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Petitioner: MUHAMMAD QASIM alias UMAIR VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Naimatullah Phulpoto Title: MUHAMMAD QASIM alias UMAIR vs The STATE Case No.:Special Anti-Terrorism Appeal No.37 to 39 and Confirmation Case No.5 of
JUDGMENT
Reported As: 2015 MLD 559 Result: Sentence reduced Judgment JUDGMENT ' NAIMATULLAH PHULPOTO, J.---Appellants Muhammad Qasim alias Umair, Farhan Khan and Raheel were tried by learned Anti-Terrorism Court No.III, Karachi in Special case No.48/2006 State v. Farhan Khan and others under sections 365-A/302/34, P.P.C. Read with section 7(a) & (e) ATA 1997, Police Station Landhi. Learned Judge, Anti-Terrorism Court No.III, by judgment dated 29-11-2008 convicted appellants under sections 7(e) ATA 1997 read with section 365-A/34, P.P.C. And sentenced them to death. Appellants were also convicted under section 302/34, P.P.C. And were sentenced to death. Moveable. And immovable properties of the appellants to the extent of Rs.1 lac each were ordered to be confiscated to the Government. The Reference for confirmation of death sentence was made to this Court by trial Court. Appellants have preferred appeals against the impugned judgment. By this single judgment, we intend to dispose of the aforesaid appeals filed by above-named appellants and reference made by trial Court. 2. Brief facts of the prosecution case are that on 13-9-2006, son of complainant, namely, Owais Ali aged about 12-1/2 left the house at about 5:00 pm for playing a game, thereafter did not return home till night. Complainant started search for his son for the whole night but could not succeed. On 14-9-2006 at 2:00 p.m., Qasim alias Umair, the son of female servant in the house of the complainant, informed complainant Sadaqat Ali that on 13-9-2006 at 05:30 p.m. His son met him at 174 bus stop, Landhi, and told accused Qasim to accompany him to a shop for purchase of a kite. It is alleged that accused Qasim refused to accompany the son of the complainant. On 14-9- 2006 P.W. Khan Muhammad met the complainant and told him that on 13-9-2006 at 05:30 p.m. He had seen his son in Black Queen Bus at 17-J Bus Stop. Complainant reported the matter of missing
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of his son to Police Station Landhi on 14-9-2006, such report was entered in the roznamcha entry by the police. On 15-9-2006 at 01:45 p.m. Complainant received a call on mobile that his son has been kidnapped and would be released on payment of ransom of Rs.5 Crore. Complainant replied to the caller that he had no such amount to pay him but he issued threat to the complainant that in case of non-payment of the ransom, harm would be caused to his son Owais. It is further alleged that on 22-9-2006, complainant received a call from kidnappers, they demanded Rs.4 Crore ransom, but he replied to the caller that he would arrange Rs.250,000, only. Complainant reported the matter to the CPLC, who along with AVCC authorities started efforts for the recovery of the son of the complainant. On 1-10-2006, demand was repeated but complainant replied that he has no sufficient means to make arrangement of such huge amount. During the aforesaid period, complainant was in contact with police. On 18-10-2006 complainant took cash of Rs.5 lacs and proceeded to Korangi-2 along with police officials for making payment of ransom and reached at pointed place at 12:30 midnight. The kidnappers asked the complainant to keep cash of Rs.5 lacs in the street and his son would be returned to him behind petrol pump at Korangi No.2. Complainant kept the money in the street but no one from the kidnappers appeared there to take the money and complainant returned back from the pointed place. On 20-10-2006, he received the calls and finally kidnappers agreed to receive Rs.2 lacs ransom. On 22-10-2006 kidnappers called complainant at 8:30 pm at Korangi No.2, kidnappers contacted him and asked him to leave the amount at the