Amjad from possession of two lady accused namely Mst. Qaisar Jahan and Mst. Razia Mangi who were also arrested. Ultimately present appellants/accused besides others were challaned on 13-9-1999 and set up for trial. The charge was framed under section 365-A, 368, 109, 120-A and section 7(1)(b) of A.T.A., 1997 read with section 34, P.P.C. And pleas of the accused were recorded in which all of them pleaded not guilty and claimed to be tried. In the challan accused namely P.C. Nazir Ahmad, (2) Muhammad Russian Jatt and (3) Riaz Ahmed Jatt were shown as absconders. ' During trial, the prosecution examined Complainant Muhammad Ayub at Exh.22, P.W. Muhammad Naeem at Exh.23, P.W. Muhammad iqbal -at Exh.24, P.W. Muhammad Jaffar at Exh.25, P.W. SIP Muhammad Anwar at Exh.26, P.W. A.S.I. Iftikhar Ali Exh.27, P.W. Agha Khalid, Special Magistrate, Municipal Corporation Sukkur at ' Exh.28, P.W. SIP Tahir Hussian Mughal at Exh.28-D and Exh.29; P.W. Inspector Anwar Ahmed the then S.H.O., P.S.Gulzar-e-Hijri at Exh.32 and P.W., H.C. Muharam Ali at Exh.33. ' All the accused recorded their statements under section 342, Cr.P.O. In which they have denied all the prosecution allegations and pleaded innocence. None of the accused examined themselves on Oath in disproof of their charges. ' Thereafter, the learned trial Court heard arguments and passed an impugned judgment extending benefit of doubt and acquitted co-accused but convicted the present appellants on the same set of evidence, hence this appeal. ' We have heard learned counsel for the respective parties and perused the material on record. Learned counsel for the appellants have argued that name of appellants did not find place in the F.I.R., there is no eye-witness of the incident; the confessional statement was recorded after the court hours, that the confessional statement was recorded after 7 days from the arrest of appellant Irshad alias Ishoo and co-accused. Abdul Wahab and later on the same confessional statement was retracted at an earlier opportunity and therefore, on the strength of retracted confessional 'statement which was neither true nor voluntary. More so accused cannot be convicted for alleged offence of kidnapping unless it is corroborated by another reliable piece of evidence. He further argued that signature of appellant was obtained on blank paper to the Reader of Special Magistrate, Municipal Corporation, Sukkur. He also argued that the appellant No,1 Irshad was of tender age being 13 years 11 months and 23 days at the time of occurrence, and the death sentence awarded to him is not warranted under the law; that section 365-A, P.P.C. Is not attracted in as much as the demand for ransom was not established, .The identification of accused Irshad Ali alias Ishoo has been based on telephonic talk for which no identification test through voice was held. However, the identification of accused on his voice is a weak piece of evidence and the same be supported by some other valuable piece of evidence from an independent source. He asserted that as per evidence, complainant was of opinion that the caller who demanded ransom was Irshad Ali but surprisingly he did not mention his name in the F.I.R. As such it is unbelievable and afterthought. He argued that confession of accused Irshad and co-accused Abdul Wahab was recorded on the same day but the learned trial Judge has believed the confession of appellant No,1 partly and partly not accepted but believed the confession of acquitted accused Abdul Wahab in
---
## Page 3
toto. That on same facts and circumstances, the prosecution evidence cannot be accepted. He further argued that after recording confessional statement before a- learned Magistrate, handed over the custody of accused to same A.S.I. Ameer Baig who not sent them to Jail custody which is unwarranted by law. He further submitted that the P.Ws. Muhammad Ayoob and Muhammad Iqbal had confirmed in their cross-examination that parents and women folks of co-accused Abdul Wahab were detained at P.S. Who were released after his confession being recorded. The credibility of investigating agency was badly shattered which cannot be ruled out. The confession of accused Irshad Ali was also as a result of duress and mental torture. He further submitted that it is well- settled that it would be too dangerous to rely upon on uncorroborated and retracted confession. Learned counsel further argued that