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Petitioner: NOOR MUHAMMAD and another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Shahid Anwar Bajwa Title: NOOR MUHAMMAD and another vs THE STATE Case No.: Special Criminal A.T.As. Nos. 28, 29 and Confirmation Case No,3 of 2009 Date of Judgment:2010-07-30 Reported As: 2011 YLR 1250 Result: Order accordingly
JUDGMENT
JUDGMENT SHAHID ANWAR BAJWA, J. Prosecution case is that baby Sana age about 3/4 years on 3-7-2009 went missing. She was last seen by her family at 1300 hours. Muhammad Qaism, father of baby Sana went to the Police Station Zaman Town and lodged a report and it was duly recorded- in station diary. The two appellants had rented a house in the locality 13/20 days prior to the date of incident. On 5-7-2009 one girl namely Naghma/Naeema/ Reshma daughter of Abdul Karim/Abdul Rhaim stated that she saw baby Sana being carried in his lap by one of the appellants. Consequently Mohallah persons caught hold of the appellants and interrogated them and then police was called. Upon interrogation by police the appellants disclosed that they had strangulated baby Sana from neck and after killing her they had put her dead body in a bag in a gutter near Gora Qabrustan. Appellant Noor Muhammad was taken to Police Station and appellant Bashir went with the police party to Gora Qabrustan. He showed the place to the police where he had put dead body and then he put his hand in a gutter and took out a bag. On opening the bag they found one white bag in which dead body of the victim child was found. Dead body was taken to Jinnah Hospital. The postmortem report revealed the following:-- "Tongue protruded out of mouth and is caught between teeth." Surface wounds:-- (1) Bruise on right mandibulan region 4 CM in diameter. (2) Bruise on forehead 2 CM in diameter. (3) Bruise around mouth 3 CM X 1CM. (4) Vulva found ruptured.
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When the abdomen was opened and examined bowls were found protruding outside through vagina. Vaginal swa bs were taken so were clothes of the girl and along with other biological material and were sent for chemical examination. Chemical examination found presence of human sperms both on the vaginal swabs as well as on Pajama of the deceased child. Cause of death was described as "hemorrhagic shock leading to cardio pulmonary failure due to acute injury on Vulva and pouch of Douglas." It was also stated that the child had been subjected to sexual assault. 2. The two appellants were charged with the following:-- "That you on 3-7-2009 at about 1200 to 1300 hours in furtherance of your common intention kidnapped victim baby Sana d/o Muhammad Qasim from Street No,9, Sector 40/C, Noorani Basti, Bangali Para Near Masjid-e-Aqsa, Korangi No,1 Karachi in order to murder the victim baby and thereby you committed offence punishable under section 364-A/34, P.P.C. within the cognizance of this Court. I, further charge you above named accused that in furtherance of your common intention on above date and time committed rape with victim baby in your house No,592, Street No,9, Sector 40/C, Noorani Basti, Korangi No,1, Karachi and thereby committed offence punishable under section 376/34, P.P.C. within the cognizance of this Court. I, further charge you above named accused that in furtherance of your common intention on above date, time and place committed murder by intentionally/knowingly causing death of victim baby and thereby committed offence of Qatl-e-Amd punishable under section 302/34, P.P.C. r/w section 7(a) Anti-Terrorism Act, 1997 within the cognizance of this Court. I, further charge you above named accused that in furtherance of your common intention on above date, time and place after committing offences of kidnapping/rape and Qatl-e-Amd, committed the said offences, effect of which was likely to strike terror and create a sense of fear and insecurity in the family members of victim baby and public and thereby committed an offence punishable under section 7(a)(b) and (c) within the cognizance of this Court." 3. After recording evidence and completion of trial they were sentenced under section 302, P.P.C. to suffer penalty of death by hanging by neck till dead. They were further sentenced to pay fine of Rs,100,000 each as compensation to parents of the girl and in case of non-payment of fine to undergo further imprisonment for 3 years. They were also sentenced to suffer R.I. for 10 years and to pay fine of Rs,10,000 for offence under section 376/34, P.P.C. and in case of default to undergo further imprisonment for one year. 4. Special Criminal A.T.A No,28 of 2009 has been filed by Noor Muhammad and Special Criminal A.T.A. No,29 of. 2009 has been filed by Bashir Ahmed and Confirmation Reference No,3 of 2009 has been submitted by the trial Court. 