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Petitioner: MUHAMMAD RAMZAN and others VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Salahuddin Panhwar Title: MUHAMMAD RAMZAN and others vs The STATE Case No.:Spl. Cr. A.T. Appeals Nos.14, 15 and 17 of 2010Appeal No,14 of 2010Appeal
JUDGMENT
Reported As: 2015 YLR 327 Result: Appeals allowed Judgment JUDGMENT ' SALAHUDDIN PANHWAR, J.---Through instant appeal(s), appellants Muhammad Sajid, Muhammad Riaz, Muhammad Jaffar, Shaukat Ali, Muhammad Ramzan and Amjad Hussain have assailed judgment dated 31st March 2010; passed by Anti-Terrorism Judge-III at Karachi in Special Case No, 11/2007 (Re: The State v. Muhammad Sajid and others), whereby appellants were convicted under section 7(e) of ATA, 1997 read with section 365-A/34, P.P.C.; thereby they were sentenced to suffer imprisonment for life and each of the accused was also directed to pay fine of Rs,50,000 to the father of kidnapped girl Mst. Esha and in case of failure, accused were to undergo penal servitude for six months. Further they were convicted under section 7(i) of ATA, 1997 and sentenced to suffer R.I. Five years. However, both the sentences were directed to run concurrently with benefit of section 382(b), Cr.P.C. 2. Succinctly, but relevant facts as set out in the prosecution case are that complainant Faraz Masood lodged F.I.R; contending therein that "he is resident of Bungalow No,D-82, Block-4, Gulshan- eIqbal, Karachi, his sister Esha daughter, of Syed Akhtar Saeed, aged about 18 years on 24-2-2007; at morning time left house for University. At about 12.30 p.m. His mother received a telephone call of Mst. Esha on their PTCL No:4992662 from cell number: 0300-2509223, of his father but it was in use of his sister; caller demanded ransom amount of Rs,25 lacs but his mother replied in negative; caller asked her to talk with her daughter, thereafter his sister conversed with his mother and disclosed that they had kidnapped her". It is also asserted that complainant made efforts to get clue about the incident and reported the matter with Police Station Mubina Town, alleging that, the unknown culprits had kidnapped his' sister for ransom.
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3. Record further reveals that S.I. Muhammad Luqman arrested accused Muhammad Sajid. After interrogation, on his pointation arrested accused Shoukat Ali, Muhammad Ramzan Muhammad Riaz and Muhammad Jaffer on the same day at University Road and thereafter all the arrested accused persons led the police party at about 04.30 a.m. To house No,L-368 Sector H Taisor Town Surjani Town, Karachi where accused Amjad Hussain was available and he was arrested, in-further search of said house kidnapped girl Mst. Esha was recovered. Police had secured arms from the possession of all the accused and separate cases were registered against them under Arms Ordinance. Thereafter investigation was entrusted to AVCC Karachi who sent up all the accused persons for their trial. 4. All the appellants accused persons were inducted by the trial Court; wherein they pleaded not guilty and claimed for trial. 5. To substantiate the charge, prosecution examined following clever witnesses:-- (1) P.W.1/Exh.11 SIP Muhammad Luqman.He produced statement under section 154, Cr.P.C. As Exh.l1(a), F.I.R. As Exh.11(b), memo of arrest of accused Muhammad Sajid as Exh.11(c), memo of arrest of accused Muhammad Jaffer, Muhammad Riaz, Shoukat and Muhammad Ramzan as Exh.11(d) memo of arrest of accused Amjad Hussain as Exh.11(e), memo of recovery of arm from accused Amjad Hussain as Exh.11(f) and also produced four entries No,5 dated 24-2-2007 as Exh.11(g) entry No,10 dated 24-2-2007 as Exh.11(h) entry No,50 dated 25-2-2007 as Exh.11(i) and entry No,53 dated 25-2-2007 as Exh.11(j). (2) P.W.2/Exh.13 Iqbal Ahmed. He produced memo of alleged car used in crime as Exh.13/A. (3) P.W.3/Exh.14 Mr. Maqbool Ahmed Memon. He being Judicial Magistrate XI Karachi East had conducted identification parade of accused Muhammad Riaz and Shoukat on 3-3-2007 through P.W.Ajmalur Rehman from whom the car on rent was obtained by the accused. He produced memo of identification parade of accused Muhammad Riaz at Exh.14(a) and