the two spy personnels who allegedly played heroic role for S.H.O. Tahir Hussain in the entire episode of investigation, have not been examined nor cited as witness. The prosecution has failed to examine Muhammad Arif on whose shop complainant received first call. He candidly argued that in fact the abductee caller boy has not been recovered from the possession of present appellants Mst. Razia and Mst. Qaiser Jahan but they themselves had brought him at P.S. On the telephone call of P.W. Rao Anwar Ahmed, S.H.O., P.S. Gulzar-e-Hijri where they were arrested; that on 27-8-1999 Mst. Qaiser Jahan had brought the boy at P.S. Herself who was returned back to her as per Roznamcha entry No,30 dated 27-8-1999 at 1430 hours maintained at the same P.S. Such entry is also brought on record. He also submitted that the appellant Nos. 2 and 3 being ladies were not habitual criminals but are simply house wives and the appellant No,2 Mst. Razia is aged about 35 years having 2 children and appellant No,3 Mst. Qaiser Jahan is aged about 27-28 years having 7 children. Learned counsel for the appellants has referred to several contradictions in the prosecution evidence and legal flaws in recording the confessional statement of accused Irshad alias Ishoo. ' Apart from the merits of the case learned counsel for the appellants has also argued that the parties have taken their summersault and buried their hatchets as a consequence whereof they have shun their differences for which P.W. Muhammad Ayoob, the complainant and P.W. Muhammad Iqbal brother of complainant have filed their affidavits before this Honourable Court, to the effect that they have forgiven the accused in the name of Almighty Allah and have no objection if they are acquitted in this case. ' On all these submissions learned counsel for the appellants has contended that the prosecution case suffers from various doubts for which benefit can be extended to the appellants besides co- accused but the trial Court has failed to make out proper appraisal of evidence and in view of the material available on record, the impugned judgment is liable to be set aside . In support of his submissions, he has relied upon the following case laws:-- "Sultan Ahmed v. Additional Sessions Judge, Mianwali PLD 2004 SC 758, Hasan Zafar v. State 2001 PCr.LJ 1939, Shera v. The State 2000 PCr.LJ 139, Ordinance XXII of 2000, Juvenile Justice System Ordinance, 2000 guidelines PLD 2000 Federal Statute 385 at page 391, State v. Muhammad Ashique 1994 PCr.LJ 696, State v. Ghulam Shabbir 1993 PCr.LJ 152, Ghulam Ali v. The State 1997 SCM R 1411, Nazar Muhammad v. State 1994 PCr.LJ 1829, Khan Said v. State 2003 P.Cr.LJ 531, Allah Ditta v. State 1988 SCM R 1489, Ghulam Rasool v. State 1999 SCMR 3085, Muhammad Nadeem .v. State 1988 M LD 973, Mukhtar Ahmed v. State 1999 PCr.LJ 1107, Mureed v. Golo 1997 PCr.LJ 184, Arif Nawaz Khan v. State PLD 1991 FSC 53, State v. Muhammad Naseer 1993 SCM R 1822, Shamoon alias Shamna v. State 1995 SCM R 1377, Rahat Ali v. The State 2001 PCr.LJ 98 (DB) Kar., Ahmed Sher v. The State PLD 1995 FSC 20 and Mahmood Ahmed v. The State 1995 SCM R 127." ' Mr. Mushtaqe Ahmed Kourejo, learned counsel appearing on behalf of the State has contended that this is case of abduction of a minor boy aged 6 years who was recovered by S.H.O. Rao Anwar Ahmed at Karachi by conducting raid at the house of appellant Mst. Qaiser and appellant Mst. Razia, was also available there that the appellnt Irshad alias Ishoo has recorded his confessional
---
## Page 4
statement being voluntarily made and in these circumstances conviction can be based on this piece of evidence alone. He further submits that the death sentence cannot be awarded to accused Irshad being minor; the entry No,30 was maintained in the Roznamcha on 27-8-1999 by A.S.I. Aijaz Rajpar and P.C. Nazir while the raid was conducted on 28-8-1999. However on these submissions, he supported the impugned judgment. ' We have given our careful consideration to the arguments of learned counsel for the respective parties, gone through the evidence and other material brought on record with the help of learned advocate for the appellants. ' We have also minutely gone through the evidence of prosecution witnesses with the assistance of learned counsel for the appellants who has pointed out towards a number of contradictions in evidence of prosecution witnesses. The perusal. Of evidence