THE
HIGH COURT OF SINDH AT KARACHI
Special Anti-Terrorism Appeal No.26 of 2006
and
Confirmation Case
No.D-07 of 2006
Present: Sajjad Ali Shah,
J.
Naimatullah
Phulpoto, J.
Appellant: Shoukat Ali alias Baba through Mr. Fazal- ur-Rahman Awan, Advocate
Respondent: The State through Mr. Khadim Hussain Khuharo, Deputy Prosecutor General Sindh.
Date
of Hearing : 30.05.2013
J U D G M E N T
NAIMATULLAH
PHULPOTO, J.- Appellant Shoukat
Ali alias Baba along with acquitted accused was tried by learned Judge,
Anti-Terrorism Court No.V, Karachi Division Karachi
in Special Case No.11/2006, “State v. Shoukat Ali and
Others” in Crime No.88/2006 under section 365-A, PPC read with Section 7 of the
Anti-Terrorism Act, 1997 of Police Station Soldier Bazar, Karachi. After full
dressed trial vide judgment dated 16.8.2006 appellant Shoukat
Ali was convicted under section 365-A PPC read with Section 7(e) of the
Anti-Terrorism Act, 1997 and sentenced to death. It was ordered that appellant Shoukat Ali shall be hanged by neck till he is dead.
Appellant’s moveable and immovable properties were forfeited to the State.
Co-accused Mujtaba Hussain
alias Majoo son of Ghulam
Ali, Muhammad Saleem son of Muhammad Hanif and Muhammad Shahzad alias
Steel son of Allah Rakha were acquitted by the trial
Court. Learned trial Court made reference to this Court for confirmation of
death sentence awarded to accused Shoukat
Ali. State filed appeal against acquittal of accused Mujtaba
Hussain alias Majoo son of Ghulam Ali, Muhammad Saleem son
of Muhammad Hanif and Muhammad Shahzad
alias Steel son of Allah Rakha. Notices were issued to acquitted
accused but the same returned unserved as acquitted
accused were concealing themselves. By consent of counsel for the parties,
instant appeal was taken up for hearing and acquittal appeal was bifurcated, to
avoid delay. By this judgment, we would decide aforesaid appeal filed by
appellant Shoukat Ali and a reference for confirmation
made by the trial Court.
2. Brief facts
of the prosecution case as disclosed in the F.I.R. are that on 24.04.2006 at
0855 hours, the brother of the complainant namely Shabbir
Ali left home for his office situated at Gillani
Centre, Tower Karachi, but he did not reach the office nor returned home in the
evening. The family members of PW Shabbir Ali started
search for him but without any clue. On 25.04.2006 at 12:15 p.m. uncle of
complainant PW Mohsin Raza
received a call on his mobile phone No.0303-7286716 from Cell No.0300-9200715
made by PW Shabbir Ali who informed PW Mohsin Raza that he has been
kidnapped for ransom and demand of Rs.20,00,000/- has been made for his
release. It is further stated that one of the accused persons talked to PW Mohsin Raza on the cell and made
demand of ransom of Rs.20,00,000/- for the release of Shabbir Ali. It is further stated that Mohsin
Raza, the uncle of Shabbir
Ali replied to the caller that it was huge amount. Caller issued threats that
in case of non-payment of ransom dead body of Shabbir
Ali would be received by his relatives. Complainant Murtaza
Ali, brother of Shabbir Ali, went to the police
station and lodged F.I.R. of the incident on 26.04.2006 at 0235 hours. It was
recorded vide Crime No.88/2006 under section 365-A, PPC.
3. Police
started search for the recovery of the abductee. It is alleged that accused
initiated negotiations with uncle of Shabbir Ali for
his release. Finally it was agreed, that complainant party would pay cash of
Rs.4,00,000/- as ransom for the release of Shabbir Ali. On 27.04.2006, the accused persons after
receipt of ransom of Rs.4,00,000/- released Shabbir li and he returned home. Investigation Officer
recorded statement of Shabbir Ali under section 161 Cr.PC and prepared memo of the place of payment of ransom
pointed out by PW Mohsin Raza.
