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Petitioner: Karachi MUHAMMAD RAMZAN And 3 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Gulzar Ahmed, Imam Bux Baloch Title: Karachi MUHAMMAD RAMZAN And 3 Others vs THE STATE Case No.: Spl. Criminal. A.T.A. No.21 of 2009,. Date of Judgment:2011-01-28 Reported As: 2011 YLR 2379 Result: Appeal allowed
JUDGMENT
JUDGMENT IMAM BUX BALOCH, J. Appellants have assailed judgment dated 30-5-2009 passed by learned Anti-Terrorism Court No.III, Karachi, whereby the appellants were convicted under sections 365/A, 34, P.P.C. Read with section 7(e) of Anti-Terrorism Act, 1997 to serve Life Imprisonment and forfeiture of their property to the extent of Rs.50,000 each, which shall be forfeited to the Government and in case of default of payment, each of the appellant/accused shall suffer R.I for six months more. 2. The succinct facts of the prosecution case are that complainant Muhammad Naseem son of Muhammad Shafi lodged F.I.R. No.174 of 2006 under section 365-A/34, P.P.C. With Police Station Sir Syed on 27-8-2006 stating therein that he resides in H.No.L-56, Street No.2, Sector No.8, North Karachi. On 24-8-2006 his brother Muhammad Naeem, aged about 36 years left house on motorcycle but he did not return. On 25-8-2006 at about 11-00 or 11-15 a.m., he received a phone call on his Cell No.0333- 2105293 from cell phone of his brother No.0300-2630020 and an unknown person was talking who asked the complainant to pay 35 lac Dollars for the release of his brother else he would be killed and disconnected the call. Phone calls from different cell phones were received on different dates and occasions for demand of amount of ransom by accused. The kidnappers had made calls to his other relatives at Karachi and Punjab for payment of ransom. Thereafter, he lodged the F.I.R. And after lodging the same it was sent to AVCC for investigation which was entrusted to S.-I. Ishrat Rana. 3. During investigation on 9-9-2006 abductee Muhammad Naeem escaped and informed his
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brother Muhammad Naseem through telephone from a PCO about his release, who informed the Investigating Officer who along with police party went to that PCO where abductee Muhammad Naeem narrated the whole incident. The abductee showed the place where he was captivated from where Investigating Officer secured some articles including one marriage photo Album, a video cassette of marriage and a passport in the name of Muhammad Ramzan son of Muhammad Khan issued from Faisalabad. The abductee identified accused Muhammad Ramzan and one other person from the photo Album. During investigation complainant informed Investigating Officer that on 6-9-2006 he sent a Pay order for an amount of Rs.2 lac through Bank Al-Falah Faisalabad which was paid on 7-9-2006 for the release of his brother abductee Muhammad Naeem. As the accused Muhammad Ramzan was original resident- of Punjab, Investigating Officer sought permission to proceed to Punjab where he obtained the record of Money Changer pertaining to have received the ransom amount. On 12-12-2006 on the pointation of abductee culprit Muhammad Ramzan son of Muhammad Khan was arrested near National Bank of Pakistan Branch Ghagh Chowk near Chak No.210 District Jhang Punjab. On 15-12-2006 after reaching at Karachi co-accused Muhammad Akbar son of Charagh Din was arrested on the pointation of arrested accused Muhammad Ramzan and on 18-12-2006 co-accused Abdul Ghafoor son of Ali Muhammad was also arrested on the pointation of arrested accused Muhammad Ramzan. On 21- 12-2006 the identification Parade was held before Judicial Magistrate Court No. VI, Karachi Central of two accused Muhammad Akbar and Abdul Ghafoor who were identified by victim Muhammad Naeem. On 21-12-2006 an unlicensed.30 bore pistol loaded with magazine containing 4 live bullets in magazine, old NIC of victim, papers of motorcycle bearing registration No.KBC9565 Yamaha 100, Sale letter of Auto City company in the name of victim Muhammad Naeem were recovered from accused Abdul Ghafoor and a separate F.I.R. No.207 of 2006 under section 13-E Arms Ordinance was registered against accused Abdul Ghafoor at Police Station Al-Falah and subsequently on 6- 2-2007 accused Muhammad Asif son of Muhammad Yaqoob was arrested and his identification parade was conducted on 9-2-2007. 4. Charge was framed to which appellants pleaded not guilty and claimed to be tried. 