of P.W. Muhammad Ayoob shows that after 4/5 days of handing over the abducted boy to him, S.H.O. Tahir Hussain gave out that 2 persons namely Irshad alias Ishoo and co-accused Abdul Wahab in which they disclosed that they had' kidnapped his son, while in his cross-examination he stated that he did not disclose the name of accused to police. His statement was also confirmed by P.W. Muhammad Iqbal and both of them deposed that, as far as, their conduct and behavour is concerned, they had no grievance with accused Irshad alias Ishoo and co-accused Abdul Wahab out of whom accused/appellant Irshad worked as servant at their shop for 8/10 days, but co-accused Abdul Wahab, continued working at their shop till they are arrested in this case. Whereas P.W. Muhammad Anwar, Incharge S.H.O. Police Station B-section deposed that P.Ws. Had provided names of accused in their statement u/s 164, Cr.P.C. However, this was denied by above P.Ws. In this context. Muhammad Siddique, brother of complainant, who was not examined, came up with entirely contradictory version in his statement u/s 164 Cr.P.C. Both accused were ousted from their shop as they were found involved in illegal activities. On the other hand, P.W. Tahir Hussain S.H.O, P.S. B-section claimed in his evidence that he came to know through two spies that accused Irshad alias Ishoo and Abdul Wahab might have abducted Muhammad Amjad. Similarly, P.W Muhammad Ayoob stated in his evidence that the voice of caller was identified by him to be that of accused Irshad. In this regard P.W. Muhammad Iqbal stated in his evidence that after second call, complainant disclosed him that voice of caller who demanded ransom was Irshad Ali alias Ishoo which clearly shows that before lodging F.I.R. It is well settled that it was Irshad who demanded ransom but surprisingly they did not disclose his name in the F.I.R. On the other hand both of them stated in their examination that they had no suspicion as regards the kidnapping of Muhammad Amjad was concerned. P.W. Muhammad Naeem owner of shop who called the complainant to attend second call, speaking about the caller received by complainant on 16-8-1999 at 8:00 p.m. At his shop when conversation was not disclosed to him by complainant. He did not disclose any thing about third call. As per F.I.R. It was Muhammad Arif who called the complainant to attend first call but he had not been examined. The identification test through voice of accused Irshad Ali alias Ishoo is not a sufficient piece of evidence in absence of any examination through voice of accused Irshad. All these facts create doubt as to whether demand for ransom was actually made through telephone or not. As regards to the source of information, involvement of accused Irshad and co-accused Abdul Wahab, statement of P.W. Muhammad Anwar, I.-C. S.H.O. P.S. B Section and P.W. Tahir Hussain appears to be inconsistent with each other. ' As regards the case of appellants Nos.2 and 3 are concerned, P.W. S.H.O. Rao Anwar Ahmed of P.S. Gulzar Hijri Karachi deposed in his evidence that on 28-8-1999 he received spy information about presence of abductee Amjad Ali in A-One apartments, who was abducted from Sukkur vide Crime No,137/1999 of P.S. B-section Sukkur on which he left for pointed place and received Flat No,B5 wherefrom Amjad Ali was recovered in the captivity of two lady accused namely Mst. Qaiser Jehan and Mst. Razia Mangi who also were arrested under Mashirnama. This aspect of the case is
---
## Page 5
controverted by the appellant/accused Nos. 2 & 3. Appellant Mst. Qaiser Jehan has stated in her statement u/s 342, Cr.P.C. That in fact on 27-8-99 she had approached P.S. Herself with minor boy Amjad Ali and disclosed that he met them and her son three days back and realizing the responsibility of a good citizen, they kept the boy safe, and then she was directed by Police to keep the boy with her in safe custody till the arrival of Police who came into. Contact with the parents of boy, as no security arrangements were met for keeping minor boy. Entry No,30 dated 27-8-1999 was also maintained in the Roznamcha to that effect in which Telephone number of her residence was also disclosed. She further stated that actually no raid was conducted but S.H.O. Anwar Ahmed of P.S. Gulzar Hijri had made a telephonic message at his house in order to bring boy at P.S. As his parents approached P.S. But when they emerged at