HIGH COURT OF SINDH AT KARACHI
Special
Criminal Anti-Terrorism Appeal No.3/2011
Special
Criminal Anti-Terrorism Appeal No.4/2011
Special
Criminal Anti-Terrorism Appeal No.5/2011
Confirmation Case No.02 of 2011
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Aftab
Ahmed Gorar
JUDGMENT
Date of Hearing: 03rd
March 2016
Date of Announcement: 28th March 2016
Appellants
Arz Muhammad S/o Muhammad Ramzan and Moar Burriro S/o Abdul
Sattar through M/s. Mushtaq Ahmed & Raja Hassan Nawaz, advocates
Irshad
Ahmed son of Mohabat Khan through Mr. Abdul Razzak, Advocate
Muhammad
Hassan son of Taj Muhammad through M/s. Mehmood A. Qureshi & Jamshed Iqbal,
advocates
Respondent State through Mr.
Muhammad Iqbal Awan APG.
Complainant: Kamran
Qadir through Mr. Lal Hussain Shah, Advocate
Naimatullah
Phulpoto, J.-- Appellants
Arz Muhammad alias Jalal son of Muhammad Ramzan Balouch, Moar son of Abdul
Sattar Burriro, Irshad Ahmed son of Mohabat Khan and Muhammad Hassan son of Taj
Muhammad were tried by learned Judge,
Anti-Terrorism Court-III, Karachi in Special Case No.20/2010, arising out of
F.I.R. No.53/2010, registered at police station Defence (AVCC) for offences
under sections 365-A, 34 PPC read with section 7(e) of the Anti-Terrorism Act,
1997. Appellant Arz Muhammad alias Jalal Gorchani Baloch was also tried in
Special Case No.21/2010, arising out of F.I.R. No.11/2010, registered at P.S.
Defence (AVCC), Karachi for offence under sections 324, 353, 34, PPC. Appellants
Arz Muhammad alias Jalal Gorchani Baloch son of Muhammad Ramzan, Moar Burriro
son of Abdul Sattar, Irshad Ahmed son of Mohabat Khan and Muhammad Hassan son
of Taj Muhammad were also tried in Special Cases Nos.22, 23, 24 and 25 of 2010,
arising out of F.I.Rs. Nos.12, 13, 14 and 15 of 2010, respectively, registered
at P.S. Defence (AVCC) for offence under section 13(d) of the Arms Ordinance,
1965 by learned Judge, Anti-Terrorism Court-III, Karachi.
After full dressed trial, appellants were found guilty by the learned trial
Court and were convicted and sentenced as under:-
(i)
Accused
Arz Muhammad alias Jalal Gorchani Baloch son of Muhammad Ramzan, Moar Buriro
son of Abdul Sattar, Muhammad Hassan son of Taj Muhammad and Irshad Ahmed son
of Mohbat Khan are convicted under section 7(e) of Anti-Terrorism Act, 1997
read with Section 365-A, PPC to the punishment of death and they shall be
hanged by Neck till death. Their movables and immovable properties shall be
forfeited to the Government.
(ii)
I
also convict all the four accused Arz Muhammad alias Jalal Gorchani Baloch,
Moar Buriro, Muhammad Hassan and Irshad Ahmed under section 324, 353, 34 PPC to
suffer imprisonment for 7 years and liable to pay fine of Rs.1,00,000 each in
case of non-payment they shall suffer R.I. for 03 years more.
(iii)
I
also convict each accused Arz Muhammad alias Jalal Gorchani Baloch, Moar
Buriro, Muhammad Hassan and Irshad Ahmed under section 13(d), Arms Ordinance,
1965 to suffer R.I. for 5 years and pay fine of Rs.50,000 each in case of
non-payment they shall suffer R.I. for one year more.
Trial
Court made reference for confirmation of death sentences as required under
section 374, Cr.PC. Benefit of section 382-B, Cr.PC was extended to appellants
in the case.
2. Through aforesaid appeals, appellants
have challenged their conviction and sentence recorded against them. We intend
to dispose of aforesaid appeals and death reference by this single judgment.
3. Brief facts of the prosecution case as
disclosed in the F.I.R. are that on 14.01.2010 Kamran Qadir lodged F.I.R.,
alleging therein that on 14.01.2010 in the morning at 07:15 a.m. he along with
his driver Moar dropped his two children at their school. Thereafter, his
driver Moar went to drop his wife at Agha Khan Hospital. After returning from hospital , it is alleged driver Moar went to drop the minor
son of the complainant, namely, Arsh Nabi Kamran, aged three years at 08:45
a.m. in the car of the complainant bearing No.AKM-775, Honda City to school.
Complainant has stated that driver failed to return back home by 02:00 p.m.
Complainant was worried because of his son. Then complainant went in search of his
son but there was no clue for his son Arsh Nabi Kamran. Complainant went to the
police station and lodged his report. It was recorded on 14.01.2010 vide Crime
No.53/2010 at police station Defence (AVCC) for offences under sections 364-A/365,
PPC. Investigation of the aforesaid crime was entrusted to Zakaullah Sangi.