Such mashirnama was prepared in presence of mashirs. on 08.05.2006, accused Shoukat and Mujtaba were arrested
by the police at Young Husband road near Allah Rakha
Park, Kharadar, Karachi on the pointation
of abductee Shabbir Ali. Police secured two TT
pistols from their possession for which they had no licenses. Mashirnama of arrest and recovery was prepared in presence
of mashirs. Police lodged separate two FIRs under
section 13(d) of the Arms Ordinance, 1965, against both the accused on behalf
of State. Accused Shahzad and Saleem
were also arrested on the pointation of appellant Shoukat Ali. Such mashirnama was
also prepared in presence of mashirs. during investigation abductee Shabbir
identified Car No.AJX-213 Suzuki Alto and Car No.AFT-348 Toyota Corolla, such
identification memo of cars was prepared. One the conclusion of usual
investigation, I.O. submitted challan against the
accused under section 365-A read with section 7 of the Anti-Terrorism Act, 1997
in the Court of learned Administrative Judge, Anti-Terrorism Court, Karachi on
18.05.2006 showing above named accused in custody while name of accused
Muhammad Nisar Baloch was
placed in Column No.2 of the challan. Thereafter,
case was made over to learned Judge, Anti-Terrorism Court No.V,
Karachi for disposal according to law.
4. A formal
charge against accused Shoukat Ali, Mujtaba Hussain, Muhammad Saleem and Muhammad Shahzad was
framed at Exh-3 under section 365-A/34 PPC and 7(e) of the Anti-Terrorism Act,
1997 accused met the charge with denial and claimed to be tried.
5. At the trial,
prosecution examined PW-1 Murtaza Ali, who produced
F.I.R. Exh-9, PW-2 Muhammad Moin Khan, who produced
memo of place of confinement Exh-11, PW-3 PC Fareed
Ahmed, who produced memo of audio cassette and mobile telephone data as Exh-13,
data of mobile phone as Exh-14, memo of arrest of accused Shahzad
as Exh-15, memo of arrest of accused Muhammad Slaeem
as Exh-16, PW-4 Naseem, PW-5 Salman Siddiq, who produced carbon copies of Sada
Bahar Rent A Car Ex.19 and 20, seizure memo of
vehicles Exh-21, PW-6 Mohsin Raza,
who produced memo of place of payment of ransom Exh-23 and notice from AVCC for
identification Exh-24, PW-7 Ms. Shazia Asif, Civil Judge and Judicial Magistrate East, who
produced copy of application for holding identification parade as Exh-26,
objection of advocate for accused Shoukat as Exh-27,
statement of IO about date of arrest of accused as Exh-28, memo of
identification parade Exh.29, PW-8 S. Salman Ahmed who produced copy of
application of I.O. for cassette and mobile data Exh.32, PW-9 Shabbir Ali, who produced copy of note of Rs.5 as Exh.34,
memo of place of abduction Exh.35, memo of place of release as Exh.36, memo of
arrest of accused and recovery of weapons as Exh.37, notice for identification
parade as Exh.38, memo of identification of cars used in Crime as Exh.39, PW-10
Tahir Naseer, I.O., who
produced order entrusting investigation to him by SSP Investigation-I, Karachi
as Exh-41, cassettes recording Exh-42, notices for identification served upon
accused as Exh-43, 44 and 45, PW-11 SIP Khan Nawaz statement of prosecutor for
closing side as Exh-47, CW Atiqur Rahman,
who produced letter as Exh-C/1 and data of mobile
phone 0300-9200715 as Exh-C/2.
6. Statements of
accused (1) Mujtaba Hussain,
(2) Muhammad Shahzad, (3) Muhammad Saleem and (4) Shoukat Ali under
section 342 Cr.PC were recorded at Exh-48 to 51.
Appellant Shoukat Ali has denied the prosecution
allegations and stated that prosecution case is false. He has denied the
receipt of ransom for the release of abductee Shabbir
Ali. Appellant Shoukat Ali has also denied the data
of mobile used by him for demanding the ransom and cassette containing the
conversation. He has also denied his arrest and recovery of unlicensed pistol.