5. Learned counsel for the appellant Noor Muhammad made the following submissions:-- (1) Inspector Irshad was Investigating Officer who conducted investigation. Under section 19 of the Anti-Terrorism Act, 1997 as the section at the material was, investigation was required to be conducted by a Joint Investigation Team. (2) First information regarding the child having gone missing was, given to the police at 2200 hours on 3-7-2009. It was duly recorded in the station diary. On 5-7-2009 police was called where the two appellants had been confined by the Mohallah people. Police arrested them and then it is claimed that they confessed and thereafter one was taken to police station and the other, Bashir, took the police party to a place near Gora Qabrustan from where the dead body was recovered. Dead body was sent for postmortem and after postmortem it was handed over to the family of the deceased and thereafter F.I.R. was registered. Learned counsel submitted that the registration of F.I.R. should have been first step. Learned counsel in this regard relied upon Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Akhtar Ali and others v. The State 2008 SCMR 6. The first report as made
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to police station on 3-7-2009 should have been treated as F.I.R. and what was subsequently stated to the police by Abul-Hashim should have been treated as statement under section 161, Cr.P.C. It is a case of no evidence. There is no eye-witness to the alleged kidnapping, alleged rape and alleged murder. There was therefore, no evidence against the appellant Noor Muhammad. He relied upon Akhtar All and others v. The State 2008 SCMR 6 and Sanaullah and 3 others v. The State 1999 YLR 815. (4) There is no last seen evidence as far as appellant Noor Muhammad is concerned. Therefore, there is in any case no evidence against appellant Noor Muhammad. (5) Statements under section 161, Cr.P.C. were recorded on 11-7-2009 i,e, 6 days after the registration of F.I.R. This creates doubt on entire case of the prosecution. Learned counsel relied upon Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84 and Imran Ashraf and 7 others v. The State 2001 SCMR 424. Identification parade has no evidentiary value because firstly identifiers are not witnesses of the incident, secondly dummies in the two sets were the same and thirdly throughout proceedings doors and windows of the Court remained open. Learned counsel relied upon Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84 and Imran Ashraf and 7 others v. The State 2001 SCMR 424. (6) Application under section 540, Cr.P.C. was filed for calling of Inspector Muhammad Sarwar of S.P. Office Traffic Zone Airport to produce the Pakistan Medical Search Council Certificate and a list of police personnel who appeared for test of hepatitis 'C' because it was claimed that appellant Noor Muhammad was tested on that date. That application was rejected by the trial Court without any cogent reasons. In any case that application was filed on 27-7-2009 and it was decided on 28- 7-2009 and without giving an opportunity to the appellant to challenge that decision, final judgment was announced on 31-8-2009. Learned counsel relied upon 2001 SCMR 434. (7) Memo of arrest shows that besides the appellant Bashir other person arrested was Bashir son of Taj Muhammad. Therefore, appellant Noor Muhammad was not arrested and has been subsequently implicated. (8) There is contradiction in the statement of P.W. Muhammad Yasin. In his statement under section 164, Cr.P.C. he stated that it was Noor Muhammad who was carrying baby girl in his lap and in his evidence he stated that it was accused Bashir who was carrying baby girl in his lap. It is martial contradiction which has been completely ignored by the trial Court. (9) It was a case of simple kidnapping, sexual assault and murder. No deposition was made and no evidence was produced regarding any terror having been caused in the community or locality. Therefore, in any case it was not a case which could attract the provisions of the Anti-Terrorism Act. The case should have been tried by ordinary Sessions Court. (10) There is contradiction between the ocular evidence and the medical evidence. It is stated by P.W. Abu-Hashim that the two appellants informed the police when police came there that the girl had been killed by strangulating her but the medical evidence does not state any. strangulation. (11) It is claimed by prosecution that one Baby girl informed her father who informed father of the deceased girl that she had seen one of the accused persons giving Rs,5 to the deceased girl. Name of the girl who had seen such thing is variously stated Naghma/Naeema/ Reshma and name of her father is variously stated as Abdul Karim and Abdul Rahim. Neither girl nor her father was produced as a witness. (12) No witness has deposed against appellant Noor Muhammad and there is no corroboration of any of the statement of any of the witnesses. (13) Appellant is a married person with 5 grown up children including grown up daughters and could never have committed such a heinous offence. (14) Appellant is innocent and has been falsely implicated and convicted without any evidence against him.