Investigation officer contacted the complainant and he informed investigation
officer that ransom has been demanded from him. Thereafter, investigation
officer added section 365-A, PPC. Complainant had shown the place of incident to
the investigation officer, from where minor boy was kidnapped. Such mashirnama
was prepared in presence of mashirs. Investigation Officer recorded 161, Cr.PC
statements of PWs. Investigation officer came to know on spy information that
car belonging to the complainant, used in the commission of offence, has been
parked near Hab River Road, opposite Quetta Al-Noor Hotel, Yousuf Goth, Karachi
bearing No.AKM-775 Honda City. Police secured the same in presence of mashirs
and prepared such mashirnama and brought the car to the Police Station Defence
(AVCC), Karachi. On 20.01.2010 complainant informed the investigation officer
that on 19.01.2010 he along with his friend Abid Hussain had gone to Dera
Allahyar and paid ransom of Rs.1,000,000/-. Thereafter, investigation officer
recorded statements of PW Abid Hussain under section 161, Cr.PC. Investigation
officer handed over car to complainant on 20.01.2010 on superdari and started
search of the culprits involved in the offence. On 24.01.2010 investigation
officer received spy information that culprits would shift the boy to Interior
Sindh through Northern Bypass. On such information, investigation officer
conveyed this message to the high officials and proceeded along with his staff
to the Northern Bypass by making such entry. Investigation officer started
checking of the vehicles at 04:45 a.m. A car bearing registration No.ALS-983
Suzuki Alto, silver coloured, appeared from HAB and
reached at Northern Bypass. It was stopped by the police in which
four persons were sitting. While seeing the police accused alighted and started
firing on the police, police also fired in self defence. After exchange of fires
police succeeded to arrest the accused and recovered a boy, namely Arsh Nabi
Kamran, sitting on the back seat of the car. Complainant was also accompanied
with the police party at that time. He identified his son. During
interrogation, accused disclosed their names, as Arz Muhammad alias Jalal
Gorchani Baloch son of Muhammad Ramzan, Moar Burriro son of Abdul Sattar,
Irshad Ahmed son of Mohabat Khan and Muhammad Hassan son of Taj Muhammad. Their
personal search was conducted in presence of mashirs. On the personal search of
accused Arz Muhammad alias Jalal Gorchani Baloch one Kalashnikov, containing 7
live bullets and one bullet in the chamber, one mobile phone Nokia-1208 with
one SIM, three separate SIMs wrapped in a paper and cash Rs.300/- were
recovered from his possession. From personal search of accused Moar one 30 bore
pistol, without number, containing two bullets in the magazine and one in
chamber, one Nokia mobile phone 1200 with SIM and one separate SIM and cash
Rs.200/- were recovered. Personal search of accused Muhammad Hassan was
conducted, a 30 bore pistol without number with three live bullets in the
magazine and one in chamber and cash Rs.400/- were recovered. From person
search of accused Irshad Ahmed, one 30 bore pistol, containing one bullet in
chamber and one in magazine and cash Rs.200/- were recovered. Investigation
Officer inquired from all the accused persons about the licenses of the weapons
carried by them, to which they replied in negative. Thereafter, mashirnama of
arrest and recovery was prepared in presence of mashirs, case property was
sealed at spot; accused, case property and boy were brought to police station.
Investigation Officer recorded statement of complainant under section 161,
Cr.PC, thereafter, Investigation Officer lodged F.I.R. against four accused on
behalf of the State being FIR Nos.11/2010, under sections 324, 353, 34, PPC and
F.I.Rs. Nos.12, 13, 14 and 15 of 2010, were registered at P.S. Defence (AVCC)
against accused Arz Muhammad alias Jalal Gorchani Baloch, Moar Burriro, Irshad
Ahmed and Muhammad Hassan for offence under section 13(d) of the Arms
Ordinance, 1965. Thereafter, F.I.Rs. Nos.12, 13, 14
and 15 of 2010 were entrusted to Investigation Officer Bashir Ahmed of P.S.
Defence (AVCC) for investigation and arms and ammunitions recovered from
accused persons and Car ALS-983, Suzuki Alto, silvered colour were handed to
the Head Muharar of police station Defence (AVCC). Investigation Officer
recorded 161, Cr.PC statements of PWs, Investigation Officer of the aforesaid
crimes visited place of encounter/vardat and in presence of mashirs prepared
such mashirnama. Thereafter, it appears that on 27.01.2010 Investigation
Officer submitted an application to the Principal, Rohi Montessori School,
Clifton, Karachi for
obtaining the attendance certificate of kidnapped boy Arsh Nabi Kamran with effect
from 14.01.2010 to 24.01.2010. Investigation Officer on 27.01.2010 went to the
Incharge, CPLC for collecting the call data of Cell Nos.03003600889,
03002310484 and 03008298870. On the completion of usual investigation,
Investigation Officer submitted challan against the accused under the above
referred sections.
4. On the application of learned Special
Prosecutor cases under sections 324, 353, 34, PPC and under section 13(d) of
the Arms Ordinance, 1965, were amalgamated by learned Judge, Anti-Terrorism
Court-III, Karachi for joint trial by order dated 04.09.2010. Thereafter,
charge was framed against the accused in the aforesaid Crimes at Ex-6. All the
four accused pleaded not guilty and claimed to be tried.