He has further denied the arrest of co-accused Muhammad Shahzad,
on his pointation during interrogation. Appellant Shoukat Ali has stated that he was identified by PW Mohsin Raza as he was shown to said PW before identification parade held by the Civil Judge
and Judicial Magistrate on 11.05.2006. He has further stated that PWs have
deposed against him falsely and they are interested persons. In a question,
what else he has to say? Appellant Shoukat Ali
replied that he was picked up from his house and brought at AVCC where
co-accused were already there and he did not know them. Other prosecution
allegations have also been denied by appellant Shoukat
Ali in his statement recorded under section 342 Cr.PC
Appellant Shoukat Ali did not examine himself on oath
in disproof of prosecution allegations. No evidence in defence
has been led.
7. On the
conclusion of the prosecution evidence, trial Court after assessment of the
evidence convicted the appellant Shoukat Ali as
stated above and acquitted co-accused by judgment dated 16.08.2006.
8. In order to
ascertain whether trial Court has appreciated the evidence in respect of
appellant Shoukat Ali in accordance with settled
principles of law, we have scanned the entire evidence brought on record by the
prosecution.
9. Complainant Murtaza Ali has stated that abductee Shabbir
Ali is his brother. He is in private service, run by his uncle PW Mohsin Raza and his office is
situated at Jillani Centre Tower, Karachi. On 24.04.2006,
his brother Shabbir Ali left house at 09:00 a.m. but
did not reach office nor returned home till night. Thereafter, complainant
started search for his brother through the relatives and friends but without
any clue. On 25.04.2006 at 12:15 p.m. his uncle Mohsin
Raza received a call from his brother Shabbir and informed PW Mohsin Raza that he has been kidnapped for ransom and demand of
Rs.20,00,000/- has been made. Complainant has stated
that a number of calls were received from the accused for ransom and threat was
issued that in case of non-payment, abductee Shabbir Ali
would be murdered. On 26.04.2006 at 02:00 am he went to police station and
lodged F.I.R. regarding kidnapping for ransom of his brother Shabbir Ali. He has produced F.I.R. as Exh.9. In the
cross-examination to advocate for accused Shoukat Ali
complainant has replied that he was not present when his uncle received a
mobile call from culprits for demand of the ransom. Complainant has denied the
suggestion that Shabbir Ali was never kidnapped.
10. PW-6 Mohsin Raza has deposed that he
runs an agency situated at Jillani Centre, Tower
Karachi. His nephew Shabbir Ali and some other
persons work with him in his office. On 24.04.2006, his nephew Shabbir Ali did not reach to his office till evening and he
went to the home and enquired about Shabbir Ali. He
was informed that Shabbir had left the house for his
office at morning time and did not return back thereafter he has deposed that
search for Shabbir Ali was made, on 25.04.2006 at
12:15 p.m. he received call on his mobile phone No.0303-7286716 from Cell
No.0300-9200715 from his nephew Shabbir Ali who
informed him that he has been kidnapped for ransom and culprits have made demand
of Rs.20,00,000/-. PW Mohsin
Raza has stated that one of the culprits also talked
to him on the mobile for ransom and he replied him that it was huge amount. On
26.04.2006, Rs.4,00,000/- were to be paid as ransom
for the release of Shabbir Ali. Accused directed PW Mohsin Raza to bring the ransom
amount at Taj Peshawari
Hotel, Kharadar. He went to the said hotel by taking
ransom amount. Accused gave
him a call on cell and asked him to reach at Moosa
Lane and put the ransom there. After sometime again call was received by PW Mohsin Raza that Agencies were
watching them, they would not be able to pick up the ransom amount. Thereafter,
bag of ransom was taken by Mohsin Raza
from there and kept waiting for another call. He received a call and he was
directed by the culprits to reach at Burns Road. He went there with ransom
amount. Accused persons called him and said to reach at Dilpasand
Sweets, M.A. Jinnah Road, Karachi at footpath and put the ransom amount in the
iron enclosure around a tree. PW Mohsin Raza did what he was asked. After keeping the ransom, he
sat on a chair at Dilpasand Sweets. After some time,
a boy wearing pant-shirt appeared and took the bag of ransom of Rs.4,00,000/-, crossed the road and went away. Thereafter, call
was made to Mohsin Raza made
by the accused persons that ransom has been received by them and Shabbir Ali would soon return home. He has further stated
that his nephew Shabbir Ali returned home. He has
further stated that he had pointed out the place to SIP Tahir
Naseer from where appellant Shoukat
Ali had taken ransom near Dilpasand Sweets. Such mashirnama was prepared in present of mashirs.