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6. Mr. Ghulam Hussain Qureshi, learned counsel for appellant in Appeal No,29 of 2009 besides making many of the submissions made by learned counsel for appellant in Appeal No, 28 of 2009 made the following submissions: (1) In the station diary recorded on 3-7-2009 it is recorded that informant was Qasim father of the deceased girl. Abul-Hashim who claimed himself to be real brother of Qasim when he came in the witness box he stated that it was he who lodged information. (2) Fact that father of the Baby girl and her mother were not produced as witnesses means that baby Sana never went missing. (3) Identification parade cannot be relied upon firstly for the defects submitted by Mr. Abdul Wahab Baloch and secondly one witness identified Noor Muhammad as one who was carrying bag and the other witness identified Bashir as the who was carrying the bag in which dead body was allegedly taken for disposal. (4) It is claimed that extra judicial confession was made. No conviction can be based on extra judicial confession. In this regard learned counsel relied upon Dhani Bakhsh and another v. The State 2006 PCr.LJ 1671, Mst. Irshad Bibi v. Iftikhar and others 2008 SCMR 841 and Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538. (5) There is a distance of about 15 KM between Korangi where kidnapping, rape and murder are alleged to have been taken place and Gora Qabrustan from where dead body is stated to have been recovered. It seems un-natural that somebody after committing murder would carry dead body from Korangi to Gora Qabrustan just to throw it in a gutter. (6) Identification parade was held after 10 days and has therefore no value in law. Moreover witnesses have already seen accused persons and therefore identification parade is of no evidentiary value whatsoever. Learned counsel relied upon Syed Hashim Ali v. The State 2006 PCr.LJ 1576, Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538. (7) Recovery cannot be a sole piece of evidence upon which conviction can be based. Recovery needs independent corroboration. Learned counsel relied upon Allah Bux Laghari v. The State and others 1993 PCr.LJ 408. (8) Statement under section 154, Cr.P.C. indicates that it was a joint extra judicial confession. No conviction can be based on a joint extra judicial confession. Learned counsel relied upon Javid Rashid v. The State PLD 1992 Lah. 243. (9) If statement of baby Naghma/ Reshma is believed although said Naghma/Reshma or her father were never produced in evidence, since baby Sana is claimed by them to be carried in the lap of the appellants, it was voluntary act on part of baby Sana and therefore, would not attract charge of abduction. He relied upon Phalla Masih v. The State PLD 1989 FSC 72. (10) Conduct of investigator has not been above board. The I.O. has constantly worked under political pressure and has therefore produced a tutored report. Learned counsel relied upon Fayyaz Ahmed v. The State 2008 PCr.LJ 805. (11) When statements of witnesses were recorded under section 164 Cr.P.C, copies of statements under section 161 Cr.P.C. should have been provided to them. No mention of provision of such statements is made in notices issued for recording statements under section 164, Cr.P.C. which clearly indicates that statements under section 161, Cr.P.C. were not provided to the accused at the time of recording of statements under section 164, Cr.P.C. Learned counsel relied upon Syed Hashim Ali v. The State 2006 PCr.LJ 1576. (12) Learned counsel submitted that it is a case of circumstantial evidence and in cases of circumstantial evidence the Court must be very circumspect and the most careful in evaluating so that no link in the chain is found missing. He relied upon Syed Hashim v. The State 2006 PCr.LJ 1576. (13) On the question of dummies in the identification parade, learned counsel relied upon Arshad Ali v. The State PLD 2004 Kar. 602 and on the question that it was not a case of terrorism, learned
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counsel relied upon Jawed Ahmed Siddiqui v. The State 2000 PCr.LJ 1721. (14) Although a dead body is stated to have been recovered but there is no evidence to prove that it was dead body of baby Sana. 7. Mr. Imtiaz Jalbani, learned A.P.-G. made the following submissions:-- (1) If there is defect in investigation it does not vitiate the criminal trial. He relied upon Muhammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313.. (2) Prosecution is not duty bound to produce all the witnesses cited in the challan. For this proposition learned A.P.