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Official Citation: 2024 MLD 1612
Court / Jurisdiction: Balochistan High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Dawood Shehzad and others vs The State and others
Ruling Summary: This decision was rendered by the Balochistan High Court on 2023-12-31, officially reported as 2024 MLD 1612. In this matter between Dawood Shehzad and others and The State and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 MLD 1612
Court Name: Balochistan High Court Judge(s): Muhammad Kamran Khan Mulakhail, Shaukat Ali Rakhshani Title: Dawood Shehzad and others vs The State and others Case No.:Criminal Appeals Nos. 329, 334, 336, 342 and Murder Reference No. 09 of
JUDGMENT
Reported As: 2024 MLD 1612 Result: Sentence reduced Judgment
JUDGMENT SHAUKAT ALI RAKHSHANI, J. The captioned appeals have been brought against the judgment dated 30th June, 2022 ("impugned judgment") rendered by learned Judge, Anti-Terrorism Court-I Quetta ("Trial Court"), whereby the appellants were convicted and sentenced in the following terms: "1) Under section 302(b), P.P.C. and section 365-A, 34, P.P.C., the under trial Iftikhar Ahmed son of Muhammad Khan, caste Hazara, to Ali Town, Hazara Town, Quetta, Dawood Shehzad son of Sajjad, caste Christian, resident of Killi Batezai, Tehsil Saranan, District Pishin and Muhammad Mehdi son of Muhammad Zaman, to Hazara town, Quetta are twice sentenced to death as Tazir and directed to be hanged by the neck till they are dead (section 368, Cr.P.C) besides the forfeiture of their properties for their abducting the minor Ali Sher Hazara, strangling him to death at the report of the matter to the police and burning the dead body under the flood water course bridge at the Quetta Chaman road in Saranan. Under sections, 201, 34, P.P.C., all the three of them are sentenced to 7 years and the payment of fine of Rs. 30,000/- each or 5 months S.I in default of the payment of fine. 2) Under section 302(b), P.P.C. and sections 365-A, 34, P.P.C., the under trial Muhammad Muhammad Baqir son of Muhammad Bashir, caste Hazara, to Madrassa road, Hazara town, Quetta (grandson of the complainant) is twice sentenced to life in jail as Tazir for abducting his minor nephew namely Ali Sher son of Eid Muhammad Hazara and instigating the brutal murder of the latter after the report of the matter by the complainant to the police following the lawful call for the payment of huge ransom amount of Rs. 30,000,000/-
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3) Under section 302(b), P.P.C., the under trial Roohullah son of Hussain Dad, caste Hazara, to Hazara Town, Quetta is sentenced to seven years rigorous imprisonment for giving the SIM No.0348-2346291 to the under trial Iftikhar Ahmed, which was used for a call for the payment of ransom amount in lieu of the release of the minor Ali Sher Hazara. Needless to observe that the principle of fazad-fil-arz provided by the sole proviso to section 302, P.P.C. is vague in respect of the convict Roohtullah son of Hussain Dad. 215. The benefit of section 382-B of the Code of Criminal Procedure, 1898 i.e the period of detention during the course of the ongoing formal trial is extended to the convicts namely (1) Iftikhar Ahmed son of Muhammad Khan, (2) Dawood Shehzad son of Sajjad, (3) Muhammad Mehdi son of Muhammad Zaman, (4) Muhammad Muhammad Baqir son of Muhammad Bashir and (5) Roohullah son of Hussain Dad as a matter of right under the law. The copies of the judgment under consideration were given to the condemned convicts (1) Iftikhar Ahmed (2) Dawood Shehzad (3) Muhammad Mehdi (4) Muhammad Muhammad Baqir and (5) Roohullah in the Court free of cost in lieu of a receipt in black and white in connection thereof as legally required by the mandatory provisions of section 25(2) of the Anti-Terrorism Act, 1997 read with section 371(1) of the Code of Criminal Procedure, 1898. 216. In accord with the provisions of sub-section (3) of section 371, Cr.P.C. the convicts namely (1) Iftikhar Ahmed son of Muhammad Khan, (2) Dawood Shehzad son of Sajjad, (3) Muhammad Mehdi son of Muhammad Zaman, (4) Muhammad Muhammad Baqir son of Muhammad Bashir and (5) Roohullah son of Hussain Dad are directed to prefer appeal in the Hon'ble High Court of Balochistan, Quetta within fifteen days of the passing of the judgment by this Court as provided by subsection (3) of section 25 of the Anti-Terrorism Act, 1997. 