of accused Shoukat at Exh.14(b) along with two copies of CNIC of P.W. Ajmalur Rehman. ' He also produced Judicial Confessions recorded by him. Judicial Confession of accused Muhammad Jaffar as Exh.14(c), accused Amjad Hussain as Exh.14(d), accused Muhammad Ramzan as Exh.14(e), accused Muhammad Sajjid as Exh.14(f), accused Shoukat at Exh.14(g) and accused Muhammad Riaz as Exh. 14(h). (4) P.W.4/Exh.16 Ajmalur Rehman. He produced car Hire contract signed by accused Shoukat at Exh.16/A, his CNIC Exh.16/B and memo of securing of Car No,AKW-848, (SUZUKI-ALTO) white colour as Exh.16/C. (5) P.W.5/Exh.17 Suresh (Mashir). (6) P.W.6/Exh.18 SIP Ch. Manzoor Ahmed. He being posted in AVCC acted as mashir to the memo of the car AKW-848 Suzuki Alto white colour produced by P.W. Ajmalur at AVCC. He also acted as mashir to memo of securing of car hire contract signed by accused Shoukat Ali with his CNIC. (7) P.W.7/Exh.19. Faraz Masood. (Complainant). He has produced the memo of inspection of the place from where she was abducted as Exh.19/A. (8) P.W.8/Exh.20. Mst. Alia Akhter. (9) P.W.9/Exh.21. Syed Akhter Saeed. (10) P.W.10/Exh.22.Esha Akhter. (Abductee). (11) P.W.11/Exh.23. Inspector Bashir Ahmed (I.0). 6. Statements under section 342, Cr.P.C. Of the appellants were recorded, wherein they pleaded their innocence, however they did not lead defence evidence nor record their statements on oath under Section 340, Cr.P.C. 7. Learned counsel for appellants, except appellant Muhammad Sajid has, inter alia, contended that P.W.1 SIP Muhammad Luqman, who lodged F.I.R., conducted the entire investigation but under
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the provisions of ATA, SIP cannot investigate the case; according to the prosecution appellant Muhammad Sajid made disclosure regarding the incident but no such statement was placed before the Court and even under ATA law only DSP is competent to record the statement, therefore, all further proceedings are illegal and not reliable; though place of recovery was situated in thickly populated area but no mandatory compliance under section 103, Cr.P.C. Was observed.; ownership of house wherefrom alleged abductee was recovered, was not proved; it is claimed by prosecution that ransom was demanded through mobile of the abductee but it is strange that not a single mobile was recovered from any accused or abductee; abductee while recording her statement before the Court did not identify the appellants, on the contrary she exonerated the appellant Muhammad Sajid and further contended that she is deposing at the instance of police. Further, it is contended that there is difference in signature of Shoukat on document pertaining to the rent-a- car and statement under section 342, Cr.P.C.; identification parade does not disclose the name and parentage of dummies, though according to criminal circulars learned Magistrate is bound to do so; all the confessional statements were recorded on the same day, such statements are stereotypes, delayed about ten days, therefore, such statements have no evidentiary value. In support of his contention, he has relied upon cases of Pervaiz Masih v. State (2005 PCr.LJ 1232), Mst. Askar Jan v. Muhammad Daud (2010 SCM R 1604), Dhani Bakhsh v. State (2006 PCr.LJ 1671), Abdul Hameed v. State (2012 PCr.LJ 653), Muhammad Shah v. State (2010 SCM R 1009), Sabir Ali v. State ( 2011 SCM R 629), Shafqat Mehmood v. State (2011 SCM R 537), Muhammad Pervez and others v. State (2007 SCM R 670), Ghulam Qadir v. State (2008 SCM R 1221), Muhammad Akram v. State (2009 SCM R 230), State through Advocate- General, Sindh v. Mooso (2006 SCM R 1257), Abdul Sattar v. State (2005 M LD 1911) and Dr. Khalid Moin v. State (2006 PCr.LJ 639). 