HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeals Nos.11, 16 and 18 of 2008

and Confirmation Case No.02 of 2008

Present: Sajjad Ali Shah, J.

Naimatullah Phulpoto, J.

Appellants: Muhammad Sohail Javed through Mr. Mushtaq Ahmed, Advocate

Mst. Zainab through Khawaja Naveed Ahmed, Advocate.

Respondent: The State through Mr. Khadim Hussain Khuharo, Deputy Prosecutor General Sindh. -------------------------------

Date of hearing: 07.05.2013

Date of announcement: __.05.2013

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JUDGMENT

NAIMATULLAH PHULPOTO, J:- This judgment will dispose of Criminal A.T.A. Nos. 11, 16 & 18 of 2008 and confirmation Case No.02 of 2008, as they all arise out of common judgment.

2. Brief facts giving rise to the present appeal are that on 06.09.2007 at 2100 hours complainant Muhammad Nadeem lodged F.I.R. at P.S. City Court Karachi alleging therein that his brother Muhammad Naveed (now deceased) was running business of chemical in Jodia Bazar and one Obaid was also working with him in his office. Complainant Muhammad Nadeem, brother of deceased, has stated that on 03.09.2007 at 12.30 p.m. his deceased brother left his house in his car bearing registration No.AMC-023, silver colour, Toyota Vitz for his office. On the same day at 3.45 p.m. he talked with his brother Muhammad Naveed on telephone, at that time he had reached near his office situated in Jodia Bazar. At about 8.00 or 8.15 p.m. his father telephoned the complainant, at that time he was present in Kharadar, his father was disturbed and informed him that somebody has kidnapped Muhammad Naveed and he was asked to immediately reach to the father. Complainant Muhammad Nadeem went to his father at Gulbai, where his father informed him that he has received a telephone call from unknown caller and stated that his son Muhammad Naveed was in the captivity of the caller, Naveed was also allowed to talk to the father. Caller demanded 8 crores for the release of Naveed else threat was issued that Naveed would be shifted to the interior Sindh and his dead body would be thrown in front of house of the father. Thereafter, telephone call was disconnected. Complainant started search for his brother and were waiting for the next call. On 06.09.2007 at 3/4 p.m. a call was received by one Iqbal Khatri at stock exchange from his son Muhammad Suleman who was friend of deceased brother of complainant, who informed the father of the complainant that vehicle of the deceased has been found parked at P.S. Gulistan-e-Johar at Alladin Park. Thereafter, complainant went to the P.S. City Court and lodged F.I.R, which was recorded vide Crime No.95/2007 on 06.09.2007 at 2100 hours, under Section 365-A P.P.C.

3. A.S.I. Haji Iqbal Ahmed of P.S. Gulistan-e-Johar recovered vehicle bearing No.AMC-023, under Section 550 Cr.P.C. on 05.09.2007 near Alladin Parking area in presence of mashirs and found blood at the rare seat of the car and prepared such mashirnama. SIP Sultan Ahmed Sahito of P.S. Malir Cantt received information through one Riaz on 04.09.2007 at 10.15 a.m. that a dead body was lying near graveyard Rahman Town Road, Malir Cantt. Karachi. He made such entry in roznamcha and proceeded to the pointed place and recovered dead body, prepared memo regarding inspection of dead body and inspection of place of vardhat, in presence of mashirs and took photographs of the dead body and issued letter to the Medical Officer for ascertaining cause of death of deceased. After postmortem examination, clothes of the deceased were sealed by him and dead body was shifted to the Edhi Cold Storage Sohrab Goth and he lodged F.I.R. on behalf of State vide Crime No.57/2007, under Section 302 P.P.C. and supplied its copy to the SIO P.S. Malir Cantt. for investigation.

4. SIP Ameer Gul Khattak, after receipt of the F.I.R. bearing Crime No.57/2007, under Section 302 P.P.C., got published a news of recovery of the dead body in the newspapers for the purpose of search of the legal heirs of the deceased. On 22.09.2007 he was present at P.S. one Muhammad Anwar and Iqbal appeared at P.S. and showed photographs of deceased Naveed to S.I. Ameer Gul. Photographs were taken by SIO Sultan Ahmed and it was confirmed that deceased was Naveed. He recorded statement under Section 161 Cr.P.C. of P.Ws. and sent case property to the Chemical Examiner Karachi. Telephone data of mobile phone used by deceased and appellants/accused were collected during investigation. Appellants were arrested on 26.10.2007 in presence of the mashirs, incriminating pieces of the evidence were collected against them. During investigation appellants namely Muhammad Sohail Javaid and Ms. Zainab made judicial confession before Civil Judge & Judicial Magistrate Karachi South.