He produced it as Exh-23. His statement was also recorded. He informed CPLC
about the kidnapping of his nephew Shabbir Ali for
ransom. He has further stated that he had handed over cassette containing
conversation with the accused persons to the CPLC on 27.04.2006. PW Mohsin Raza clearly stated that
accused Shoukat Ali had taken away bag containing
ransom amount of Rs.4,00,000/- from iron enclosure
situated at M.A. Jinnah Road, opposite Dilpasand
Sweets. He has further stated that on 11.05.2006 he received notice that
identification parade of accused would be held by the Magistrate on 13.05.2006.
He went to the said Court where identification parade was held before Judicial
Magistrate. Twelve persons were standing in a queue including appellant Shoukat Ali. He picked up accused Shoukat
Ali in the identification parade and could not identify the remaining culprits.
In the cross-examination to learned counsel for the appellant Shoukat Ali, he replied that he did not go to AVCC on
25.04.2006. He has replied that his statement was recorded on 27.04.2006. He
has admitted that he is not voice expert. Complainant has denied the suggestion
that he was deposing falsely against the accused Shoukat.
11. PW Shabbir Ali is star witness of the case. He has stated that
he is working in a shipping company. His office is situated at Jillani Tower, Karachi. Company is run by his uncle Mohsin Raza. On 24.04.2006 as
usual he left his house for duty and reached at Soldier Bazar near bus stop
No.2 at about 09:05 a.m. he received a telephonic call from his office, after
finishing the call of his office colleague, he saw that one Alto Car stopped
near him in which four accused persons were sitting. Out of them, two culprits
alighted from the car and one of them had a pistol and introduced himself
official of CIA and asked Shabbir Ali to accompany
them to CIA office as he has been called by Incharge
of CIA. Forcibly he was made to sit on the rate seat of the car and both the
accused persons sat with him on rare seat and drove the car fast towards Gurumandar. Culprits directed him to bow his head and keep
quiet. They snatched purse, mobile phone and keys. Car was stopped after half
an hour journey in front of a house. All the culprits alighted from the car. Shabbir Ali was also directed to get down from the car and
he was taken to the upper storey of the house where
there was store type room where a lady and child were present. Shabbir Ali was made to sit in the said room. After
sometime, one of the accused informed him that he has been kidnapped for
ransom. Shabbir Ali replied to the culprits that his
family could arrange only Rs.1,00,000/- then he was
mentally tortured. Two accused persons guarded over him at night time in the
same house. On 25.04.2006 remaining two accused persons namely Mujtaba and Saleem came to the
house where Shabbir Ali was detained and directed him
to call his father to make arrangement of Rs.20,00,000/-
ransom. He informed the culprits that his father was sick and patient of blood
pressure. Then he talked from his cell No.0300-9200715 to uncle Mohsin Raza on his Cell
No.0303-7286716 and informed him that he has been kidnapped for ransom and
culprits were demanding Rs.20,00,000/- for his release. He has further deposed
that accused Shoukat Ali also talked to his uncle Mohsin Raza and his uncle replied
that it was huge amount and same could not be arranged by them. Thereafter,
accused demanded Rs.15,00,000/- for the release of Shabbir Ali. He has further stated that his uncle replied
that they would try to arrange such amount. He stated that deal was finalized
between accused and his uncle in Rs.4,00,000/- for his release on 26.04.2006 his uncle informed
that he has made arrangement of Rs.4,00,000/- and enquired from the accused
that where the amount was to be paid to them. After sometime, two accused left
the place and two accused remained with Shabbir Ali. In
evening time, accused informed on telephone to accused Shahzad
and Saleem that they have not received the ransom
amount because there were some Agency persons standing over there, they could
not collect the ransom amount. Further he deposed that accused Shahzad and Saleem tied the hands
and feet of Shabbir Ali and put him in a store. In
the evening time, accused Shoukat Ali and Mujtaba came back and asked Shabbir
Ali to call his uncle to make the payment else he would be murdered. Between
the night of 26 and 27.04.2006 all the four accused took him in a black coloured Toyota car and came to Lea Market area where they