8. Learned counsel for the appellant Muhammad Sajid argued that it is a matter of record that investigation of this case was handed over to the AVCC on the same day, in spite of that all the investigation was carried out by SIP Muhammad Luqman, which shows that at the instance of complainant this police officer crossed his limits and implicated the appellants in false case; it is strange that when SIP Muhammad Luqman was on a patrolling in the morning at about 8:30 a.m., he received a message that one girl has been kidnapped by some unknown persons, he rushed towards there, thereafter he directly reached at the house of victim party but how he came to know about the name, parentage and address of the abductees, the is aspect makes the case of prosecution totally dubious; according to SIP Muhammad Luqman after arrest of accused Muhammad Sajid he contacted with his other accomplices but record reveals that no contact was made by accused Muhammad Sajid rather such phone was made by SIP Muhammad Luqman himself; though abductee was recovered on the next day i,e, 25-2-2007 and statements of witnesses were recorded on 27-2-2007 but not a single witness disclosed in his statement that abductee informed them about the manner of incident and name of any assailant. In support of his contention he has relied upon cases of Abdul Latif v. Additional District Judge, Khanewal (2008 SCM R 366). 9. Conversely, the learned A.P.G., while refuting the above contentions raised by appellants' counsel, argued that on the pointation of accused Muhammad Sajid, whole case was detected and recovery of abductee along with weapons was effected thus such information and recovery is admissible under Article 40 of Qanun-eShahadat Order, 1984; impugned judgment is in accordance with law and cannot be interfered at this stage. He relied upon cases of Nazir Shehzad v. State (2009 SCM R 1440), Mir Muhammad v. State (1995 SCM R 610), Fazal Rehman v. The State (PLD 2004 SC 250), Elahi Bakhsh v. State (2005 SCM R 810) and. Anwar Shamim v. State (2010 SCM R 1791). 10. Heard the learned counsel for the respective parties and examined the case law cited at the Bar.
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11. The perusal of the record shows that beside abductee, P.W.2 Iqbal Ahmed, is the only eye- witness of the alleged incident, who is the first informant of the incident, therefore, evidence of this witness has great significance and requires to be examined first. The relevant portion of examination in chief is reproduced hereunder:-- P.W.2 Iqbal Ahmed "On 24-2-2007 I went to Yaqeen School in order to leave my children in the school. At the distance of 500/600 yards from the school I heard cries of one girl and after of hearing of cries I saw one person was forcibly putting the girl in the car, I therefore, followed the said car, but when I reached at Gulshan Chowrangi, the car disappeared. I however after noting the number of car as it was "AKW848" Suzuki Alto white coloured informed the above incident on '15' through my cell phone Number 0300-8292620. On 2-3-2007 I received telephone from ASI Bashir Ahmed wherein he directed me to be present in AVCC office on 2-3-2007 for statement and identification of car. I accordingly reached in AVCC office at 5:00 p.m. Where I saw 8/9 cars parked together and from those cars I identified the car in which girl was forcibly put. The said car was also having number AKW-848. The Mashirnama was also prepared in my presence as well as in presence of the Mashirs Ch. Manzoor Ahmed and HC lqrar Ahmed. I also signed the Mashirnama which I produce at Exh.13/A. It is same, correct and bears my signature. Thereafter, my 161, Cr.P.C. Statement was recorded. The car available outside the court is same. ( P 197) ' The perusal of examination-in-chief of above witness it becomes quite obvious that:-- (i) he saw only one person forcibly putting the girl in car; (ii) he informed the incident to '15' through his mobile phone Number 0300-8292620'. (iii) he never claimed to have identified the accused persons or the girl; (iv) having informed to '15' on date of incident he never came in contact with police till 2-3-2007; (v) he only identified the alleged car, which was used in instant crime. ' Now let's see what P.W.1 SIP Muhammad Luqman, who received such information, states. For a comparative analysis, the relevant portion of examination-in-chief of P.W.1 SIP Muhammad Luqman is reproduced hereunder:-- "on 24-2-2007 I was posted as Duty Officer at Police Station Mubina Town. My duty was from 08.00 a.m. To 8.00 pm. On that day at 8.15 a.m. A. S. I. Saleemuddin sent a telephonic message from Police Station Gulshan-e-Iqbal, that he received message from Gulshan Base that one person namely Iqbal whose mobile telephone No,0300- 8292620 sent message to him that four persons took forcibly one girl in their car bearing No,AKW-848 and they were going towards Gulshan Chowrangi. The said Iqbal also told him that above incident took place near Yaqeen School Block-4 Gulshan-e-lqbal". 