pointed place then his son would be released. Complainant kept the amount, caller threatened him to go away from the spot. He kept the amount at the corner of the street and saw that on the roof of adjoining house someone was continuously calling him and he was hiding his face. Complainant returned back but his son was not released. Finding no other way, complainant lodged FIR, it was recorded vide Crime No. 221 of 2006 at Police Station Landhi on 4-11-2006 at 0015 hours, under sections 365-A/34, P.P.C. During investigation 161 Cr.P.C. Statements of P.Ws. Were recorded. On 9-11-2006 complainant received a mobile call and he was told that his son has been murdered and his dead body has been thrown in nala. During investigation appellant Farhan and Muhammad Qasim alias Umair were arrested on 28-11-2006 and appellant Raheel was arrested on 13-4-2007. After usual investigation challan was submitted against accused Farhan Khan son of Asghar Ali Khan, Muhammad Qasim alias Umair son of Muhammad Ayoub and Raheel son of Muhammad Mushtaq under sections 365A/302/34, P.P.C. Of Anti-Terrorism Act, 1997. Accused Akber son of Akram was shown as absconder. 3. Charge against appellants Farhan Khan, Muhammad Qasim alias Umair and Raheel was framed by learned Judge, Anti-Terrorism Court No. III, Karachi at Exh. 7 under the above referred sections. To the charge, appellants pleaded not guilty and claimed to be tried. 4. At the trial prosecution has examined the following witnesses:- (1) P.W-1 Complainant Salaquat Ali Shahzad at Exh.11. (2) P.W-2 ASI Ghulam Asghar at Exh.12. (3) P. W-3 Muhammad Khursheed ASI at Exh.13 (4) P.W-4 Muhammad Shoaib Alam at Exh.14 (5) P.W-5 Muhammad Ayoub at Exh.15 (6) P.W-6 Nasir Ahmed Khan at Exh.16 (7) P. W-7 Khan Muhammad at Exh.7 P.W-8 Ghuffranuddin at Exh.18 (9) P.W-9 Muhammad Shabbir at Exh.19 (10) P.W-10 Zuhair at Exh.21 (11) P.W-11 Muhammad Tanveer at Exh.21 (12)P.W-13 Muhammad Afaq at Exh.23 (13)P.W-I4 Mr. Ahsan Ali Malik, Judicial Magistrate at Exh.24 (14)P.W-15 Mr. Maqbool Ahmed, J.M-Xl, Karachi East at Exh.25
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(15)P.W-I6 Dr. Abdul Razzak Shaikh at Exh.26 (16)P.W-l7 Muslim Shah at Exh.27 (17)P.W-18 1.0/SIP Ali Muhammad at Exh.30 (18)P.W-19 1.0 Tahir Naseer, SIP, 1.0 at Exh.31 (19)P.W-12 Shoukat Ali at Exh.22 5. The statements of appellants were recorded under section 342, Cr.P.0 at Exhs.34, 35 and 36. Appellant Mihammad Qasim alias Umair has denied prosecution allegations and stated that he was arrested on 28-11-2006. Regarding identification parade he has stated that P.Ws had seen him before the identification parade while he was in custody. On a question as to why P.Ws. have deposed against him, he replied that his mother was serving as maid servant in the house of complainant. On 13-9-2006 at evening time he told the complainant that his son had asked him to give him company as he was going to purchase kite but he had refused him and stated that he has not committed alleged offence. On 6-12-2006 Administrative Judge ATC had passed orders for his release for want of evidence, but he was not released by Ali Muhammad I.O. of the case. Other allegations have also been denied by him. Appellant' Raheel has also denied prosecution allegations and stated that he had never demanded ransom from complainant, no offence had been committed by him. He had surrendered before the police as his father was detained by the police. Regarding identification parade, he has stated that P.Ws. Muslim Shah and Ghaniul Haq had seen him in police custody before identification parade. Appellant Farhan Khan has also denied prosecution allegations and stated that P.Ws. Are interested and they have deposed against the appellants at the instance of Investigating Officer. P.W Muhammad Afaq had wrongly picked up him in the identification parade. He has pleaded innocence. All the appellants declined to give statements on oath in disproof of prosecution allegations and did not lead evidence in defence.