5. During trial prosecution has examined Muhammad Naseem (complainant) as P.W-1 at Exh.12. He has produced F.I.R. Of Crime Nos.174 of 2006 at Exh.12/A, mashirnama of place of incident at Ex.12/B, Receipt of Al-Falah Bank at;Ex.12/C, mashirnama of place of captivity of abductee at Exh.12/D, P.W.2 Mukhtar Hussain at Exh.13, P.W.3 Azizullah Civil Judge and Judicial Magistrate at Exh.14, who produced Letter written by SIP Ishrat Rana of AVCC Karachi at Exh.14/A, memo of identification parade of appellant Muhammad Akbar at Exh.14/B, CNICs at Exh.14/C to 14/E, memo. Of Identification Parade of appellant Abdul Ghafoor at Exh.14/F, application dated 7-2-2007 for holding identification of accused Muhammad Asif at Exh.14/G, memo of identification of accused Muhammad Asif at Exh.14-H, CNICs of witnesses at Exh.14/I to Exh.14/J, P.W.4 Malik Muhammad Naeem (abductee) at Ex.15, he has produced Entry No.7 as Exh.15/A, memo. Of arrest of accused Muhammad Ramzan at Exh.15/B, two notices under section 160 Cr.P.C. Issued by Investigating Officer to this witness as Exh.15/C and 15/D, P.W.5 Muhammad Ilyas at Exh.16, he has produced mashirnama at Exh.16/A, form of application of Wallstreet Money Exchange Company as Exh.16/B and 16/C respectively, Ary speed Remit receipt (COC) at Exh.16/D, P.W.6 Hazoor Muhammad at Exh.17, he has produced mashirnama of arrest of accused Muhammad Akbar at Exh.17/A, P.W.7 HC Muhammad Ameer at Exh.18, he has produced mashirnama of arrest of accused Muhammad Asif at Exh.18/A, P.W.8 Zeeshan at Exh.19 he has produced mashirnama regarding seizure of Certificate receiving the ransom amount at Exh.19/A to 19/D. He also produced photocopy of his CNIC at Exh.19/E. P.W.9 Imran Khan at Exh.20, he has produced memo of arrest and Recovery of Arms and
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Ammunitions and the documents at Exh.20/A, CNIC at Exh.20/B, Vehicle Registration Certificate at Exh.20/C, Receipt of Authority (Pvt.) Limited in the name of Malik Muhammad Naeem at Exh.20/D. P.W.10 HC Syed Abrar Shah at Exh.21, lie has produced mashirnama of arrest of accused Abdul Ghafoor at Exh.21/A. P.W.11 Muhammad Farooq at Exh.22. P.W.12 SIP Ishrat Rana at Exh.23, he has produced order dated 28-8-2006 issued by SSP Investigation/ AVCC, Capital City Police Karachi at Exh.23/A, statement under section 154 Cr.P.C. At Exh.23/B, Application addressed to the Manager, Wallstreet Money Exchanger at Ex.23/C. 6. After completing prosecution evidence A.P.G closed prosecution side vide statement at Ex.24. 7. The statements of accused under section 342 Cr.P.C. Were recorded. Appellant Muhammad Ramzan has stated that lie having friendly terms with alleged abductee Muhammad, Naeem since 2003. However, the appellant showed his interest for purchasing a house on which the alleged abductee offered hk house for sale in the sum of Rs.8 lac. On 6-7-2006 Rs.25,000 were paid to him in advance and on 21-8-2006 Rs.5,95,000 were paid and two stamp papers were purchased by the appellant. On 22-8-2006 according to appellant abductee Muhammad Naeem came and gave him original papers of his house. However, at the time of raid by the police, the police taken away those two original documents. He further stated that on 24-8-2006 he was unable to move as he was operated second time at Hashmani General Hospital, M.A. Jinnah Road, Karachi. He also produced such certificate. He declared himself as innocent. However, all the appellants denied the prosecution allegations but they neither examined any defence witness nor examined themselves on oath as provided under section 340(2), Cr.P.C. 8. Learned trial Court after hearing the arguments of the learned counsel for the parties, passed the judgment dated 30-5-2009, which is impugned through the instant Appeal. 9. We have heard learned counsel for the appellants and learned D.P.-G. And with their assistance we have scanned the entire evidence. Learned counsel for the appellants contended that the prosecution evidence is full of contradictions, exaggerations and improvements. The identification Parade of appellants having no value as according to the prosecution evidence, abductee Malik Muhammad Naeem knew the names of all the appellants, hence there was no need of holding identification parade. The names of dummies have not been mentioned in the memo of identification parade. He further argued that no specific role of each accused was assigned during identification test. It is further contended that the abductee has made exaggerations and improvements during trial which render the evidence of the abductee as doubtful. It is further contended that according to the prosecution evidence abductee was in captivity for 17 days and as his hands and legs were tied with iron chains, but he has not received any injury. It is further contended that according to the evidence of abductee, the room was locked inside and the keys were lying in the room which version did not appeal the prudent mind. He further contended that no ransom amount has ever been demanded or received by the appellants. He has relied upon the following case-laws:- Muhammad Pervez and others v. The State and others (2007 SCMR670). Farman Ahmed v. Muhammad Inayat and others (2007 SCM R 1825). 10. He summed up his submissions by arguing that the prosecution case is pregnant with doubts and it is settled proposition of law that benefit of every doubt is to be extended in favour of the