handed over him to another person who took him in his house where family was
there. All the accused persons left that place. He remained in the said house
for whole night. On 27.04.2006 at 08:30 a.m. accused Mujtaba
and Shoukat Ali came there and informed that they
have received the ransom and they were going to release Shabbir
Ali. Accused persons released Shabbir Ali by giving
him cash of Rs.500/- and dropped him in garden area. He was also given 5 rupees
note on which mobile number was written. Shabbir Ali
was directed that when he would reach home, he should inform the accused on
mobile No.0334-3298677. Complainant came home and informed the accused that he
had reached home. In the evening time, Shabbir Ali
was informed by his uncle that he has paid Rs.4,00,000/-
for his release on 27.04.2006 at 05:00 p.m. I.O. came to his house and he
narrated him the facts. He also pointed out the place from where he was
kidnapped. I.O. prepared such mashirnama on his pointation in presence of mashirs
and produced it as Exh-35. At 06:00 p.m. he had also pointed out the place to
the I.O. where he was released. Such mashirnama was
also prepared in presence of mashirs which produced
as Exh-36. He has further stated that his 161 Cr.PC
statement was recorded by I.O. On 08.05.2006 he received a call from I.O. who
asked him to reach at AVCC. He went there at 02:00 p.m. where SIP Tahir Naseer along with his
subordinate staff took Shabbir Ali in the police
mobile for the search of accused persons involved in the offence and proceeded
from Garden to Lea Market, Mithadar and reached Kharadar at Young Husband Road where he has deposed that
there was a wooden bench in the Allah Rakha Park on
which accused Mujtaba and Shoukat
Ali were sitting. Shabbir Ali identified them and
pointed out to the I.O. that they were involved in is kidnapping for ransom.
I.O. arrested both the accused in presence of mashirs,
conducted their personal search. From the search of accused Shoukat
Ali TT pistol containing three live bullets and cash of Rs.140/- were
recovered. Shaukat Ali had no license for the weapon
carried by him. From the personal search of accused Mujtaba
one TT pistol containing four live bullets and cash of Rs.120/- were recovered.
I.O. enquired the names from both the culprits and they disclosed the same
names as pointed out by PW Shabbir Ali. Both the
accused had no licenses for the weapons carried by them. Mashirnama
was prepared in presence of mashirs. He has produced
such mashirnama as Exh-37. On 11.05.2006 I.O. went to
the house of Shabbir Ali and served notice upon him
regarding holding of identification parade before Magistrate on 13.05.2006. On
13.05.2006 Shabbir Ali appeared before Civil Judge
and Judicial Magistrate along with his uncle Mohsin Raza where identification parade was held by Civil Judge
and Judicial Magistrate. PW Shabbir Ali identified
accused Shoukat Ali, Shahzad
and Saleem. PW Shabbir Ali
has stated that on 24.04.2006 he was kidnapped by accused Shahzad
and Saleem by show of weapons whereas accused Mujtaba and Shoukat Ali were
sitting in the car at that time. In the cross-examination to Mr. Fazal-ur-Rahman Awan, Advocate
for accused Shoukat Ali he has denied the suggestion
that he had made drama to get money from his uncle. He has admitted that I.O.
did not call private persons to act as mashirs in
this case. He has denied the suggestion that he was deposing falsely.
12. Ms. Shazia Asif, Civil Judge and
Judicial Magistrate East, Karachi has deposed that on 11.05.2006 I.O. of this
case produced before her an application for holding the identification parade
of accused in this case. After observing legal formalities, she held
identification parade of accused Shoukat Ali,
Muhammad Shahzad and Muhammad Saleem
through PWs Mohsin Raza and
Shabbir Ali. PW Shabbir Ali
identified accused Muhammad Shahzad, Shoukat Ali and Muhammad Saleem.
She has further deposed that PW Mohsin Raza identified accused Shoukat
Ali. Memo of identification parade was prepared in presence of mashirs. In the cross-examination to Advocate for Shoukat Ali, Magistrate has replied that PW Shabbir Ali informed her that he had seen accused Shoukat Ali at police station. Magistrate had denied the
suggestion that some of dummies were police officials in plain clothes. She has
also denied the suggestion that accused were not
produced with muffled faces at the time of identification parade.