6. Learned Judge, Anti-Terrorism Court No.III, Karachi on the conclusion of the evidence, after assessm ent of evidence, awarded death sentences to the appellants by judgment dated 29-11- 2008 as stated above. 7. We have carefully heard learned counsel for the parties and perused the evidence and examined the case law cited at bar. 8. Mr. Habib Ahmad, learned Advocate for the appellants made the following submissions:-- (i) Unnatural death of deceased Awais Ali has not been proved as the dead body was unidentifiable as per medical evidence. ' Incident was un-witnessed. ' Last seen evidence was unreliable and the sufficient for recording conviction in the case. ' Identification parade of accused Muhammad Qasim alias Umair and. Farhan was held on 5-12- 2006 and incident occurred on 13-9-2006, such identification has no value. ' P.W. Afaq Ahmed did not identify accused Muhammad Qasim alias Umair in the identification parade; ' There was no evidence of abduction of the boy for ransom; (vii) There is no evidentiary value of 164, Cr.P.C. Statement of P.W. Ghaniul Haq as he has expired before his evidence. (viii)It is contended that owner of House P.W. Afaq has not deposed that he had seen the boy along with other persons in his house before the incident. It is also contended that dead body was recovered from Nala by Hydri police but no FIR was lodged by the concerned police. Lastly it is, argued that appellant Qasim alias Umair never led the police to the place where from clothes of the deceased were produced, appellants did not point out the place from where'they had thrown the dead body into Nala. ' In support of his contentions he has relied upon the following reported cases:-
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(1) Amin Ali and another v. The State (2011 SCM R 323) (2) Ghulam Qadir and 2 others v. The State (2008 SCM R 1221) (3) Hamid Nadeem v. The State (2011 SCM R 1233) 9. In the case of Amin Ali (2011 SCM R 323) it is held as under:-- "Thus, we are left with the solitary statement of the investigation officer. It is not out of place to mention here that the recovery was made from the jurisdiction of another police station but the Investigation Officer did not go to the said police station or make any entry so as to show his presence at the relevant time within the jurisdiction of that police station or took some help from the said police station. This also creates doubt about the genuineness of the recovery. In these circumstances, no implicit reliance can be placed on such type of evidence." 10. In the case of Ghulam Qadir's case (2008 SCM R 1221) it is held as under:-- "Needless to emphasize that belated examination of a witness by the police may not be fatal to the prosecution case but where the delay is unexplained, accused has not been named in the FIR and circumstances justify that the open FIR and delay have purposely been manoeuvred to name the accused later, such managed delay and gaps adversely affect the prosecution case." 11. In the case of Hamid Nadeem's case (2011 SCM R 1233) it is held as under:- "Regarding recovery, of clothes of appellant, allegedly stained with blood of the deceased, suffices to mention that the same were not matched with the blood of deceased. No positive report regarding that is available on record." 12. Mr. Khadim Hussain, Deputy Prosecutor General Sindh, argued that prosecution has proved its case against the appellants beyond any shadow of doubt. It is further submitted that there was reliable circumstantial evidence on the record against the appellants. Lastly, it is submitted that the trial Court has rightly appreciated the evidence and recorded conviction in this case. 13. Mr. A. Q. Halepota, learned Advocate for the complainant argued that the complainant had no enmity or motive to falsely implicate the appellants in the commission of offence. It is further argued that complainant had not given the name of any of the appellants in FIR. He has also argued that all the prosecution witnesses belong to various castes and of different culture. There is no reason to disbelieve their evidence. It is submitted that appellant Qasim was known to the abductee as his mother was serving in the house of the complainant. Abductee was killed as the appellants had no choice except to destroy the ocular evidence. Mr. Halepota submitted that this is the case of circumstantial evidence but all the pieces of evidence are connecting the appellants in the commission of offence. He has argued that accused Qasim along with his companions had kidnapped the boy, detained him in the rented house. Appellant Farhan and Qasim pointed out room where boy was detained. It is argued that appellants pointed out place on 28-11-2006 from where dead body was thrown to Ganda Nala. Mr. Halepota argued that appellant Qasim alias Umair produced blood stained clothes of deceased, scarf, a pair of chappal on 30-11-2006 near advertising board of Mehrunnissa Hospital, Karachi, these are relevant factors in this case to show the conduct of the appellants and such conduct is admissible under Article 22 of the Qanun-e- Shahadat Order. He has argued that father of the deceased had identified the body of his son that is why he took the body for burial to native place. Civil Judges/Judicial Magistrates had conducted the identification parade in which the appellants were picked up by the prosecution witnesses. Mr. Halepoto contended that unnatural death of deceased is proved from the medical evidence. Dead body was found naked in the ganda nala, which indicated that the clothes produced by the appellants belonged to the deceased. Mr. Halepota further contended that delay in lodging of FIR would not be fatal for the prosecution in this case as appellants had not been named in the FIR. He has argued that abduction for ransom have been proved by cogent evidence. He has also argued that P.W. Zuhair Daudi Bohra, Justice of Peace, accompanied the complainant and police officials to the Noorani Basti where ransom amount was to be paid to the appellants Raheel and Qasim