'The above portion of the evidence of the P.W.1 SIP Muhammad Luqman does not support the version of the P.W.2 Iqbal Ahmed regarding number of accused persons. Be as it may, what the joint reading of the above portions makes one thing quite clear and obvious that till such time the prosecution possessed the knowledge of following facts only:-- (i) abduction of an unknown girl in a car from Yaqeen School by unknown accused persons; (ii) Incident was allegedly seen by P. W.2 lqbal alone. (underlining is supplied for emphasis) ' However, the further examination-in-chief of P.W.1 SIP Muhammad Luqman is quite strange which is reproduced hereunder:- "...I while handing over the charge to WHO Zahid also went towards place of incident vide roznamcha entry No,5. 1 also made inquiry from nearby vicinity and on inquiry 1 came to know through brother of victim girl namely Faraz Masood son of Syed Akhter Saeed at Bungalow No,D- 82 who told me that his sister namely Eisha daughter of Syed Akhter Saeed was kidnapped by unknown persons. 1 therefore recorded his 154, Cr.P.C. Statement at above mentioned place.
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Before reaching at bungalow No,D-82 I did not receive any knowledge about the place of incident" (underlining is provided for emphasis) It is quite strange rather unbelievable that how the P.W.1 SIP Muhammad Luqman straight away reached to the house of the alleged abductee and recorded statement of Faraz Masood (brother of abductee) on 24-2-2007 at 1245 hours (Exh.11(a). The P.W.1 SIP Muhammad Luqman has attempted to place explanation by saying that:- "I reached at the house of complainant after making inquiries and knocking the doors of Mohalla people" ' but this stand belies by the complainant (brother of abductee) and other witnesses (mother and father of abductee), who have stated in their evidences that: P.W. Complainant Faraz Masood "On 24th February, 2007 J was at my house. At about 02.00 p.m. Police inspector Luqman came at our residence whom the whole incident was appraised. On 26-2-2007 at about 08.00 a.m. My sister Mst. Esha came at home along with a team of police. ' P.W.8 Mst. Alia Akhter "On 24-2-2007 I was at my house it was in the morning time. My daughter Esha Akhter had gone to NED University Karachi... It was at about 12.30 noon I received a call on my PTCL number. And caller informed me that my daughter Mst. Esha had been kidnapped and demanded Rs,25 lacs as ransom. At about 12.45 noon I contacted my husband on telephone and informed him about the incident who also returned home. On 24-2-2007 my son Faraz had lodged the report at Police Station Mubina Town, Karachi. ' In her cross examination she stated that "police had not come at our residence on 24-2-2007". P.W.9 Syed Akhter Saeed. "On 24-2-2007 I was in my office when at about 12.45 noon I received phone call from my wife and she informed me about the incident, I immediately came back at my residence. ' On the next day i,e, 25-2-2007 my daughter returned to house along with police at about 8.00 a.m. ....My son Faraz had lodged the report at PS on 24-2-2007 with Police Station Mobina Town. ' In his cross-examination he stated that "It is incorrect to suggest that on 24-2-2007 police had come at our residence and informed that my daughter Esha had been kidnapped from Gulshan Chowrangi". ' The evidence of the above P.Ws makes it very clear that they did not inform any one about abduction till lodgment of F.I.R. Further, it is also a matter of record that abductee was only seen by P.W.2 Iqbal Ahmed who never claimed to have identified the abductee girl with reference to her parentage or address. 