P.S. They were taken into custody. In cross- examination S.H.O. Rao Anwar Ahmed also admitted that before making entry No,26 dated 28-8- 1999 he had seen entry No,30 dated 27-8-1999 during cross-examination he also admitted that no private persons were called to act as Mashir of arrest. ' In this context, P.W. Tahir Hussain .Deposed in his evidence, that on 27-8-1999 when he again received information through spy person that accused have removed the boy to Karachi but he left for Karachi after seeking departmental permission and on reaching there i,e, 28-8-1999, he searched through private person and again met with spy information through same spies that abductee has been recovered by Gulzar Hijri P.S., hence he rushed there and found the information true. He deposed that finally the minor boy and two accused were handed over to him. When returned back on 31-8-1999 it was learnt that accused Irshad Ali and Abdul Wahab were arrested. ' In view of the above discussion, it seems surprising that despite of having firm opinion before lodging F.I.R. With regard to the identity of caller, who demanded ransom that it was accused Irshad alias Ishoo. Thereafter no cogent reason as to who prevented complainant and accused Irshad being disclosed in the F.I.R. No identification test through voice of accused Irshad was ever held. The incident being unwitnessed, mere word of complainant as to the identification of accused Irshad through his voice is insufficient. It is well settled that the identification of accused is a very weak piece of evidence and cannot be relied upon in absence of other material. With regard to the source of information regarding involvement of accused Irshad Ali. It is not proved beyond reasonable doubt inasmuch as the statement of P.Ws I.C. S.H.O. Muhammad Anwar, S.H.O. Tahir Hussain disclosing contradictory story to each other and were not supported by P. Ws. Muhammad, Ayub, Muhammad Iqbal and Muhammad Sadique which create doubt. The involvement of accused Irshad Ali is also not proved beyond shadow of reasonable doubt by the prosecution. As regards the case of appellant Nos. 2 and 3 is concerned it seems that two spy personnels have played heroic role for P.W. Tahir Hussain during the entire episode of investigation who has not been examined nor cited as witnesses despite of the fact that they were in their easy approach. It is surprising to note that after Entry No,30 dated 27-8-1999 being mentioned in the Roznamcha maintained at P.S.Gulzar Hijri Karachi. The investigation of the case took its pace amazingly at a high rate. On the very day i,e, 27-8-1999 P.W. Tahir Hussain received information through his spy personnels firstly regarding removal of abductee to Karachi and whereafter when he was at Karachi, he again received information of same spies who told them that the boy was recovered through raiding party at P.S. Gulzar Hijri, Karachi. It is highly improbable that he did not wait for arrest of accused/appellant Irshad Ali and co-accused Abdul Wahab who was the proper person to inform regarding whereabouts of the abductee boy, P.W. Rao Anwar Ahmed who also acted with great astonishment and claimed of boy through raid while in his cross-examination he has admitted that before he left P.S. For conducting raid, he had seen entry No,30. It is also surprising on his part that he did not take any effort for scrutinizing the genuineness of said entry and did not ask anything from signatories of that entry. P.C. Nazir and A.S.I Aijaz Ali Rajpar, while leaving for raid,
---
## Page 6
handed over the charge of P.S. To A.S.-I. Aijaz Ali Rajpar who was one of the signatories of the entry No,30 which apparently appears highly doubtful. ' All these facts and circumstances create doubt in the prosecution is therefore, significance of Entry No,30 cannot be taken out of consideration which has shattered the genuineness of above said raid being allegedly conducted at the house of Mst. Qaiser, the appellant No,3. There is clear violation of section 103 Cr. P.C. And at different stages of investigations which is confirmed by the P.Ws. S.H.O. Rao Anwar Ahmed themselves during their cross-examinations and attested by Mashir P.W. A.S.-I. Iftikhar. In view of the above discussion the prosecution has also failed to prove the involvement of the appellants Nos.2&3 in the commission of crime, beyond shadow of reasonable doubt as far as merits of the case are concerned. ' As regards the confessional statement of accused Irshad Ali @ Ishoo is concerned, he along with co-accused Abdul Wahab were arrested on 30-8-1999 and were produced by A.S.