-G. relied upon Babu Ram and another v. State of U.P. and others 2002 (5) Supreme 236 (Supreme Court of India). (3) There is no hard and fast rule that F.I.R. should be recorded after investigation. He relied upon Sabz Ali v. The State 1985 PCr.LJ 437. (4) Learned counsel referred to Article 140 Qanoon-e-Shahadat and submitted that while the witnesses were cross-examined they were not confronted with their statements , under section 164, Cr.P.C. Therefore defence cannot take advantage of a contradiction and that too between two statements. He relied upon Jahana and another v. The State 1985 PCr.LJ 1829. (5) Learned counsel referred to Articles 38, 40, 132 of the Qanoon-e-Shahadat to contend that extra judicial confession which leads to further discovery of evidence is admissible evidence. He relied upon Muhammad Akbar, v. The State 1995 SCMR 693. (6) Although prosecution witnesses were extensively cross-examined but in the cross-examination no questions regarding factual points material to the case of the prosecution was asked. (7) It is such a crime where a 3/4 years age girl has been sexually assaulted and she lost her life as a consequence of that sexual assault. It is a case of crime against humanity and a society as a whole and if such cases do not create terror it would be difficult to visualize as to what else would. (8) Even in cases where there is circumstantial evidence death sentence can be awarded. He relied upon Sh. Muhammad Amjad v. The State PLD 2003 SC 704, Jafar Ali v. The State'1998 SCMR 2669, Nadeem v. The State 2005 PCr.LJ 1010. (9) In statements under section 342, Cr.P.C. no plea of alibi has been taken. Therefore application under section 540 Cr.P.C. were rightly dismissed by the trial Court. 8. Ms. Farida Moten, learned counsel for the complainant adopted arguments of learned A.P.-G. She however submitted that witnesses were natural and neutral witnesses and were not related to the family of the deceased girl. She further submitted that although no plea of alibi was taken in the statement under section 342 Cr.P.C. but now alibi is being contended. 9. While exercising his right of reply Mr. Abdul Wahab Baloch referred to page 31 of the Paper Book where AbulHashim has stated that "It is not correct that deceased Sana was not daughter of my brother." In response to contention of learned APG regarding non- confrontation of statement under section 164, Cr.P.C. in cross-examination learned counsel relied upon Imran Ashraf and 7 others v. The State 2001 SCMR 424. 10. Mr. Ghulam Hussain Qureshi, learned counsel for appellant Bashir submitted that all the private witnesses are long living neighbours of the family of the deceased girl and have therefore deposed in view of their old relationships. 11. We have considered the submissions made by the learned counsel and have also gone through the record and proceedings as well as case law cited at the bar. 12.At the trial P. W.1 was Malik Muhammad Akhtar, Civil Judge and Judicial Magistrate-XVI, Karachi East, who conducted, identification parade and who also recorded statements under section 164, Cr.P.C. of Munir Ahmed and Muhammad Yasin. P.W.2 was Abul Hashim, uncle of the victim girl who lodged F.I.R. and also received dead body of the victim after her postmortem examination. P.W.3 was Noor Muhammad who was also mashir regarding arrest of the accused persons as well as recovery of the dead body, examination of dead body, inspection of the spot and seizure of the
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plastic bag. P.W.4 was Dr. Farida who conducted postmortem. P.W.5 was Munir Ahmed and P.W.6 was Muhammad Yasin. P.W.7 was Dr. Abdul Jabber, who conducted examination of the appellants so as to determine whether they were capable of sexual act or not. P.W.8 was. Muhammad Aslam, who recorded F.I.R. and P.W.9 was Muhammad Irshad, the Investigating Officer. 13. Appellant Bashir Ahmed in his statement under section 342, Cr.P.C. stated that he wanted to get himself examined on oath as well as produce two witnesses. He did not produce any witness. However, he recorded his statement on oath and was cross-examined. Appellant Noor Muhammad did not produce any witness nor did he give any statement on oath. We shall discuss the evidence of the witnesses and its implications at their due places. 14. On 3-7-2009 at 2200 hours entry regarding missing child was recorded at the Police Station Zaman Town, wherein it was stated that at 1300 hours of that day baby Sana, age about 3 years, wearing a blue colour Shalwar. Kameez with lining had gone missing. It was also stated by P.W.2 that when his Bhabi Rashida informed him about missing child announcement was made on Mosque loudspeaker regarding missing girl. This aspect of the evidence has not been questioned in cross-examination of any of the witnesses. Therefore it is established by unimpeachable evidence that baby, Sana went missing at 1300 hours on 3-7-2009 and the family made announcement on Mosque loudspeaker as well as through loudspeaker on a Rickshaw but the baby was not found. 