12. In view of what has been discussed above, the manner in which P.W.1 SIP Muhammad Luqman claimed to have reached to house of abductee and lodged the F.I.R. Is neither natural nor confidence inspiring. Here we would like to add here that prosecution story, being foundation, on which edifice of the prosecution case is raised, occupies a pivotal position in a case, it should, therefore, stand to reason and must be natural, convincing and free from any inherent improbability. This is a cardinal principle of law that it is neither safe to believe a prosecution story which does not meet said requirements nor a prosecution case based on improbable prosecution story could sustain conviction...Reference if any can be made to the case of Mst. Shamim v. The State (2003 SCM R 1466). 13. Before stepping further, it would be very important to observe that the instant case appears to have been revolving around P.W.1 S.I. Muhammad Luqman who not only reached to the house of an unknown abductee within few hours but arrested the unknown culprits and recovered the abducteq,,on following day although he had handed over the investigation after recording the F.I.R. Here, it is important to refer to the provision of subsection (1) of section 156 of the Code of Criminal Procedure which deals with the power of officer-in-charge of a police station to investigate without
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an order of Magistrate. It is obvious from the said provision that only an officer Incharge of the police station having jurisdiction over the local area within the limits of a police station can investigate a cognizable offence or any other person covered by the definition of the officer Incharge of a police station given in clause (p) of section 4 of the Code, which, in the absence of officer Incharge of a police station, includes officer Incharge present at the station house who is next to the officer Incharge of the police station and is above the rank of the constable or when the Provincial Government so directs, any other police officer so present. (State v. Bashir, reported as PLD 1997 SC 408). We shall come to such conduct of the P.W.1 S.I. Muhammad Luqman later. 14. We are quite conscious of the fact that it would not bring the efforts of police official to nullity if he, being recorder of the F.I.R., also conducts investigation but such departure should be with some reasoning. To find out some reasoning and logic which compelled P.W.2 S.I. Muhammad Luqman to step into duties of Investigating officer we have found the following from evidence of this P.W . ' Exh.11(h) Roznamcha entry No,10 at 1300 hours date 24-2-2007 ".........Therefore, on this report of complainant after returning at police station registered case Crime No,60/07 offence under section 365/A, P.P.C. And investigation of case is being dispatched to Incharge AVCC. The higher officers were informed through phone" In his cross-examination: "It is correct that on 24-2-2007 after completing my duty from 8:00 a.m. To 8:00 p.m. I returned to my home." "It is correct that entry No,10 was entered by me at 1.00 a.m. It is correct that I have made mention in the entry No,10 that the investigation of this case being handed over to AVCC" "I am operating operation section. .... I however say that investigation section is also situated in same premises" ' On this P.W. Mashir Surersh also stated that: "It is a fact that investigation branch of Police Station Mobina Town is situated in the same building but who was incharge of investigation branch whose name I do not know. Our police party including SIP Muhammad Luqman belonged to operation branch of Police Station Mobina Town" In view of above the conduct of P.W.1 S.I. Muhammad Luqman does not appear to be natural to dress himself up as Investigating officer particularly when he (P.W.1) admitted in his cross examination that "During the entire period I had never. Informed to my investigation incharge about the situation of present case". 