5. At trial prosecution examined the following witnesses:-
1. PW-1/Complainant Kamran
Qadir at Ex-11
2. PW-2 Tajuddin at Ex-12
3. PW-3 Abid Hussain at
Ex-15
4. PW-4 PC Wasim Abbas at
Ex-16
5. PW-5 Ashraf Ali at
Ex-17
6. PW-6 Zakaullah Sangi at
Ex-18
7. PW-7 Bashir Ahmed,
Investigation Officer at Ex-19
8. PW-8 Tahir Naseer,
Investigation Officer at Ex-20
Thereafter,
prosecution side was closed at Ex.21.
6. The statements of accused were recorded
u/s 342 Cr.P.C at Ex.22 to 25, in which they have denied the prosecution
allegations. Accused Moar has denied that he was driving the car of the
complainant and raised plea that he is not driver. He has also denied that
calls were made from his SIM/number. He has further stated that PWs have
deposed against him at the instance of Investigation Officer Tahir Naseer, who
wanted to show his efficiency before DIG Akhtar Memon. Accused Arz Muhammad
alias Jalal Gorchani Baloch has also denied that he had received ransom from
the complainant. He has also raised plea that he has falsely been implicated in
this case at the instance of DIG Akhtar Memon and MNA Aijaz Jakhrani and
claimed that he was arrested on 17.01.2010 from his native place.
Appellant/accused Muhammad Hasan and Irshad Ahmed have also denied the
allegations and stated that abductee was not recovered from their possession in
police encounter and denied about police encounter. They have raised plea that
Investigation Officer in order to show his efficiency has involved them falsely
in this case at the instance of DIG Akhtar Memon, who is brother-in-law of the
complainant. Appellant/accused Irshad Ahmed has examined in defence his mother Mst.
Samul Khatoon and wife Mst. Haseena. DWs have been examined at Ex-27 and 28. He
has also examined himself on oath.
7. We have carefully heard the learned
counsel for the appellant, learned A.P.G. for the State and perused the
evidence minutely.
8. The facts of this case as well as
evidence produced before the trial Court find an elaborate mention in the
impugned judgment passed by learned Judge, Anti-Terrorism Court-III, Karachi and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
9. Mr. Mushtaq Ahmed, learned counsel for
the appellants Arz Muhammad and Moar Buriro argued that accused Moar had never
remained driver of complainant Kamran Qadir, no one
had seen Moar while kidnapping the boy for ransom. He has argued that no cell
numbers were in the name of appellant Moar and same have been managed by the police.
As regards to appellant Arz Muhammad alias Jalal Gorchani Baloch, it is argued
that no ransom was received by Arz Muhammad and no call data of contact between
the complainant and Arz Muhammad has been proved by the prosecution at trial.
He has argued that no ransom was recovered from Arz Muhammad. Regarding police
encounter, it is argued that it was fake encounter. Despite use of
sophisticated weapons, not a single scratch was caused to anybody. He has argued
that prosecution case against appellants Moar and Arz Muhammad is highly
doubtful.
10. Mr. Mehmood A. Qureshi, learned counsel for
accused Muhammad Hassan argued that only piece of evidence collected against accused
was participation in police encounter and recovery of abductee boy. It is
argued that prosecution has failed to establish the contact of these appellants
with accused Moar and Arz Muhammad in the commission of offence. It is argued
that despite exchange of fires with sophisticated weapons not a single injury
was caused to anybody or damage to police mobile. It is further argued that
after encounter Investigation Officer inspected the place of wardat but not a
single empty used from the official weapons was collected. Lastly argued that
no encounter at all had been taken place and weapons have been foisted upon the
accused.
11. Mr. Muhammad Iqbal Awan,
learned Assistant Prosecutor General Sindh, assisted by Mr. Lal Hussain Shah,
learned counsel for the complainant, argued that appellant Moar was driver of
the complainant appellant Moar took the boy/abductee from the house for school
in Car NoAKM-775 but did not return back on 14.01.2010. Learned A.P.G. has also
argued that complainant on the next day of incident had received calls from the
mobile numbers of accused Moar in which demand of ransom was made. Learned
A.P.G. has further argued that complainant and his friend PW Abid Hussain paid
ransom to accused Arz Muhammad at Dera Allahyar. Regarding other appellants,
namely, Muhammad Hassan and Irshad Ahmed, learned A.P.G. argued that while
shifting the abductee to interior Sindh boy was recovered in police encounter at
Northern Bypass. A.P.G. argued that police officials
recovered boy from all the four accused after encounter and recovered unlicensed
weapons from them. It is also argued that prosecution has proved main case as
well as cases under section 13(d) of the Arms Ordinance, 1965 against the
accused.
12. We have carefully heard the learned counsel
for the parties and scanned the prosecution and defence evidence. As the cost
of repetition, we discuss the prosecution evidence, keeping in view the
peculiar facts and circumstances of the case.