13. Tahir Naseer, I.O. has deposed
that he had conducted investigation of the case. In cross-examination, denied
suggestion for deposing falsely against the accused. CW Atiq-ur-Rahman
has stated that he serves in Mobilink Company and
produced data of Cell No.03009200715 from 24.04.2006 to 28.04.2006.
14. Mr. Fazal-ur-Rahman Awan, learned
counsel for the appellant Shoukat Ali argued that
there was delay in lodging of F.I.R. for which no explanation has been
furnished; there was also delay in holding the identification parade. Appellant
Shoukat was shown to witnesses at police station
before identification parade. It is further contended that there was no
reliable evidence that ransom amount was collected by appellant Shoukat Ali from the place in front of Dilpasand
Sweets. It is submitted that there are major contradictions in the evidence of
prosecution witnesses on so many material points and on same set of evidence
co-accused have been acquitted, case of prosecution is doubtful. Lastly, it is
submitted that in absence of strong reasons death sentence has been awarded to
the appellant by the trial Court and it was unwarranted in the law. In support
of his contentions, he relied upon case of Tariq Parvez
versus the State (1995 SCMR 1345) and Dr. Muhammad Abrar
Vs. the State (SBLR 2010 Sindh 816 ).
15. Mr. Khadim Hussain Khuharo, learned Deputy Prosecutor General Sindh appearing
for the State argued that PW Shabbir Ali who was
kidnapped for ransom he has fully implicated appellant Shoukat
Ali in the commission of offence; PW Mohsin Raza has also involved the appellant Shoukat
Ali that he took ransom opposite Dilpasand Sweets.
Both the prosecution witnesses have picked up appellant Shoukat
Ali in the identification parade; place of kidnapping for ransom was also
pointed out by PW Shabbir Ali and place of ransom was
also indicated by prosecution witness. Evidence of PW Shabbir
Ali who was in the captivity of appellant Shoukat Ali
and others was trustworthy. It is argued that trial Court rightly appreciated
the evidence brought on record and for the sound reasons convicted and
sentenced appellant Shoukat Ali.
16. Record
reflects that Learned trial Court acquitted the co-accused Muhammad Saleem son Muhammad Hanif,
Muhammad Shahzad alias Steel son of Allah Rakha and Mujtaba Hussain alias Majoo son of Ghulam Ali on the same set of evidence, relevant portion of
the judgment dated 16.08.2006 is reproduced as under:-
“As far as the case against accused
Muhammad Saleem, Muhammad Shahzad
and Mujtaba Hussain are
concerned, the only allegations against them which was categorically mentioned
by the abductee is that they were with accused Shoukat
in the car at the time of incident but subsequently they remain disappeared
from the scene except on the night of 26.04.2006 when accused Muhammad Shahzad stated to be also stayed with him in a house which
was occupied by family of accused Shoukat. Even it is
presumed to be correct then a night is enough to recognize a person’s case but
his statement before the police is silent about the features of accused which
is essential to lead to assure that accused Muhammad Shahzad
was also present there. Accused Muhammad Saleem and
Muhammad Shahzad in their statements u/s 342 Cr.PC claimed animosity with the I.O. and stated that since
they were working for the AVCC as informer and on objection raised by the mohalla people for the usual visits of the I.O., they
stopped working for him, hence they were threatened for dire consequences as
such, they were falsely implicated by the I.O. in repercussion. The only
evidencing material against accused Mujtaba Hussain is receipts of Rent-a-Car for obtaining respective
cars on rent which were allegedly used in the occurrence.
On perusal of record, it became
crystal clear that the receipts of Rent-A-Car were not signed by authorized
person and that Toyota Corolla which was allegedly taken by accused Mujtaba Hussain is also doubtful
as the registration number mentioned in Statement u/s 161 Cr.PC
is different than the number given during statement before the Court. The
crucial thing which creates doubt regarding both the cars obtained on rent by
accused Mujtaba Hussain
allegedly involved in the offence is that neither the abductee has mentioned
the numbers of cars nor any specific mark for which those can be identified
easily. Such fact was also admitted by the abductee during the
cross-examination. It is also admitted by the abductee in his cross that I.O.
called him at AVCC and said that the cars kept there are used during his
abduction which he identified to be the same.