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appellants. 11. Mr. Khadim Hussain learned D.P.-G. Contended that the appellants have received ransom amount. It is further contended that evidence of abductee is sufficient for maintaining the sentence and conviction of the appellants. Learned D.P.-G. Frankly conceded that in the circumstances of the instant case, the Identification Parade looses its value. He has relied upon the case of Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCM R 1410). It is further contended that prosecution has established its case beyond any shadow of reasonable doubt. The trial Court has rightly convicted and sentenced the appellants. It is further contended that the crime of kidnapping abduction is increasing day by day in our society and the time has come that such culprits be dealt with iron hands. 12. In order establish its case, the prosecution has examined P.W.1 Muhammad Naseem who is complainant of the present case. He deposed that on 25-8-2006 he received a call on his mobile telephone from Cell No.0300-2630020 whereby he was threatened to pay 35 lac Dollars as they had business dealing with his brother Naeem in Dubai. The same demand was also repeated on 26-8-2006 at about 1-45 p.m. The person further informed him that his brother Naeem was in their custody in Baluchistan. On 27-8-2006 he lodged a Report. He further stated that he filed an application with C.P.L.C., the C.P.L.C. Authorities gave him Tape Recorder and two cassettes for getting the voice recorded in those cassettes. On 28-8-2006 or 29-8-2006 he along with Investigating Officer Ishrat Rana went to place of incident which was situated opposite of Police Station Surjani Town where his brother resided. He produced mashirnama of place of residence of his brother. He further stated that culprits also issued threats to his brother who was residing in Punjab and demanded Rs.2 lac as ransom. He further stated that he gave Rs.2 lac to his friend Tanvir who was residing at Faisalabad. The said amount was received by his brother Muhammad Sharif and relative Muhammad Ilyas from his friend Tanveer and his brother handed over the amount to two persons whose names he did not know. On 9-9-2006 he received telephone call from his brother Naeem that he is in Tariq Road but he did not know the place. Thereafter he informed Investigating Officer Rana Ishrat and went to the place where his brother Naeem was standing near a PCO and took him and Investigating Officer Ishrat Rana to the house where his brother was captivated. That house was situated near Allah Wala Chowrangi, they entered in a house where different articles were taken by police. The House consisted of two floors. On the ground floor there were two Charpais (Cots) two Zanjeers and one handkerchief. Thereafter they went to the first storey which was found locked. The lock was broken by Investigating Officer where there were two rooms, police searched both the rooms and found two movie cassettes, one Passport of Ramzan and one Album in which there were different photographs of were of Ramzan. His brother pointed out that he is Ramzan who had abducted him. Such mashirnama was prepared by I.O. And obtained his signature and signature of one Muhammad Shahbaz. In cross- examination the witness stated that he is residing in Rashidabad since last about 10 years and run a Looms workshop. He stated that his F.I.R. Was reduced by head moharrir. He admitted that he has not stated in F.I.R. That informer informed him that the abductee is with them. He also admitted that fact of issuing of threats by accused is not mentioned in the. F.I.R. He also admitted that he has not stated in the F.I.R. Or in his 161, Cr.P.C. Statement that C.P.L.C. Had provided him Tape Recorder and cassettes. He also admitted that he has not mentioned in the F.I.R. Or in his 161, Cr.P.C. Statement that his mother was threatened by the accused persons. He has admitted that the house pointed out by his brother Naeem was situated in thickly-populated area where Kiryana shop and PCO are situated. He admitted that his brother Muhammad Naeem usually remained absent for days from
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his house. He further stated that police had recovered his brother from house and the house was seized by police but Police did not lock the house at the time of seizure. He admitted that police had recorded his statement for three times. 13. P.W.2 SIP Mukhtar Hussain stated that on 27-8-2006 fir was posted as SIP at Police Station Sir Syed of. New Karachi Town. One Muhammad Nascent came at Police Station and informed that his brother Muhammad Naeem has been abducted for the purpose of ransom and culprits demanded 35 Lac Dollars as ransom. He recorded his F.I.R. And after that he handed over F.I.R. To AVCC for further investigation. 