217. The warrant of commitment under sentence of death (section 374, Cr.P.C) and sentence of imprisonment for life and 7 years and the payment of fine (section 245, Cr.P.C) is directed to be issued against the convicts Iftikhar Ahmed son of Muhammad Khan, caste Hazara, resident of Ali Town, Hazara town, Quetta, Dawood Shehzad son of Sajjad, caste Christian, resident of Killi Batezai, Tehsil Saranan, District Pishin and Muhammad Mehdi son of Muhammad Zaman, to Hazara town, Quetta and the proceedings submitted to the Hon'ble High Court of Balochistan, Quetta for confirmation or otherwise of the death penalty awarded to the convicts Iftikhar Ahmed, Dawood Shehzad and Muhammad Mehdi. 218. Hence, the penalty of death awarded to the condemned convicts namely Iftikhar Ahmed son of Muhammad Khan, caste Hazara, resident of Ali Town, Hazara town, Quetta, Dawood Shehzad son of Sajjad, caste Christian, t/o Killi Batezai, Tehsil Saranan, District Pishin and Muhammad Mehdi son of Muhammad Zaman, resident of Hazara town, Quetta for brutally strangling the minor Ali Sher Hazara to death and putting the dead body on fire shall not be executed unless confirmed by the Hon'ble High Court of Balochistan, Quetta as necessarily and legally required by the provisions of section 374 of the Code of Criminal Procedure, 1898 read with the provisions of section 32 (1) of the Anti-Terrorism Act, 1997. 219. As the foregoing sentences of death, life imprisonment and the rigorous imprisonment for seven years awarded to the under trial Iftikhar Ahmed son of Muhammad Khan, caste Hazara, t/o Ali Town, Hazara town, Quetta, Dawood Shehzad son of Sajjad, caste Christian, t/o Killi Batezai, Tehsil Saranan, District Pishin and Muhammad Mehdi son of Muhammad Zaman, to Hazara town, Quetta in the criminal case FIR No.37/2021 under consideration arise out of the same transaction for the abduction of the late Ali Sher son of Eid Muhammad Hazara for ransom in the first place and the lawful murder at the report of the matter to the police afterwards, the separate sentences of imprisonment awarded in the criminal case under consideration would run concurrently subject to, the variation of the same, if any, by the Hon'ble first and the Hon'ble second Appellate Courts."
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2. As the captioned appeals stems from an FIR bearing FIR No.37/2021 (Ex.P/14-A) registered with Police Station, Brewery, Quetta, therefore, the instant appeals are being decided through this consolidated judgment. 3. Unfurled facts of the case in hand are that Eid Muhammad, complainant (PW-1) got lodged the FIR ibid on 16.02.2021 at 9:30 pm with PS Brewery, Quetta, averring therein that he runs a Confectionery Shop at Ali Town, Quetta, where his son Ali Sher age 10-11 is usually present in the said shop with him and that on 15.02.2021 at about 6:00 pm, he went home to offer prayer and left his son at the shop, but when he returned back, he found his son missing, who was searched at his own, however, today at 3:45 pm he received a call on his cell phone bearing Subscriber Identity Module ("SIM") No. 0347-0380209 from an unknown person using Cell No. 0348-2346291, who demanded ransom of Rs.30,000,000/- (Thirty million) in lieu of release of his son Ali Sher. 4. Investigation of the instant case was entrusted to Shabbar Abbas SIO-IP (PW-14), who at the very outset recorded statement of son of complainant Muhammad Jawad alias Muhammad Raza (PW- 3), made site plan (Ex.P/14-B) and on the basis of Call Data Record ("CDR") of cell phone, having International Mobile Equipment Identity ("IMEI") No.35668008735852 used by the culprit, registered in the name of one Syed Ramzan Ali (PW-5), who was interrogated. He (PW-5) stated that he gave SIM bearing No.0348-2346291 to his elder brother namely Habibullah, who had further given it to his friend appellant Rohullah. Through CDR, it was known that in the said cellular phone having IMEI No.35668008735852 another SIM