13. Complainant Kamran Qadir has deposed that on
14.01.2010 he left his house along with his two children for leaving them at school
and he returned home at 07:15 a.m. His driver Moar took his wife, who is doctor
by profession, to Agha Khan Hospital. When driver Moar returned after leaving
his wife at her job driver Moar took his son Arsh Nabi Kamran, aged about three
years for leaving him at School Rohi Montessori in Clifton. He further stated
that usually children return back at 02:00 p.m. but on 14.01.2010 his son Arsh
Nabi Kamran did not return back. He made search for his son but without any
result and reported the matter to police station Defence. Complainant has
stated that on the next day at about 10:30 to 10:00 a.m. he received a call
from the cell number of his driver Moar 03002310484 on his cell number
03008298870. The caller from the said cell number told to the complainant that
his son has been kidnapped for ransom and demanded Rs.2 crores. Thereafter,
number of driver was switched off. After five to ten minutes complainant again
received a call from the same number and he was asked to make arrangement of
the ransom and threats were issued to him. Complainant replied to the caller
that he was unable to make arrangement of Rs.2 crores. After 3/4 days from another
cell number 03003600889 complainant received a call. It was also the number of
driver Moar. Complainant has stated that ransom of Rs.1,000,000/-
was settled with the caller for return of his boy but complainant was asked to
deliver the amount in Dera Allahyar. Complainant has stated that on 19.01.2010
he along with his friend Abid Hussain left for Dera Allahyar via Sukkur, Jacobabad Road in his car
and reached at Dera Allahyar at 04:00 p.m. Complainant contacted kidnappers,
who asked the complainant to wait at Jacobabad Highway. Complainant had deposed
that at 04:45 p.m. two persons appeared on motorcycle. They were aged about 40
to 45 years. They demanded ransom from the complainant. He inquired from them
about his son, they told that complainant would
receive his son at Karachi. Complainant gave them ransom of Rs.1,000,000/- and they promised that his son would reach at
Karachi. Thereafter, complainant along with his friend PW Abid Hussain returned
to Karachi. Complainant has further stated that on the same night culprits
demanded from him Rs.1 Crore more as ransom. On 20.01.2010 Tahir Naseer,
investigation officer of the case came at his home and handed over car
No.AKM-775 Honda City in which his son was kidnapped. Complainant has stated
that on 24.01.2010 at 02:00 a.m. he along with police party of CPLC left Lucky
Stop NLC Chowrangi on Northern Bypass where police party started checking of
the vehicles. At 04:00 a.m complainant had deposed that one Alto Car of Silver
Colour, bearing Registration No.ALS-983 appeared. While seeking the police
party, firing was started upon the police party. Police party also retaliated
and apprehended the accused persons after encounter. Complainant had deposed
that police found his son sitting in the car at its back seat and boy was
handed over to the complainant. On the inquiry, accused disclosed their names
to the police. Personal search of accused was conducted in presence of mashirs.
From possession of accused Arz Muhammad one Kalashnikov, one mobile set and
some SIMs were recovered. From accused Moar complainant stated that he was
driver and police secured one revolver, one mobile set and cash from his
possession. Third accused on inquiry disclosed his name as Muhammad Hassan, one revolver was recovered from his possession. From
accused Irshad Ahmed, a revolver was also recovered. All the accused had no
licenses for the weapons carried by them. S.H.O. prepared mashirnama of their
arrest and recovery of weapons and boy in presence of mashirs and weapons were
sealed at the spot. Thereafter, accused and case property were brought to the
police station where case of encounter with the police and case under section 13(d)
of the Arms Ordinance, 1965 were separately registered against all the four
accused on behalf of State. Complainant has categorically stated that accused Moar
present in Court was same so also accused Arz Muhammad, to whom he had given
ransom of Rs.1,000,000/-. Complainant has stated that other three accused were
also arrested in his presence and police recovered his son from them at the
time of encounter.
14. PW-3 Abid Hussain, friend of the
complainant, has stated that on 14.01.2010 he came to know that son of the
complainant Kamran Qadir has been kidnapped. On 19.01.2010 at 08:00 a.m. he
along with complainant Kamran Qadir had gone to Dera Allahyar, Balochistan in
car via Sukkur. The accused contacted complainant Kamran Qadir in his presence
on mobile and asked him to stop at Jacobabad road and wait for them. At 05:00
or 05:30 p.m. two persons appeared on a motorcycle and demanded ransom from the
complainant. Complainant asked them about his son, to which they replied that
he would get his son at Karachi. Complainant paid them ransom of Rs.1,000,000/-, thereafter, he along with complainant returned
back to Karachi but son of complainant was not released. He has stated that
complainant informed him that accused have demanded more ransom. This witness
has categorically stated that accused Arz Muhammad present in Court was same
who had received Rs.1,000,000/- as ransom from
complainant in his presence.