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and they were identified. They were seen by P.W. Zahid Daudi Bohra and he was independent witness. Mr. Halepota argued that crime was detected on the basis of mobile number on which complainant had received calls for payment of ransom and accused Farhan was arrested on 28- 11-2006. Subsequently, accused Qasim and Raheel were arrested. He has submitted that accused led the police to the Nala where they had thrown the dead body of the deceased. It is submitted that under Article 40 of Qanun-e-Shahadat such piece of evidence is admissible. He had submitted that 164, Cr.P.C. Statement of P.W. Ghaniul Haq was recorded and it has been produced by the Judicial Magistrate in his evidence but P.W. Ghaniul Haq could not be examined as he was murdered before his evidence in this case. Lastly, he has submitted that case for kidnapping for ransom and murder have been proved against the appellants and prayed for dismissal of appeals. In support of his contentions, he relied upon the cases reported as:-- (1) Naseem Akhtar another v. State (1999 SCM R 1744) (2) Abdul Samad v. State (PLD 1964 SC 167) 14. In the case of Naseem Akhtar (1999 SCM R 1744) it is held as under- "It has been held that joint leading by the two appellants in the reported judgment to the place from where the clothes of the deceased were recovered is also an act and that the same can be fastened to each appellant as a piece of conduct under section 8 of the Evidence Act (now Article 22 of Qanun-e-Shahadat Order, 1984) in the absence of any bar in such section itself. In the present case, though there might be some objection to the admissibility of joint recoveries and joint pointation by the appellant, the fact that the two appellants led the police to the place from where the dead body of the deceased and motorcycle were found and recovered are conducts of the appellants which are admissible under Article 8 of Qanun-e-Shahadat Order, 1983 and can be used as corroboration for the judicial confessions. At leak as regards the dead body, it has also been noted that since the boy disappeared nobody knew his whereabouts and the boy was recovered only after the appellants had been arrested on 68-1994. Both the appellants led the police and others to the place where the body was found and this is a very important and admissible conduct against the two appellants and provides corroboration for their involvement in the crime and for their confessions. " 15. In the case of Abdus Samad (PLD 1964 Supreme Court 167) it is held as under:- "Murdered child last seen in company of accused---Accused having exclusive knowledge of place where remains of child were found, sufficient to establish charges of kidnapping and murder. 16. We have given our due consideration to the arguments, advanced by the learned counsel for the parties. 17. As regards to the unnatural death of deceased Owais, prosecution has examined Dr. Abdul Razzak. He has deposed that on 15-9-2006 he received a dead body brought by ASI Ghulam Rasool for conducting postmortem examination. It was dead body of a male aged about 13 to 15 years and it could not be identified by any person. He started postmortem examination at 2:00 am and finished at 3:00 am. Dead body was decomposed. On external examination, it was found as under:- (1) Head: Skull bone intact. Meninges and Brain matter normal and started shakiness. (2) Neck: On opening the Neck region trachea contained muddy water. (3) Thorax: On opening the cavity heart and lungs normal in size. Lung contained muddy water. Haemorhagic spot present on both lungs. (4) Abdomen; On opening the cavity stomatch empty, liver, spleen, and kidneys normal in size and shape. ' Time between Death and Postmortem: 1-3 days Medical Officer sent Viscerass for chemical examination.
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' Medical Officer received report of Chemical Examiner. According to the opinion of the Doctor, death of deceased had occurred by Cardio Respiratory failure due to asphaxia.. Unnatural death of deceased has not been disputed, efficiency and integrity of the Medical officer have also not been questioned. Defence Counsel has argued that death was accidental but such contention has not been substantiated by cogent A evidence, therefore, we hold that deceased died his unnatural death as described by the Medical Officer. 18. In order to substantiate the charge, prosecution examined following witnesses in trial Court:-- ' Complainant Sadaqat Ali Shahzad, he has stated that on 13-9-2006 his son Owais Ali aged about 12-1/2 years left the house, at 05.00 p.m. For playing game, did not return back till night. On 14-9- 2006 at 02:00 p.m. Qasim alias Umair, the son of female servant of the complainant informed him that on 13-9-2006 at 06:30 p.m. His son Owais Ali had asked to accompany him for purchase of a kite but he had refused. On 14-9-2006 P.W. Khan Muhammad met the complainant and informed that on 13-9.2006 at 05:30 p.m he had seen his son in Black Queen Buss at 17-J bus stop. Complainant reported the matter to the Landhi police regarding missing of his son. On 15-9-2006 at 01:15 p.m. He received a call on mobile Phone No.03002011172 from mobile Phone No.03212921453 complainant was informed that his son has been kidnapped for ransom, he should make arrangement for .Rs.5 Crores for his release. Complainant showed his inability to make arrangement of such huge