bearing No.0313-8021677 was also used, which was found to be registered in the name of Ameer Hamza (PW-4), who was also interrogated. He (PW-4) revealed that he had given his said SIM to appellant Iftikhar Hazara. According to Investigating Officer, ("IO") (PW-14) said Iftikhar was arrested on 17.02.2021 and during his arrest from his personal search, a cellular phone Apple i6, having IMEI No.35668008735852 with SIM No. 0313-8021677 was recovered. On 17.02.2021, during integration appellant Iftikhar made disclosure, admitting the crime of abduction for ransom and murder of deceased Ali Sher after hatching a conspiracy with appellants Muhammad Baqir, Rohaullah, Muhammad Mehdi and Dawood Shehzad, following in arrest of appellant Muhammad Baqir, who had provided a car allegedly used in the crime. Disclosure of accused-appellant Iftikhar also led the police to arrest accused Mehdi from his house situated at Hazara Town, Quetta as well as arrest of appellant Dawood Shehzad from Saranan Bazaar. Appellant Dawood Shehzad, after interrogation made a disclosure and led the police contingent to the guest room of his house situated at Kili Batezai Tehsil Saranan, District Pishin and got recovered joggers worn by deceased Ali Sher, which were identified by Muhammad Jawad (PW-3). Beside above, appellant Dawood Shehzad also got recovered used binding tape and two Caps of appellants Mehdi and Iftikhar as well as two empty rappers of 'Valium' tablets (L- Diazepem) statedly given to the deceased by them. According to IO (PW-14), he observed some burn marks on the sleeves of the clothes worn by the appellant Dawood Shehzad, which were secured through recovery memo. and also led them to prepare site plan (Ex.P-14-C). The Police contingent was further led by appellant Dawood Shehzad to a bridge near New Mohajir Camp at Quetta Chaman Road and thereunder got recovered a burnt plastic bottle, ashes of burn clothes, two smoked cigarettes, a piece of used Chewing Gum from the crime scene, where the deceased was done to death and ablazed, whereof site plan (Ex.P-14-D) was prepared. In the meanwhile, IO (PW-14) came to know from Levies Saranan that a burnt body of the child was recovered by Abdul Nafay Naib Risaldar Levies (PW-6). The autopsy of the deceased was conducted by Dr. Aisha Faiz Police Surgeon (PW-7), who issued autopsy report dated 07.07.2021 (Ex.P/7-A) affirming death of the deceased due to strangulation. On 04.03.2021, appellant Roohullah was arrested. On 10.03.2021, IO (PW-14) got recorded statements of Ameer Hamza (PW-4) and Syed Ramzan Ali (PW-5) under section 164 of the Criminal Procedure Code, 1898 ("Cr.P.C'') by Azhar-ud-Din Baloch, Judicial Magistrate Jiwani, Gawadar ("JM") (PW-11) as witnesses. On 20.03.2021, the specimens of blood,
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lever kidney and stomach with contents coupled with articles recovered from the crime scenes and blood specimens of the appellants were obtained and sent to Punjab Forensic Science Agency ("PFSA") for Deoxyribonucleic Acid Analysis ("DNA"), whereof reports dated 31.05.2022 (Ex.P/14-H) and (Ex.P/14-J) were received respectively. 5. After conclusion of the investigation, the appellants were sent up to the Trial Court to face the deeds of their crimes, where on commencement of the trial, the appellants entered the plea of denial, thus, the prosecution in order to bring home the charge produced as many as fourteen (14) witnesses, and after close of the prosecution side, the appellants refuted the allegations so brought as envisaged under section 342 of Cr.P.C, whereafter appellant Ifitkhar Ahmed took oath in accord with the provision of section 340 (2) of Cr.P.C, whereof categorically denied the allegations and professed innocence, however, did not produced any evidence in his defence, hence on conclusion of the trial, the appellants were convicted and sentenced in the terms mentioned in para supra. 