15. PW-8 Tahir Naseer has stated that he was
entrusted investigation of F.I.R. No.53/2010, registered at P.S. Defence under
section 364-A, 365, PPC. He met the complainant, on his pointation prepared
mashirnama of the place from where son of the complainant was kidnapped. IO
secured car of the complainant bearing NoAKM-775 Honda City. Investigation
Officer was informed by the complainant on 20.01.2010 that on 19.01.2010 he
along with his friend Abid Hussain had gone to Dera Allahyar where they had
paid ransom to two persons at Jacobabad Road. Investigation Officer has deposed
that on 24.01.2010 he received spy information that accused would shift the
abductee/boy to interior Sindh through Northern Bypass. IO and staff started
Nakabandi at 04:45 a.m. A car bearing registration No.ALS-983, Suzuki Alto,
silver colour appeared from Hab side to the Northern Bypass. Police party gave
signal for stopping it and four persons alighted from the car. While seeing the
police party they started firing with intention to kill. IO has stated that
police party also retaliated and apprehended four accused persons and recovered
abductee Arsh Nabi Kamran, sitting on the back seat of the car. Boy was
identified by the complainant. On inquiry, one accused disclosed his name as
Arz Muhammad, he was carrying Kalashnikov, it was secured by the police, it’s magazine
contained 7 live bullets and one bullet in its chamber, one mobile phone Nokia
1208, having one SIM, three more SIMs wrapped in a paper and cash Rs.300/-. On
the personal search of accused Moar one 30 bore pistol, without number,
containing two bullets in the magazine and one in chamber, one Nokia mobile
phone 1200 with SIM and one separate SIM and cash Rs.200/- were secured. From
accused Muhammad Hassan, one 30 bore pistol without number with three live
bullets in the magazine and one in chamber and cash Rs.400/- were secured. From
personal search of accused Irshad Ahmed, one 30 bore pistol, containing one
bullet in chamber and one in magazine and cash Rs.200/- were secured. All the
accused had no licenses for the weapons carried by them. ASI prepared
mashirnama of arrest and recovery and sealed the case property at the spot and
brought accused and case property to the police station where Investigation
Officer registered F.I.R. No.11/2010 under sections 324, 353, 34, PPC on behalf
of the State against the accused. Separate F.I.Rs. Nos.12, 13, 14 and 15 of
2010 were registered at P.S. Defence against the accused on behalf of the
State. Investigation Officer collected 5 empties of Kalashnikov and 3 empties
of pistols from place of encounter. Investigation Officer received certificate
of child regarding his absence from the school from Rohi Montessori, Clifton, Karachi w.e.f. 14.01.2010 to 24.01.2010. Investigation
Officer collected call data of Cell Phones 03003600889, 03002310484 and
03008298870 and call data of Cell numbers 03003600889, 03002310484 and
03008298870. Prosecution has also examined mashirs of arrest and recovery.
15. P.W-7 Bashir Ahmed has conducted
investigation of cases bearing F.I.R. No. 11/2010 u/s 324/353/34 PPC and F.I.R.
Nos. 12/2010, 13/2010, 14/2010 and 15/2010 u/s 13 (d) Arms Ordinance of PS
AVCC. He has stated that he had visited place of encounter which was shown to
him by IO Tahir Naseer situated at Northern Bypass Chowrangi Lucky stop and he
prepared mashirnama in presence of the mashirs ASI Faiz Ahmed and PC Ashraf Ali.
IO recorded 161 statements of P.Ws/police officials and of complainant Kamran
Qadir and sent Arms to FSL and produced report Forensic Division at Ex.19-H. In
the cross examination, he has admitted that none had received injuries in the
incident and police mobile was also not hit. He has also admitted that
arms/weapons were dispatched to ballistic expert on 30.01.2010 but the same
were received by Ballistic Division on 17.03.2010.
16. Appellant Irshad Ahmed in his evidence on
oath has stated that on 22.01.2010, he left Jacobabad at 10:00 pm for Karachi
by coach along with his mother Samul Khatoon and wife Mst. Haseena. On the next
day reached at Sohrab Goth Karachi at 6:00 am and
police arrested him from the coach. Mst. Haseena DW-2 wife of accused Irshad
Ahmed and his mother DW-3 Mst. Samul have also narrated the same facts. Accused
Irshad Ahmed, his wife and mother in cross-examination to learned
SPP have denied the suggestion of SPP for deposing falsely.
17. We have given anxious consideration to the
submissions made by the learned counsel for the parties and re-appraised the
prosecution evidence to satisfy ourselves about the truthfulness of the
prosecution story. We find that victim boy aged about three years was not
examined before the trial Court on account of his tender age on the application
of complainant. However, complainant/father of the victim boy has been examined
by the prosecution. He has deposed that his son, namely, Arsh Nabi Kamran was picked
up by his driver Moar to the school in his car but boy was not returned home by
the driver. Driver Moar had also disappeared along with car. On the next day,
the complainant received a call from a number of Moar driver but caller was some
unknown person and he demanded ransom from the complainant. Complainant
narrated this fact to the police and proceeded along with his friend Abid
Hussain to Dera Allahyar for payment of ransom of Rs.1,000,000/-
for release of his son, as demanded by accused. Complainant has categorically
stated that he paid Rs.1,000,000/- to two persons who
appeared on motorcycle at Jacobabad Road and complainant identified accused Arz
Muhammad in the Court and stated that he was same person, who got ransom from
him. Complainant was subjected to cross-examination at length but defence could
not shake his evidence with regard to the above narrated facts and payment of
ransom to accused Arz Muhammad. Evidence of complainant is fully corroborated
by his friend PW-3 Abid Hussain. He has deposed that he came to know about the
incident and complainant took him to Dera Allahyar for payment of ransom of
Rs.1,000,000/-. He has stated that complainant paid
Rs.1,000,000/- to two persons who appeared on motorcycle
on Jacobabad Road. PW Abid Hussain clearly deposed that accused Arz Muhammad present
in the Court was the same, to whom the ransom of Rs.1,000,000/- was paid for
release of son of the complainant. Evidence of the complainant and PW-3 Abid
Hussain fully establish the factum of abduction and payment of ransom. The evidence
of complainant fully corroborated by other evidence established the abduction of
minor boy by accused Moar and payment of ransom to appellant Arz Muhammad.