14. P.W.3 Azizullali Civil Judge and Judicial Magistrate V1-Karachi Central deposed that on the application of SIP Ishrat Rana identification parade of accused Muhammad Akber and Abdul Ghafoor was conducted in Crime No.174 of 2006. After completing the formalities he directed Investigating Officer Ishrat Rana to arrange for 10 dummies. Abductee Malik Muhammad Naeem had identified accused in identification parade and he has prepared such mashirnama of identification test and he handed over the accused to Investigating Officer Ishrat Rana. On 8-2- 2007 Investigating Officer Ishrat Rana submitted another application for holding identification parade of accused Muhammad Asif through P.W Muhammad Naeem and after arranging 10 dummies identification parade of accused Muhammad Asif was conducted where P.W Muhammad Naeem identified the accused. Such memo of identification parade was prepared with the signatures of Mashirs Amanat Ali and Muhnr 'aleem. In cross-examination he admitted that he knew procedure laid down by honourable High Court for holding identification parade but he did not prepare list of dummies at the time of holding of identification parade of accused Akber, Abdul Ghafoor and Muhammad Asif. He admitted that height, structure, complexion and dresses were different of all the dummies. 15. P.W.4 Malik Muhammad Naeem is abductee and is a star witness of this case. He has stated that on 15-4-2006 lie was returning from Faisalabad by Air Blue Flight accused Zeeshan whose name subsequently came to his knowledge to be Muhammad Ramzan was also travelling in the same flight. Accused Muhammad Ramzan saved his mobile number in his mobile phone whereas lie also saved the number of accused Muhammad Ramzan in his mobile phone. They became friendly with each other in the flight. Accused Muhammad Ramzan during travelling informed him that his uncle is serving in KPT and further informed that his uncle had found a golden chain and offered him to purchase the same, but he refused. He further deposed that they both stepped down at Karachi Airport. Again stated that accused Muhammad Ramzan offered him not.a chain but biscuits of gold. After about 2 months accused Muhaniin Raman called him front telephone number of Faisalabad and asked him to see him but he told him that lie is in Karachi. On 22-8-2006 accused Ramzan called from his mobile and asked him that he wanted to see his uncle but as lie does not know the house of his uncle asked him that he should give company to find out house of his uncle and asked him to come to Mazar-e-Qauid-e-Azam. On 24-8-2006 at about 4-00 p.m. He went to Mazar-e-Quaid-e-Azam on his Motorcycle No.KBC-9565 Yamaha-100 2004 Model of red colour, where accused Muhammad Ramzan met him. He took accused Muhammad Ramzan and they went on motorcycle to Lines Area where accused Ramzan asked him to stop the motorcycle near two storey building. Accused Ramzan knocked the door from where an old nian of fat physique came out he went inside the house with that old man. After a short while accused Muhammad Ramzan came out from the house and asked him to come inside the house where a Charpai was lying. Accused Muhammad Ramzan gave a bag containing Khaki envelope in which certain amount was visible. Accused Ramzan handed over the same to old man who gave a sinall leather bag containing golden biscuits. Thereafter accused Ramzan spoke 1, 2, 3 thereafter three persons came out of room having pistols in their hands. Accused Ramzan threatened him not to shout else
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he would be killed. Accused Ramzan further told him that they are police officials and are investigating his case. In the meantime old man also came thereafter all the five persons grappled with him and overpowered him and tied his neck with handkerchief. Thereafter a lady appeared and handed over a glass of syrup to accused Muhammad Ramzan who forcedly put the same in his mouth and thereafter he lost his senses. After regaining the senses be found that his legs and hands were tied with iron chains and his mouth was covered with tape and a T.V with full sound was on in the room. Accused. Muhammad Ramzan along. With three co-accused came and threatened him not to shout otherwise he would be killed. They told him that they are police men and he should tell them everything they wanted to ask. He further deposed that at that time he had three mobile sets and Rs.65,000 in his pocket whereas Rs.20,000 were in the fold of shalwar in hidden pocket. The accused snatched mobiles as well as cash amount and repeatedly asked about his brother and other family members. Accused Ramzan was having a Register in his hand on which he was noting down the Cell numbers of his brothers and other relatives. On 7-9-2006 accused Ramzan came with his mobile in his hand and speaker was on and told him to talk on mobile. He found the voice of his nephew who asked about his health and informed that whatever the accused have said that has been complied with and thereafter accused Ramzan left room. On 9-9-2006 accused Ramzan and the person who was called "03" left the house and returned at about 2-00 p.m. "01" and "02" whose names were subsequently known as Asif and Nawaz they also left the house while accused Ramzan and "03" whose name was subsequently disclosed as Akber came in room and told him that by the same evening they shall release him as they have received the amount and F.I.R. Has also been disposed of. On the same day at about