6. Mr. Mukesh Nath Kohli, Advocate counsel for appellant Dawood Shehzad contended that there is no eye-witness of the occurrence and the case of the prosecution is merely based on circumstantial evidence, but the prosecution has failed to establish the chain of the events leading to the guilt of appellant Dawood Shehzad. He emphasized that appellant Dawood Shehzad neither made any disclosure nor any incriminating articles were recovered on his pointation and that there are material contradictions with regard to the address of house of appellant Dawood Shehzad, wherefrom the aforesaid articles were recovered. It was also argued that the place, where the dead body was ablazed was already known, thus, such recovery on the pointation of the appellant in consequence of the disclosure is unworthy of credence. He added further that evidence collected has been foisted after the arrest of the appellant, thus it would be unsafe to rely upon such piece of evidence, which otherwise has no corroboration, more particularly, when there is delay in sending the specimens to PFSA for DNA analysis, which diminishes its evidentiary value, henceforth prayed for acquittal of the appellant in consequence of acceptance of the appeal and setting at naught the impugned judgment and answering the murder reference in negative. 7. Mr. T.H Khan, Advocate representing appellants Muhammad Mehdi and Roohullah and Mr. Muhammad Khalik Kakar, Advocate learned counsel for appellant Iftikhar adopted the arguments advanced by Mr. Mukesh Nath Kohli, Advocate counsel for appellant Dawood Shehzad, however, added that arrest of appellant Iftikhar, Muhammad Mehdi and Roohullah on the basis of CDR has no evidentiary value as the prosecution has miserably failed to prove the recovery of the mobile sets, CDR; and that the statements of Ameer Hamza (PW-4) and Syed Ramzan Ali (PW-5) recorded under section 164 of Cr.P.C. are inadmissible, which are result of padding and manipulation. Mr. Khalid Khan Kakar, Advocate urged that appellant Iftikhar had neither made any disclosure nor inconsequence thereof got recovered any incriminating article, thus on the basis of inadmissible disclosure his conviction is unsustainable. Reliance was placed upon the judgments reported as 2016 SCMR 274, 2016 SCMR 1144, 2017 SCMR 2026 and 2023 PCr.LJ 589. 8. Mr. Faiz Ahmed, learned counsel for appellant Muhammad Baqir urged that there is even not an iota of evidence against appellant Muhammad Baqir, but the Trial Court has convicted and sentenced the appellant contrary to the evidence available on record on the basis of surmises and conjectures, which is not sustainable and the same merits to be set at naught, while accepting his appeal. 9. Mr. Younas Mengal, learned APG assisted by Mr. Abbas Ali Qazalbash, representing the complainant vigorously opposed the appeals and argued that although there is no eye-witness of the occurrence and the case of the prosecution rests upon circumstantial evidence, but prosecution has successfully proved the case on the basis of overwhelming evidence. It was also argued that arrest of the appellant Iftikhar on the basis of CDR and arrest of the other appellants on his disclosure led the prosecution to the crime scenes so pointed out by appellant Dawood
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Shehzad, wherefrom incriminating articles were recovered, which establishes the indictment through unbroken chain of events, creating no doubt in mind that the appellants abducted Ali Sher for ransom and committed his murder and, as Such, prayed for dismissal of the appeals with the prayer to upheld the judgment impugned herein. Reliance was placed upon the judgment reported as 2009 SCMR 135. 10. Heard. Record sussed out with the able assistance of learned counsel for the adversial parties. Admittedly, there is no eyewitness of the occurrence and entire edifice of prosecution's case is based on circumstantial evidence. We are conscious that where the case depends upon circumstantial evidence, extraordinary care and caution is required, therefore, while re-appraisal of the evidence on record, we have taken utmost possible precaution so to avoid and rule out any wrong conclusion because there is always apprehension of fabrication of circumstantial evidence. The apex Court has time and again held that the circumstantial evidence is always not of a standard and quality, rather it is dangerous to explicitly place reliance upon such evidence and that the