Complainant and PW-3 had no motive to falsely implicate the accused/appellant
Moar and Arz Muhammad in this crime. Defence plea of these accused appears to
be afterthought and unbelievable. As regards to the second episode of the
incident regarding recovery of the boy in the police encounter and recovery of
the arms/crime weapons from the accused persons after registration of the
F.I.R. Nos. 12, 13, 14 and 15 of 2010 were handed to Bashir Ahmed IO of P.S.
Defence (AVCC) for investigation and recovered arms and ammunitions recovered from
the accused persons and Car ALS-983, Suzuki Alto, silvered colour were handed
to the Head Muharar of police station Defence (AVCC) on 24.01.2010.
Investigation Officer recorded 161, Cr.PC statements of PWs and ASI Tahir
Naseer of P.S. AVCC, Investigation Officer of the aforesaid crimes visited the
place of encounter and inspected it in presence of mashirs and prepared such
mashirnama. Thereafter, it appears that on 27.02.2010 Tahir Naseer Investigation
Officer submitted an application to the Principal, Rohi Montessori School,
Clifton, Karachi for obtaining the attendance
certificate of kidnapped boy Arsh Nabi Kamran with effect from 14.01.2010 to
24.01.2010. Investigation Officer on 27.01.2010 went to the Incharge, CPLC for
collecting the data of Cell Nos.03003600889, 03002310484 and 03008298870. On
the completion of investigation, Investigation Officer submitted challan
against the accused under the above referred sections. Call data collected by
the Investigation Officer clearly connects these two accused in the commission
of offence. Call data of Cell Nos.03003600889, 03002310484 and 03008298870 reflects
that calls were made from Cell Numbers 0300-2390484 and 0300-2600889 in the use
of driver from which calls were made to Cell No.03008298870 with effect from
14.01.2010 to 19.01.2010.
18. Kidnapping of minor boy for ransom is
proved against accused Mour and Arz Muhammad for the reasons that abduction was
for extortion of ransom. In the case of JUNAID REHMAN and others vs. THE STATE
and others (PLD 2011 S.C 1135), Honourable Supreme Court of Pakistan has held
as follows:-
“6. From a bare reading of the provisions of section 365-A, P.P.C. and
section 2(n) of the Anti-Terrorism Act, 1997 it is quite evident that in order
to constitute an offence of abduction for ransom actual payment of ransom and
proof thereof are not sine qua non and the said offence also stands constituted
if there is an abduction and the purpose of abduction is extortion of ransom
(section 365-A, P.P.C.) or ransom is demanded for release of the abductee
(section 2(n) of the Anti-Terrorism Act, 1997). Section 365-A, P.P.C. reads as
follows:
"365-A. Kidnapping
or abduction for extorting property, valuable security, etc.--Whoever
kidnaps or abducts any person for the purpose of extorting from the person
kidnapped or abducted, or from any person interested in the person kidnapped or
abducted, any property, whether movable or immovable, or valuable security, or
to compel any person to comply with any other demand, whether in cash or
otherwise, for obtaining release of the person kidnapped or abducted, shall be
punished with death or imprisonment for life and shall also be liable to
forfeiture of property."
Section
2(n) of the Anti-Terrorism Act, 1997 provides as under:
"(n) "kidnapping
for ransom" means the action of conveying any person from any place,
without his consent, or by force compelling or by any deceitful means inducing
him, to go from any place, and unlawfully detaining him and demanding or
attempting to demand, money, pecuniary or other benefit from him or from
another person, as a condition of his release."
19. In the present case Kamran Qadir P.W-1, the
father of abductee boy had given the details regarding the incident by
involving his driver accused Mour in the abduction of his son namely Arsh Nabi
Kamran aged about 03 years. He had also provided elaborate details of demands
made by culprits from time to time for payment of ransom for the release of his
son. Complainant has given evidence before the trial court and involved accused
Mour in the abduction of his son and regarding accused Arz Mohammad,
complainant has deposed that he paid ransom to him at Dera Allahyar, Jacoabad
road. Evidence of complainant and P.W-3 Abid Hussain who had accompanied with
the complainant to Dera Allahyar and payment was made before him. Evidence of
both witnesses had remained completely unshaken in cross-examination. They had
no motive to falsely implicate the accused in this case. We have no hesitation
to hold that prosecution has proved it’s case of
kidnapping for ransom against accused Moar and Arz Muhammad.