amount. On 19-9-2006 complainant moved an application to CPLC, they handed over tape recorder along with cassette to the complainant. Complainant recorded conversation made by kidnappers at different occasions with him. On 22-9-2006 kidnappers demanded Rs.4 crore as ransom. On 18-10-2006 complainant prepared to pay Rs.500,000 to the kidnapers as ransom for release of his son and informed the same to the CPLC and AVCC. Ransom was to be paid according to the demand of the kidnappers at Korangi No.2. Complainant reached at pointed place and kept bag in a street but kidnappers disappeared and informed him on the phone that so many persons were present around the pointed place. Thereafter, complainant received another call from the kidnappers that they had not taken the ransom from the pointed place left by the complainant but son of the complainant was not released. Finally, complainant prepared to give Rs.200,000 as ransom to the kidnappers at the pointed place. On 22-10-2006 complainant again reached there and left the amount in the street. Amount was taken by the kidnappers but his son was not returned back. On 4-11-2006 complainant lodged FIR at police station Landhi. Investigation officer prepared mashirnama of bus stop 17-J from where boy disappeared. Complainant had also pointed out the place where he had put ransom such mashirnama was also prepared in presence of complainant and co-mashir Babar. On 9-11-2006, complainant received a call that his son has been murdered and his dead body has been thrown in a Nala. Complainant recognized the voice, it was the voice of appellant Farhan. Such conversation was recorded by him and culprits switched off mobile, he gave such information to police. On 28-11-2006 investigation officer called him at Korangi. Complainant along with one Zulfiqar Ali reached at pointed place and proceeded to the house of the appellant Farhan. Police knocked the door of House No.712, one person came out and disclosed his name as Farhan. Appellant Farhan during interrogation admitted before I.O. That he along with co-accused Qasim alias Umair, Raheel and Akbar kidnapped the complainant's son, committed his murder and had thrown his dead body in Nala. Police arrested Farhan in presence of mashirs, prepared such mashirnama. Appellant Farhan took the police to the house of appellant Qasim alias Umair, he was also arrested, who admitted his guilt. Mashirnama of arrest was prepared in presence of mashirs. Appellant Qasim and Farhan took the police to house No.146 Korangi-1, Karachi where son of complainant was confined by the appellants: Police prepared such mashirnama in presence of mashirs, he acted as mashir, co-mashir was Zulfiqar. Complainant had further deposed that appellants took the police to Nala, where they had thrown the dead body of his son, situated near
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Mehrunnisa Hospital. Police prepared mashirnama of the place of pointation of dead body at Ganda Nala in presence of mashirs. I.O. Collected information from Ibrahim Hyderi police station about the recovery of dead body. I.O. Was informed by. Ibrahim Hyderi police that dead body of unknown boy from Ganda Nala has been recovered on 14-9-2006, it was in decomposed position. After postmortem examination, through Edhi dead body was buried in the graveyard on 15-9-2006. Complainant contacted the Edhi authorities and requested them to hand over the dead body of his son. After seeking permission from the concerned Nazim, by taking from the grave, dead body was brought out and it was identified by the complainant to be of his son. Such mashirnama was prepared in presence of mashirs. Complainant took dead body to his native village, by air for burial purpose and buried on 29-11-2006. He returned back to Karachi on 2-12-2006. The persons of the neighbouring area came to the house of complainant for condolence and Fatiha. He had stated that one Ghaniul Haq told him that on 13-9-2006 he had seen his son in the bus along with appellarit Qasim alias Umair and two other persons to whom, P.W. Ghani-ul-Haq could not identify. Complainant was further informed that his son, appellant Qasim and two other persons got down from the bus at Korangi-1 bus stop. Such information was also conveyed to the I.O. On 25-12-2006 complainant was passing from Quaid Abad, he saw accused Qasim, sitting at hotel. He telephoned to investigation officer. Police came and accused Qasim alias Umair was arrested in presence of mashirs. Complainant produced cassette recorded by him during unfortunate episode so also photographs of deceased. In the cross-examination, complainant has denied the suggestion that he has involved the appellants falsely in this case. Complainant has denied suggestion that all mashirsnamas were prepared at police station. ' P.W.2 Muhammad Ismail, ASI Police Station Risala has stated that on 14-9-2006 he received telephonic message from '15' that one dead body was lying in Ganda Nala near Mehrunnisa Hospital. He reached at the pointed place along with H.C. Mahi. Khan and P.C. Muhammad Yaqoob. Dead body was found in the Ganda Nala, ASI made efforts but could not bring out the dead body from Nala. He arranged private crane and dead body in the naked condition was taken out from the Nala. It was dead body of a boy aged about 13 to 15 years. ASI prepared inquest report in presence of mashirs H.C. Mahi Khan and P.C. Muhammad Yaqoob. Dead body was brought to the Jinnah Hospital , for postmortem examination where postmortem examination was conducted by. Dr. Abdul Razzak. ASI could not trace out the relatives of the deceased. Photographs were taken and dead body was handed over to Edhi authorities for burial purpose.…
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