The above admission of the abductee
creates doubt in respect of the guilt of accused Mujtaba
Hussain for allegedly getting cars on rent.
The sum up of the above discussion is
that the prosecution has failed to bring home charge against accused Muhammad Saleem, Muhammad Shahzad alias
Steel and Mujtaba Hussain
alias Majoo as the lacunas left creates serious
doubts which cannot be said to be minor discrepancies and the benefit of doubt
always goes to the accused.
In
case reported as 1997 PCrLJ 1 it has been held by the
Apex Court that the prosecution has to stand squarely on its own legs and has
to be proved beyond all reasonable doubts, the case of defence
as to be accepted even if it is only probable and not proved beyond doubt (Italic and bold is mine).
In
a case reported as PLD 2006 (K) it has been held Benefit of doubt anything
going in favour of accused must be taken into
consideration and the benefit of doubt, if any, be extended to him not as a
matter of grace but as a matter of right (Italic and bold is mine).
As far as the case against accused Shoukat Ali alias Baba is concerned, record shows his
presence on each and every occasion of the incident. The star witness of the
case is Shabbir Ali, the abductee, who has identified
the accused Shoukat Ali to be accused playing pivotal
role in is abduction. It is stated by the abductee in his Examination-in-Chief
that he was kept in house where accused Shoukat Ali
remained present, so also he is the accused who called his uncle PW Mohsin Raza. PW-4 Syed Naseem stated to be the owner of the house where abductee
was kept, stated that such house bearing No.B-340 situated was rented out to accused Shoukat Ali.
Furthermore, the I.O. has prepared
memo of identification of place of captivity which is the same. The statement of
abductee in respect of involvement of accused Shoukat
Ali is also supported by PW Mohsin Raza who has said to have paid the ransom amount. Mohsin Raza in is statement
attributed the role to accused Shoukat Ali to be the
same who after call taken the ransom amount. No enmity with police or I.O. has
shown by accused, even not a single word was uttered to be believed that he has
falsely been involved, hence I am of the view that there is no reason to
believe that he has falsely been involved letting off the actual accused.
Reference is made to the case of Ali Akbar Shah versus the State (1999 MLD
488).
In
case reported as 1999 MLD where the Honourable High
Court held that the abductee had not only deposed about abduction, but had
categorically fully implicated the accused assigning them the roles played by
them during occurrence. Release of abductee on payment of ransom amount was
also proved. (Italic
and bold is mine).
In view of the discussion made herein
above the points No.1 to 4 are answered in affirmative in respect of the
involvement of accused Shoukat Ali alias Baba son of
Muhammad Ali whereas the same are answered in negative in respect of the
involvement of accused Muhammad Slaeem son of
Muhammad Hanif, Muhammad Shahzad
alias Steel son of Allah Rakha and MUjataba Hussain alias Majoo son of Ghulam Ali.
In view of the above discussion, I
reached to the conclusion that the case against accused Muhammad Saleem son Muhammad Hanif,
Muhammad Shahzad alias Steel son of Allah Rakha and Mujtaba Hussain alias Majoo son of Ghulam Ali are full of doubts and prosecution has miserably
failed to prove case against them beyond any reasonable doubt. Therefore, are
acquitted under section 265-H(1) Cr.PC
from the charge of present case giving them benefit of doubt, they may be
released forthwith if not required in any other case.
In view of what has been discussed
herein above, I reached to the conclusion that the prosecution has proved its
case as against accused Shoukat Ali alias Baba son of
Muhammad Ali, now I come to the very crucial point as to which offence has been
committed and quantum of sentence to be awarded. I, therefore, convict the
accused Shoukat Ali alias Baba son of Muhammad Ali
u/s 265-H(2) Cr.PC for the offence punishable u/s
7(e) of the Anti-Terrorism Act, 1997 r/w section 365-A PPC and awarded him
death sentence and his moveable/immoveable properties be forfeited to the
Government of Pakistan. He shall be handed by neck till he is dead.”