20. Evidence against other appellants Muhammad Hassan and Irshad Ahmed is that kidnapped boy was recovered from their possession in a car on 24.01.2010 at Northern Bypass by police after encounter. It was the case of the prosecution that on spy information police party proceeded to the pointed place and gave signal to Car No.ALS-983, Suzuki Alto, silvered colour. Accused started firing upon the police party with intention to kill; police also retaliated and succeeded to arrest four accused, namely Arz Muhammad, Moar, Muhammad Hassan and Irshad Ahmed and recovered boy from the car, who was identified by complainant Kamran Qadir, he was with the police, at the relevant time. We are unable to believe the story of police encounter and recovery of unlicensed weapons for the reasons that the second episode of the incident shows that despite firing by the accused with sophisticated weapons including Kalashnikov not a single injury/scratch was caused to the police party or complainant Kamran Qadir, even no damage was caused to the police mobile. Investigation Officer has stated that he has received spy information that culprits would shift the child to interior Sindh, he started checking at the place of incident. It was case of spy information, as to why the Investigation Officer did not associate independent persons as mashir of arrest and recovery. Weapons were dispatched to Forensic Division on 30.01.2010 but the same were received by Forensic Division on 17.03.2010. Delay in sending weapons to forensic division has not been satisfactorily explained, as such no sanctity can be attached to positive report. The standard of the proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was case of police encounter. It was desirable that it should have been investigated by some other agency. Such dictum has been laid down by the Honourable Supreme Court in the case of Zeeshan alias Shani versus the State (2012 SCMR 428). Relevant portion is reproduced as under:-
“11. The
standard of proof in this case should have been far higher as compared to any
other criminal case when according to the prosecution it was a case of police
encounter. It was, thus, desirable and even imperative that it should have been
investigated by some other agency. Police, in this case, could not have been
investigators of their own cause. Such investigation which is woefully lacking
independent character cannot be made basis for conviction in a charge involving
capital sentence, that too when it is riddled with many lacunas and loopholes
listed above, quite apart from the afterthoughts and improvements. It would
not be in accord of safe administration of justice to maintain the conviction
and sentence of the appellant in the circumstances of the case. We, therefore,
by extending the benefit of doubt allow this appeal, set aside the conviction
and sentence awarded and acquit the appellant of the
charges. He be set free forthwith if not required in
any other case.”
21. From the close scrutiny of the evidence, we
have come to the conclusion that there is no cogent evidence against remaining
two accused Muhammad Hassan and Irshad Ahmed to connect them in the commission
of the offence of kidnapping for ransom. As regards to the conviction and
sentence of all appellants/accused in the case of encounter and under section
13(d) of Arms Ordinance, 1965, are concerned, we have already come to the
conclusion that prosecution has failed to prove its case against the appellants
to maintain their convictions in the police encounter case bearing No.11/2010,
registered at P.S. Defence under sections 324, 353, 34, PPC so also in 13(d)
Arms Ordinance, 1965 cases bearing crimes Nos.12, 13, 14 and 15 of 2010,
registered at P.S. Defence. Charge framed by trial Court at Ex-6 showed that in
Crime No.11/2010 under sections 324, 353, 34 PPC it was framed against accused
Arz Muhammad, not against all accused but all the accused were convicted and
sentenced under sections 324, 353, 34, PPC, contrary to law. Prosecution failed
to prove by cogent evidence that accused attempted to commit qatl-i-amad and
assaulted or used criminal force to deter police party on 24.01.2010 from
discharge of its duty. Rightly reliance has been placed upon the case of MUMTAZ
ALI versus THE STATE (2011 SCMR 70), in which it is held as follows:
“5. Having heard the learned
counsel for the parties and having reappraised the evidence with their
assistance, we find that admittedly the occurrence took place at a public place
and according to Muhammad Umar, SIP (P.W.1), he fired 45 shots in the alleged
police encounter but surprisingly, neither during occurrence nor after the
occurrence any one from public reached the spot. The statement of the other
witness namely Akhtar Hussain, HC (P.W.2) does not improve the prosecution case
in any manner and a bare reading of the same, would show that neither in his
statement nor in that of P.W. 1 there is allegation that appellant fired at the
police party. Their statements are to the effect that after the encounter they
reached the spot and found a person lying dead, one decamped and appellant was
lying injured. Although according to the prosecution, three accused fired at
the police party but surprisingly no member of the police party was injured nor
any bullet hit police vehicle. The consistent plea of the appellant during the
trial was that there was exchange of firing between two parties and he got
injured in the cross firing. There is nothing on record to indicate that this
plea was ever investigated instead the complainant police officer himself
investigated the case. The non-production of medical evidence particularly with
regard to injury received by the appellant is a serious infirmity in the
prosecution case as in absence of that it would not be free from doubt to hold
that the appellant received the injury on account of firing by police party or
those were caused by cross firing between the two parties. Even if the
prosecution story is admitted to be true that there was firing from the side of
the accused the possibility that it was the deceased Shafoo or the absconding
accused who fired at the raiding party, could not be ruled out.”