15. Abul Hashim stated that on 5-7-2009 one girl namely Naghma came in the street and disclosed to him that the persons who had given Rs,5 to baby Sana were passing in the street. P. W.2 stated that he came out and with help from others caught hold of both the present appellants. In cross- examination he stated that Abdul Rahim is also residing in the neighborhood and that Abdul Karim was not their neighour. He also stated that Naghma is daughter of Abdul Rahim and her real name was Reshma. P.W.3 stated that name of the girl was Naeema son of Abdul Karim. Learned counsel for the appellants laid a lot of, stress on discrepancy in three names given to the girl and two names given to her father. They also emphasized that neither the girl Naghma/Naeema/Reshnia was produced in Court nor her father Abdul Rahim/Abdul Karim was produced as witness. P.W.2 stated that when the accused had been apprehended Naghma came there and informed that one person amongst the two had given Rs,5 to deceased Sana and picked her up in his lap. Both the witnesses merely repeated what they claimed Naghma had told them. Firstly because it is, only hearsay evidence and secondly because since such an aspect was not brought in evidence, by producing Naghma or her father we will completely take out of consideration whether Rs,5 .were given by any of the appellants to the victim girl or not and proceed on the basis that no such rupees five were given by any of the appellant to the victim girl and that nobody saw her in the lap of any of the Appellants. 16. Abul Hashim, P.W.2 stated that en being informed by Naghma he came out and saw the present two appellants and he caught hold of them. P, W.3, Noor Muhammad stated that he upon hearing commotion came out of his house and saw that people had apprehended the two appellants. He further stated that the appellants had come to reside there about 13 days prior to the incident in a rented house. P.W. 5 Munir Ahmed stated that when he came out of his house upon hearing commotion and went to the place where two appellants had been kept by the Mohallah people, he noticed that one Of them was a person whom he had seen taking a bag on his shoulder the previous day. He also in the identification parade recognized, appellant Bashir as the person who was taking away the bag and disclosed that Bashir was carrying a bag on his shoulder and the other appellant Noor Muhammad was accompanying him. In his statement under section 164, Cr.P.C. Munir Ahmed stated that he saw these two appellants coming in uniform of traffic constables and one of then greeted him with a Salam to which he replied. He stated that he saw bag hanging on the shoulder of Bashir Ahmed. Therefore, testimony of Munir Ahmed both in the
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statement under section 164, Cr.P.C. as well as in the deposition is the same that it was the Bashir that he saw carrying the bag on his shoulder. This aspect has remained unchallenged in the cross- examination. This is one link in the chain of circumstantial evidence. 17.It has also come in evidence that the two accused persons had rented a house in the locality. This was done 13/20 days prior to the date of the incident. It has also come in evidence that after lodging the F.I.R., when the premises were checked not a single item of household etc., was found there. Taking the house on rent by the appellants is not denied and is proved by many witnesses. On 5-7-2009 the house was found to be without any farthing in it. That leads to the conclusion that present appellants took away their possession and were escaping from that place. 18.Many questions have been agitated by the learned counsel in respect of the identification parade. Mr. Abdul Wahab Baloch contended that identification parade has no evidentiary value because firstly identifiers are not witnesses of the incident, secondly dummies in the two sets of identification were same, thirdly when the proceedings were conducted doors and windows of the Court room remained open and fourthly in the identification parade one witness identifies the appellant Noor Muhammad who was carrying the bag and the other witness identifies Bashir as one who was carrying the bag. Learned counsel relied upon Muhammad Yameen's case (Supra). Facts of that case were that F.I.R. was registered on complaint of a Naib Sobedar, who stated that he was present in his unit when a Hawaldar came and informed that some unknown accused had severely injured another Hawaldar. It was alleged that "a young person" came at about 8 O'clock and fired which hit Hawaldar Akram. Accused were acquitted by the Anti-Terrorism Court. Judgment was reversed by a Division Bench of this Court. The Supreme Court observed that there was no explanation as to why the particulars were not provided in the aforementioned statement although there were stated to be 4 eye-witnesses of the occurrence. It was also observed that statements of witnesses were recorded after 21 days which created doubt regarding identification parade. Supreme Court observed that identification parade was conducted after 76 days and that the prosecution witnesses had not described the role of the each accused which was played at the time of occurrence. It was stated that identification parade had not shown details, names and addresses of dummies. All these factors led the Supreme Court to accept the appeal. 19.In Imran Ashraf's case (Supra),…
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