circumstantial evidence must be of such a nature, where different pieces of evidence must make a chain of events, where one end of it touches the dead body and the other, the neck of accused and if such link is found missing, the whole chain breaks down and no conviction can be recorded on such circumstantial evidence. In this regard we are fortified with the view expounded in the case of "Imran Alias Dullay v. The State" (2015 SCMR 155), "Azeem Khan v. Mujahid Khan" (2016 SCMR 274) and "Hashim Qasim v. The State" (2017 SCMR 986). For ease of reference, para-5 of Imran alias Dullay's case is facsimile herein below; "5. By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge. As was held in the case of Fazal Elahi (ibid) and in view of the changed social norms and standard of ethics of the society, to which the witnesses belong and also the questionable credibility of the investigating agency and its incompetency to professionally investigate such blind crimes by now, the Courts have to exercise more and more cautions before accepting and resting its opinion of being guilty on a circumstantial evidence collected apparently in 6 dishonest, dubious and rough manner." [Emphasis added] 11. In the instant case, the case of the prosecution is based upon following pieces of evidence; i. CDR. ii. Statements of Ameer Hamza (PW-4) Syed Raman (PW-5), who had given their SIM(s) to appellant Iftikhar and Roohullah and got recorded their statements under section 164 of Cr.P.C. as witnesses. iii. Arrest of appellant Iftikhar and recovery of cell phone from him, having IMEI No.35668008735852 with SIM No. 03 13- 8021677, which was used in the crime for demand of ransom and recovery of a Mehran Car bearing No.AYA-386 used in the crime. iv. Arrest of appellant Dawood Shehzad on 17.02.2021 pursuant to the disclosure of appellant Iftikhar. v. Disclosure and pointation of appellant Dawood Shehzad of his house, where the deceased abductee was confined for ransom and administered intoxicating drug 'Valium' tablets (L- Diazepem). vi. Recovery of two empty rappers of 'Valium' tablets (L-Diazepem), binding tape, two caps of appellants Mehdi and Iftikhar as well as jogger of deceased Ali Sher indentified by Muhammad Jawad (PW-3).
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vii. Pointation of the bridge under which the deceased was done to death by strangulation with a wire of a mobile charger, wherefrom a burned plastic bottle, ashes of burnt clothes, two smoked cigarettes, a piece of chewed gum were recovered. viii. Recovery of a cable of a mobile charger Art.P/12 tied around the neck of the deceased, whereby the deceased was strangulated, which was handed over by Dr. Aisha Faiz (PW-7) and photographs of the deceased Art.P/4 to 8 and memo. of injuries Art.P/9 and Art.P/10 secured through recovery memo. (Ex.P/9-A) and (Ex.P/9-B) ix. Autopsy report of deceased Ali Sher. x. Forensic-DNA reports." 12. Complainant Eid Muhammad (PW-1) testified that after abduction of his son Ali Sher he had received ransom call for Rs.30,000,000/- (three crores) on his Cell phone No. 0347-0380209 from Cell No.0348-2346291 made by an unknown culprit. CDR and verisys produced as Art.P/17 and Art.P/18 were secured by Shakeel Ahmed (PW-10) through recovery memo. (Ex.P/10-A), which transpires that ransom call was made from Cell No. 0348-2346291 on the cell phone of complainant (PW-1) bearing Cell No.0347-0380209, which was found to be registered in the name of Syed Ramzan Ali (PW-5), whereas some calls for ransom were made in lieu of release of his son from Cell No.0313-8021677 registered in the name of Ameer Hamza (PW-4), whereof CDR and Verisys Art.P/21 to Art.P/25 of Cell No.0313-8021677 were secured through recovery memo. (Ex.P/12- A) by Naseebullah ASI (PW-12). Syed Ramzan Ali (PW-5) was interrogated, who stated to have had given the said cell phone number to his elder brother Habibullah, who had further given it to his friend appellant Roohullah, which was used in cell phone No. No.0313-8021677, having IMEI No.35668008735852 so evident from CDR ibid. Ameer Hamza (PW-4) was also interrogated, who revealed that he had given his said SIM to appellant Iftikhar Hazara. The Statements of