15. However, at this juncture, it would be germane to examine the evidence of P.W.1 S.I. Muhammad Luqman in comparison with evidence of other witnesses with regard to the manner of unearthing the crime from the moment he left police station for search of abductee. For that relevant portion (s) are reproduced hereunder:-- "I therefore along with subordinate staff left the PS and when I reached Block-4 I received information that accused Sajjid involved in the present incident is present at footpath situated near Regency Plaza Block-4, Gulshan-eIqbal duly armed" ' Although it is a matter of record that till such time house inmates of the alleged abductee or any other source had not shown any suspicion about involvement of accused Sajid in the incident. "After receiving such spy information I therefore arrested him in presence of mashirs PC Jawed Khan and PC Suresh I also made interrogation from said Sajjid in respect of Crime No,60/2007 and during the course of interrogation accused Sajid disclosed that he along with Accused Sajid further disclosed me that other accused left him in block-4 in order to watch the movements of inmates of abductees" ' The accused Sajid is resident of Block-4 Gulshan-e-Iqbal, Karachi and per statement of abductee "Among the 6 accused who were present in the court I knew accused Sajid prior to 24-2-2007 by name since about one year. My parents and my brother Faraz also knew accused Sajid". Thus
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leaving him to watch movements of inmates was/is not logical else he should have been found near house of abductee whom he knew well. However, P.W.5 PC/ Mashir Suresh stated that "On 26- 2-2007 at 1240 hours SIP Muhammad Luqman received message that some person was standing near Regency Plaza Block-4A, Gulshan-e-Iqbal in suspicious condition" meaning thereby that it was an information about presence of some suspect and not suspect of this crime. ' P.W. S.I. Muhammad Luqman continues: ' Examination-in-chief. "Thereafter, I brought the accbsed Sajid at one PC where accused Sajid made call on the mobile number of kidnappee Esha where accused Sajid at my directions talked with his companions/accused that he had settled the amount of ransom with the parents of girl which should be taken by all of you from Mosmiat Chowk near Sharaton Square University Road" Cross Examination "The PCO from which accused Sajid talked with his companion on telephone is situated near Margala Heights Scouts Colony It is correct that Margala Heights is also very near to our PS as same are at the distance of five hundred yards" "PCO was in fact closed at that time but I called the owner of the PCO from his house who opened his PCO and allowed us to talk with theni" "It is correct to say that neither accused Sajid made telephone from PCO nor accused Riaz and Jaffar reached at Mosmiat chowk and nothing has been recovered nor any pointation was made in respect of house where abductee was made hostage to Riaz and Jaffer." ' From the above the P.W. S.I. Muhammad Luqman specified that it was accused Sajid who talked with other accused persons from PCO, which was got opened, and was situated near Margala Heights but the P.W.5 Mashir Suresh gave completely different picture while saying that:-- Examination in Chief: "Thereafter accused Sajid led the police party to Bakhsh Ali Goth from where he made a call again says that call was made by SIP Luqman from PCO and called some persons at Mosmiyat Chowk on Sheraton Square on University road...... Cross examination: "Bakhsh Ali Goth is at the distance of less than half a mile from Margalla Heights" ' SIP Luqman had made a call from PCO which was open at that time" "SIP Luqman had made call from PCO while other police personnels were standing outside the PCO" 16. This casts serious doubt about manner of arrest of accused Sajid, places of the subsequent events, including arrest of other accused persons. Besides this, it is quite illogical, unbelievable and even against the human behaviour and experience that the other accused persons came at the Mosmiyat Chowk on the call of the S.I. Muhammad Luqman particularly it was not the call from accused Sajid who was supposed to have made such call. Even otherwise, it is a matter of record that no mobile phone has ever been recovered from any of the accused persons as is evident from the admission of the P.W. Suresh that "No mobile phone was recovered from any accused nor from abductee nor from the house from where the girl was recovered. This brings serious clouds over prosecution story…
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