-I., P.S. B-Section before Special Magistrate Municipal Corporation Sukkur on 7-9-1999, after delay of 7 days. P.W. Agha Khalid Special Magistrate deposed in his evidence that at 4-00 p.m he recorded statement of accused Irshad alias Ishoo and completed the same at 4-45 p.m. Confessional statement of co- accused Abdul Wahab was recorded at 5-45 p.m. During cross-examination he admitted that both accused were brought together on the same day. He also admitted that after recording of their confessional statement their custody was handed over to the same A.S.I. Ameer Baig. With regard to the voluntary nature of these confessional statements, P.Ws. Muhammad Ayoob and Muhammad Iqbal during their cross-examination before trial Court confirmed at least in respect of co-accused Abdul Wahab that his family members including women folks were detained at P.S. After recording confessional statement they were released. In this regard P.W. Tahir Hussain states about the manner in which agreement of accused Irshad Ali was sought for recording their confessional statement. He states that for the first time on 31-8-1999, he interrogated accused Irshad Ali on 31-8-1999 but he did not agree to make his confessional statement. He further states that he did not recollect as to when he interrogated him next time when he agreed for recording confessional statement. ' On this point, we shall also discuss the manner in which he recorded confessional statement of co-accused Abdul Wahab. He admits in his cross-examination that for the first time he interrogated the accused Abdul Wahab on 31-8-1999 but he did not agree to make his confession, on next round of interrogation i,e, 3-9-1999. He agreed to make 'confession but not before any Magistrate and lastly it was on 6-9-1999 when accused Abdul Wahab agreed to make his confession being voluntarily made before Magistrate. However, he denied the fact that he had detained his family members to seek his agreement in order to record confession. ' From the above discussion, in our opinion, it appears that voluntary nature of confessional statement of accused Irshad Ali is concerned, P.Ws Muhammad Ayoob and Muhammad Iqbal, made in their cross-examination to the effect that they had witnessed the family members and women folks of co-accused Abdul Wahab before Magistrate coupled with the manner adopted by S.H.O. Tahir Hussain in seeking agreement of co-accused for recording their confessional statement, had completely shattered the integrity and credibility of the investigation agency. The confessional statement of the accused Irshad Ali also cannot be termed as voluntarily made. Judicial history presented abundant cautions against danger of placing too much reliance on uncorroborated and retracted confessions. Therefore, it would be dangerous to place too much reliance on uncorroborated and retracted confessions of accused Irshad Ali. The reliance is placed on the case of Imran Bahir Farooqi v. The State reported in 1990 PCr.LJ 677, wherein under similar circumstances besides, other sentences, sentence of death awarded to the accused was also set aside.
---
## Page 7
' With regard to the infirmities in recording confessional statement of accused Irshad Ali, it is admitted position that confession was recorded after the court hours. Besides there was delay of seven days in recording confessional statement of accused who was arrested on 30-8-1999 but produced before Magistrate on 7-9-1999 therefore, in view of conduct by investigation agency as discussed above, it cannot be ruled out that the ensuing period being used to cause.Torture and coercion on the accused to seek his agreement for recording his confessional statement, and that the custudy of accused was handed back to same A.S.I. Who produced them before Magistrate and that the part of the confessional statement was accepted and remaining part was rejected by the co-accused, involved on the basis of the confessional statement of accused Irshad Ali alias Ishoo being acquitted under the impugned judgment passed by the trial Court on the point of benefit of doubt. Accused Irshad has denied the voluntary nature of his confession and…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.