both the witnesses Ameer Hamza (PW-4) and Syed Ramzan Ali (PW-5) were recorded under section 164 of Cr.P.C. by Azhar-ud-Din Baloch, JM (PW-11), who testified and affirmed recording of their statements, substantially, proving the factum mentioned herein before in view of Article 164 of Qanun-e-Shahadat Order, 1984 ("Order of 1984"), which categorically stipulates that the court may, if deems appropriate, allow to produce any evidence or witnesses recorded through modern devices or techniques mentioned therein, which leads and connects appellants Iftikhar and Roohullah for demanding ransom in lieu of release of deceased Ali Sher, henceforth, the objection of the defence with regard to the admissibility of the CDR stands ruled out. 13. On 17.02.2021, appellant Iftikhar was arrested and from his personal search, Apple mobile phone i6, having IMEI No. 35668008735852, wherein SIM No.0313-8021677 was installed, which was secured through recovery memo. (Ex.P/10-B) in the presence of Shakeel Ahmed (PW-10) and Muhammad Iqbal SI, which was used for the demand of ransom, whereof CDR was taken into possession. On 17.02.2021, appellant Iftikhar made disclosure, whereof disclosure memo. (Ex.P/13-A) was prepared in the presence of Ehsanullah Marwat SI-SHO (PW-13), wherein he admitted to have had hatched the conspiracy of abduction of deceased Ali Sher for ransom with appellants Muhammad Baqir, Mehdi and Roohullah as well as appellant Dawood Shehzad, who agreed to provide a place for keeping the abductee, and that on 15.02.2021 he along with appellants Muhammad Baqir and Mehdi went to the shop of complainant (PW-1), where appellant Muhammad Baqir called Ali Sher and made him sit in the car, whereafter brought him to the house of appellant Dawood Shehzad and inserted his SIM in his mobile phone, whereafter he further disclosed that appellant Dawood Shehzad called the complainant, but due to language barrier appellant Mehdi talked to the complainant and demanded Rs.30,000,000/- (three crores) in lieu of release of his son and that when the complainant got registered the report ibid, they were appraised by appellant Muhammad Baqir, who told them to murder the abductee, thus they administered sleeping pills to the abductee, who slept in deep, whereafter the abductee was brought in a car at Quetta Chaman
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Road, where appellant Mehdi gave a cable of a mobile charger to appellant Dawood Shehzad, who strangulated the abductee with the said cable in the car and when it was confirmed that Ali Sher had died, they laid the dead body under the bridge on Quetta Chaman Road, where he poured petrol on the dead body and appellant Dawood Shehzad set fire, whereafter appellant Dawood Shehzad was dropped at Ajwa Hotel, whereas rest of the appellants came home, but subsequently he was arrested. In consequence of said disclosure, he got recovered a Mehran Alto Car bearing No.AYA-386 used in the crime through recovery memo. (Ex.P/8-A) prepared in the presence of khurram Saleem SI (PW-8) and Naseebullah ASI (PW-12). Furthermore, in consequence of disclosure made by the appellant Iftikhar, appellant Dawood Shehzad was arrested on the same date i.e, 17.02.2021. During investigation, appellant Dawood Shehzad made disclosure of the crime, whereof memo. of disclosure (Ex.P/13-B) was prepared in the presence of Ehsanullah Marwat SI-SHO (PW-13) and marginal witness Muhammad Iqbal SI, wherein he reiterated the facts of guilt almost in similar words as narrated by appellant Iftikhar particularly, confinement of the deceased abductee Ali Sher in the guest, room of his house, making calls for ransom, strangulating the deceased with the cable of the mobile charger and ablazing the dead body of the deceased under the bridge on Quetta Chaman Road. He also volunteered to make pointation of the place of occurrence, where the deceased was confined, thus, he led the police contingent to the guest room of his house situated at Kili Batezai Saranan, wherefrom in the presence of Ehsanullah SI-SHO (PW-13) and Muhammad Iqbal SI got recovered a black and white joggers shoe of a child having trade mark…
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