22. We have given our due consideration to the
quantum of sentence awarded to appellants Arz Muhammad and Moar. Allegation
against these two accused is that accused Moar kidnapped boy for ransom in car
of complainant but ransom was received by accused Arz Muhammad on 19.01.2010 at
Jacobabad Road, Dera Allayhar. During captivity no harm or torture was caused
to the minor boy and sentence to death to appellants Arz Muhammad and Moar in
above circumstances of the case appears to be harsh one. In the case of SHIRAZ-UL-HAQ
versus THE STATE (2010 SCMR 646), it is held as under:
“8. We have given due consideration to the question of
reduction of sentence and find that the acquitted accused Khawaja Muhammad was
released though allegation against him was that he was providing meal to the
victim at the place of his detention. Thus it appears that he was involved in
the case but the learned trial Court gave benefit of doubt to him. The finding
of acquittal was accepted by the prosecution, as they did not prefer any appeal
to challenge his acquittal. The prosecution alleged that incident of abduction
was witnessed by P.W. Zeeshan Siddiqui he has not been examined as such on this
aspect of the case there is evidence of victim only. The ransom amount has not
been recovered from the appellants. Furthermore, the prosecution alleged that
the culprits had used the Credit and Debited Cards and lacs of rupees were
taken out from the account of the victim but no cogent evidence through any
Bank official has been produced to prove such allegation. The confinement of
the victim is of two days only with no allegation of torture. In the case of
Ansar Ahmed Khan Barki v. State 1993 SCMR 1669 this Court observed that the
accused who had succeeded in casting some doubt on the
version of prosecution case was entitled to its benefit in matter of sentence.
This Court in the case of Qasim v. State 1999 SCMR 2841 maintained the sentence
of imprisonment for life by not finding any irregularity or legal infirmity in
awarding such sentence by Courts below when 5 dacoits abducted 2 persons and
released them after seven days of receiving ransom amount. In the case of State
v. Nazir Ahmed 1999 SCMR 610 seven accused abducted a boy of 16 years and after
receiving ransom amount of Rs.3,00,000, which was secured from one of the
accused and the trial Court awarded maximum sentence of life imprisonment
(before amendment through Ordinance XIV of 1990). Two accused were acquitted.
The learned High Court, in appeal, acquitted the accused. The State preferred appeal
before this Court. The Court allowed the appeal in respect of Nazir Ahmed as he
was only present before the Court because the other accused were either dead or
absconders. The allegation against the accused was of abduction, receiving
ransom amount and its recovery as clear from para 21 of the said judgment. The
Court observed that the case was of not such where maximum sentence should be
awarded.
9. Keeping in view the above decisions, we are of the
view that this is not an extreme case of abduction, therefore,
in such a case the sentence of death to three persons appears to be harsh one.
Hence we reduce the sentence of the appellants from death to imprisonment for
life. With the said modification in the sentence, the appeals are dismissed.”
23. While
respectfully relying upon the dictum laid down by the Honourable Supreme Court
in the aforesaid case, we are of the considered view that this is not an
extreme case of abduction for ransom. Learned A.P.G. has also conceded for
reduction of death sentence to the imprisonment for life, therefore, we are of
the considered view that this is the fit case to reduce the death sentence to
imprisonment for life and death sentence awarded by trial Court vide judgment
dated 21.01.2011 to the appellants appears to be harsh one.
24. For what has
been discussed above, death sentence awarded to appellants Arz Muhammad and
Moar is reduced from death sentence to imprisonment for life. Appellants shall
be extended benefit of section 382-B, Cr.PC. Appellants Muhammad Hassan and
Irshad Ahmed by extending benefit of doubt are acquitted in Crime No.53/2010 of
P.S. Defence under section 365-A, PPC read with section 7 of the Anti-Terrorism
Act, 1997. Appellants Arz Muhammad, Moar, Muhammad Hassan and Irshad Ahmed for
above stated reason by giving benefit of doubt are acquitted in police
encounter case bearing No.11/2010, registered at P.S. Defence under section
324, 353, 34, PPC as well as in the cases under Section 13(d) of Arms
Ordinance, 1965, bearing Nos.12, 13, 14 and 15 of 2010 registered at P.S.
Defence in above mentioned special cases. Appellants Arz Muhammad, Moar,
Muhammad Hassan and Irshad Ahmed shall be released forthwith in Crime
No.11/2010 under sections 324, 353, 34 PPC of P.S. Defence and Crime Nos.12,
13, 14 and 15 of 2010 under section 13(d) of the Arms Ordinance, 1965, of P.S.
Defence.
25. Special
Criminal Anti-Terrorism Appeals Nos.3, 4 and 5 of 2011, to the extent of appellants
Irshad Ahmed and Muhammad Hassan are allowed.
Reference made by Trial Court for confirmation of death sentence to appellants
Irshad Ahmed and Muhammad Hassan is answered in negative. Appellants Irshad
Ahmed and Muhammad Hassan shall be released forthwith, if no more required in
some other case.
26. Death sentence
awarded to appellants Moar and Arz Muhammad by trial Court is reduced to
imprisonment for life. Appellant Moar and Arz Muhammad shall be entitled to
benefit of section 382-B, Cr.PC. Special Criminal Anti-Terrorism Appeal No.03
of 2011 to the extent of appellants Arz
Muhammad and Moar is dismissed,
with above modification in sentence. Reference for confirmation of death
sentence awarded to the appellants Moar and Arz Muhammad is answered in
negative.
J U D G E
J U D G E
Gulsher/PS