evening time Muhammad Ramzan and Akber came and asked him that they will give injection to him and car has been arranged who will leave him at the residence of his brother. They injected him and came in adjoining room. Thereafter he pretended himself to be unconscious and was not responding to the calls made by the accused from adjoining room. Accused again came in the room and slapped him as to whether he was unconscious or not. After short while accused Ramzan and Akber went in the adjoining room and they were talking with each other that he is unconscious and shall not regain senses for coming six-seven hours and they planned to kill him and thereafter they left that house. Again after sometime when he found that there was no person in the house he tried to unchain the zanjeer which was in his hands and legs. However he unlocked the small locks by stand of mosquitoes. Thereafter he managed to release himself from that room and came to the adjoining room which was also locked from inside but the keys of the lock were lying in the room and by uniocking those locks he 'came out of the house. Thereafter lie called his younger brother Muhammad Naseem from PCO and asked him that he has been released and standing Lines Area near Kala P.L and asked his brother to come to him. After about 1 and 1/2 hour his younger brother Naseem came along with his cousin Muhammad Shahbaz and one mobile was also brought by them. He was having the keys of the house where he was kept and he along with police went to the house where he was captivated. Police inspected that place and secured Passport, Movie cassette of marriage and Album of marriage. Abductee further deposed that on 13-10-2006 he had appeared before Police Station Sir Syed New Karachi Town where he had lodged his Report. He produced the same at Exh.15/A. He further deposed that accused Muhammad Ramzan was arrested from Jhang Punjab. On 20-12-2006 he received notice from Investigating Officer of AVCC to appear on 21-12-2006 in the Court of VI-Judicial Magistrate, Karachi Central for identification of accused Muhammad Akber and Abdul Ghafoor. On 21-12-2006 he appeared before the concerned Magistrate where identification parade of accused Muhammad Akber and Abdul Ghafoor was held. Again on 8-2-2007 he received a notice from Investigating Officer with direction to appear before the VI-Judicial Magistrate Karachi Central for identification parade. He appeared before the concerned Magistrate where identification parade of accused Muhammad Asif was conducted.
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16. During his cross-examination abductee deposed that he is working in Karachi since last about 20 years. He further deposed that he did not remember as to when and at what time he signed the memo of identification parade. He further deposed that on 9-9-2006 he was at the Police Station AVCC for about one hour when his 161, Cr.P.C. Statement was recorded by Investigating Officer Ishrat Rana. He admitted that he had not given Hulia and descriptions of three accused in his 161, Cr.P.C. Statement but he had only given description of one accused of fate built aged about 60 years. He admitted that he never appeared on 19-12-2006 before any Judicial Magistrate for identification parade. He further admitted that at the time of holding of identification parade about 15-16 dummies were made to stand in row on every time of identification. The dummies were of different heights, complexion, built. He further admitted that he knows one Muhammad Saleem who is his relative and is son of his maternal uncle. However, he did not remember if Muhammad Saleem was present on 21-12-2006. He also admitted that he is an Estate Agent. He further admitted that the house where he was captivated is surrounded by other houses as well. A General Store exists adjoining to the house. The PCO is situated at a distance of about 30-40 feet from the house. He further admitted that in his 161, Cr.P.C. Statement there is no mention about the sealing of the articles recovered from the place of his captivity. He further admitted that P.W Muhammad Shahbaz is son of his uncle. He further admitted that after his release he waited for his brother as well as for police for about 1-30 to 2-00 hours at PCO. He further admitted that Zanjeers are easily available in the market. He further admitted that keys of two locks which were recovered from the place of captivity are not available in Court. He further admitted that about 50-60 persons had gathered near the house at the time of arrival of police and further admitted that no person of locality was made as mashir though the police had tried to cite them as mashir. He further deposed that police came to the house and at that time the gate of house was locked from outside. He further deposed that he had locked the outer door of the house and when police came the lock was opened by him as the keys were with him. He further admitted that he had gone to Punjab with police party for…
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