17. The aforesaid
narration of the evidence and acquittal of co-accused by trial Court on same
set of evidence make it clear that there are many circumstances in this case,
which create reasonable doubt in the prosecution case. Evidence of star witness
Shabbir Ali appears to be unbelievable for the
reasons that he had deposed that on 24.04.2006 at 0830 hours accused Mujtaba and Shoukat came and
informed him that they have received the ransom and he was dropped in a Toyota
Corolla car by giving him cash of Rs.500/- and on the currency note of Rs.5/-
mobile number of appellants was given to him for informing the culprits at the
time of reaching home. Abductee has stated that on 08.05.2006 he received a
call from I.O., who asked him to reach at AVCC. He reached there at 02.00 pm
and left with SIP Tahir Naseer
in search of accused persons. When they reached at Kharadar,
there was Allah Rakha Park, accused Mujtaba and Shoukat were sitting
there. They were arrested by the I.O. in presence of mashirs
and from the possession of accused Mujtaba and Shoukat, T.T. pistols containing live bullets were
recovered.
18. Hardly a
prudent mind would accept such evidence of abductee that the persons involved
in kidnapping for ransom, armed with T.T. pistols without any resistance or
firing would be easily arrested. Moreover, it is unbelievable that wanted
accused were waiting on the bench at relevant time just for their arrest. After
arrest of accused on 08.05.2006 accused Shoukat,
Muhammad Shahzad and Muhammad Saleem
were put to identification parade, who were identified
by the appellant. Civil Judge/Judicial Magistrate in her cross-examination has
admitted that PW Shabbir informed her that he had
already seen accused Shoukat at police station, his
so-called identification, in identification parade could not be of any avail to
prosecution and it was meaningless. No reliance can be placed on such
identification parade. Evidence of PW Mohsin Raza is also not trustworthy, he had deposed that he put
the bag containing Rs.400,000/- under the tree
surrounded by iron enclosure in front of Dilpasand
Sweets and accused Shoukat took the same. He has not
brought on the record the reason as to why he did not inform the concerned
police about the time and place of payment of ransom. Several telephonic
conversations between accused and PW Mohsin Raza regarding payment of ransom were made with mobile
telephone set but prosecution did not choose to have this primary corroborative
evidence established in Court by not playing audio cassette and by not
obtaining Expert’s opinion on it. The corroborative evidence is meant to test
the veracity of oral evidence and both are required to be read together and not
in isolation and if such primary corroborative piece of evidence is not
produced in Court, the only inference that can be drawn from it would be that
had the audio cassette been played in the Court it would have not supported the
prosecution story. The prosecution had failed to prove the case of abduction,
demand and payment of the ransom beyond reasonable doubt. Material
contradictions in the evidence of prosecution witnesses have also been pointed
out on so many material points, including place of captivity, prosecution has
no reply to explain the same. Co-accused, namely, Muhammad Saleem
son Muhammad Hanif, Muhammad Shahzad
alias Steel son of Allah Rakha and Mujtaba Hussain alias Majoo son of Ghulam Ali, on
similar evidence have also been acquitted, thus, appellant is entitled to the
benefit of doubt. For giving the benefit of doubt it is not necessary that
there should be many circumstances creating doubt, a single circumstance,
creating reasonable doubt in the prudent mind about the guilt of accused makes
him entitle to benefit of doubt, not as a matter of grace but as a matter of
right. Case against appellant is full of doubts. Reliance is placed upon the
case of Tariq Parvez versus the State (1995 SCMR
1345) and Dr. Muhammad Abrar Vs.
the State (SBLR 2010 Sindh 816).
19. In the view of
above discussion we are satisfied that prosecution has miserably failed to prove
the case of abduction of PW Shabbir Ali and payment
of ransom to appellant Shoukat, as such, appellant Shoukat is entitled for grant of benefit of doubt. We,
therefore, while extending benefit of doubt allow this appeal, set aside the
impugned judgment dated 16.08.2006, recorded against appellant Shoukat, he shall be released forthwith, if not required in
any other case.
20. Reference for
confirmation of death sentence awarded to appellant Shoukat
made by the trial Court is answered in negative.
21. Both appeals
in the above stated terms are accordingly disposed of.
JUDGE
JUDGE
Dated: ______
2013
Gulsher/PA