5. On the conclusion of the investigation challan was submitted against the appellants Muhammad Sohail Javaid and Ms. Zainab, under Section 302, 365-A, 34 P.P.C., accused namely Asif was shown as absconder in the challan sheet. N.B.Ws. were issued against absconding accused, which returned unexecuted. Statement of process server was recorded. Case was ordered to proceed against accused Asif under section 512 Cr.PC. Proceedings under Section 87 & 88 Cr.P.C. were concluded against the absconding accused and he was declared as proclaimed offender.

6. Charge against the appellants / accused Muhammad Sohail Javaid and Ms. Zainab was framed at Ex-3 under Sections 302/34 P.P.C., 6(2)(a)(b)(e) & (1)(b) punishable under Section 7(a)(b)(e) & 7(i) of the Anti-Terrorism Act, 1997, to which appellants / accused pleaded not guilty and claimed to be tried.

7. In order to substantiate the charge, prosecution has examined P.Ws. 1. SIP Muhammad Iqbal Khokhar (Ex.6), A.S.I. Haji Iqbal Ahmed Yousufzai (Ex.8), A.S.I. Ghulam Akbar Shar (Ex.10), SIP Sultan Ahmed Sahito (Ex.11), SIP Ameer Gul Khattak (Ex.20), MLO Abdul Razzak Shaikh (Ex.24), P.C. Hassan Raza Syed (Ex.26), P.C. M. Rashid Sheikh (Ex.29), H.C. Banaras Khan Tanoli (Ex.31), Nusarat Ali Memon (Ex.33), Muhammad Nadeem Memon (Ex.34), Muhammad Zakaria Memon (Ex.36) Asif Ahmed Memon (Ex.37), Muhammad Iqbal Katchi Khatri (Ex.42), Sardar Muhammad Yousufzai (Ex.43) and Tahir Naseer Malik (Ex.48).

8. Statements of appellants/accused Mohammad Sohail Javed and Mst. Zainab were recorded under section 342 Cr.P.C at Ex. 55 and 56. Both the appellants denied the prosecution allegations and stated that they had not kidnapped Mohammad Naveed for ransom. Both appellants denied the judicial confession made by them and stated that they were maltreated before recording of the confessional statements. Regarding Chemical Examiner, both the appellants stated that they have no knowledge regarding such report. Appellants have stated that P.Ws have deposed against them at the instance of the I/O. Replying to the question what else they have to say, appellant Sohail has stated that he is a poor person and supporter of the family. Police had let off real culprits Nusrat and Ilyas and falsely involved him in this case. Mst. Zainab pleaded innocence and stated that she along with her mother and three sisters was detained at AVCC and police pressurized her for confessional statement. She has also raised the plea that police has let off real culprits of the incident and she has been falsely involved in this case. Both appellants denied all other incriminating pieces of evidence brought on record against them at trial.

9. We have carefully heard learned counsel for the parties and perused the entire evidence available on record.

10. In order to prove unnatural death of Mohammad Naveed, prosecution has examined Dr. Abdul Razzak. He has stated that on 04.09.2007, SIP Sultan Ahmed of PS Malir Cantt. brought a dead body of unknown person at JPMC, Karachi for conducting postmortem examination and report. He started postmortem examination at 1:45 PM and completed at 2:30 PM. Medical officer found that dead body was of a male Muslim aged about 25 to 28 years. Clothes of the deceased were blood stained, no sign of decomposition was found, general features were identifiable.

On external examination Medical officer found following injuries:-

1. Incise wound 14 cm x 2 cm mid of kneck towards both sides structural deep.

2. Contusion 3cm x 2 cm left elbow.

3. Contusion 2cm x 1 cm right elbow.

4. Abrision 1 cm x .2 cm right eyebrow.

5. Abrison 1 cm x .2 cm near right side of the nose.

6. Contused abrasion 20 cm back of right chest and abdomen.

Injuries No.1 to 5 were anti mortem and No.6 was post mortem.

Internal Examination

Head Skull bone intact.

Kneck Incise wound 14 cm x 2 cm from mid of neck towards right and left side, structure damage thyroid cartilage, both caroted vessels, trycia and hyoid bone cut. Clotted developed seen.

Thorax Thorax ribs normal. Heart and lunge normal inside and shade. Clotted blood seen in bronchioles.

Abdomen On opening abdomen cavity stomach contains water and digestive material. Liver, spleen and kidneys were normal in size and shape. Urinary bladder contains 20 cc of urine.

11. According to the opinion of Medical officer, death of deceased had occurred due to Cardio respiratory failure in the result of shock and hemorrhage resulting from injuries caused by sharp edged weapon. Vescras were taken for chemical analysis. Medical officer produced postmortem report at Ex. 25. In the cross-examination Medical officer has replied that he has not mentioned that which injury resulted death of deceased. He has denied the suggestion that he had not sealed clothes of the deceased. Unnatural death of deceased has been denied by defence counsel.

12. From the evidence of the Medical officer, prosecution has established that deceased died his unnatural death as described by medical officer.

13. In order to substantiate the charge, the prosecution has examined and relied upon the evidence of following witnesses.

14. P.W-1 SIP Mohammad Iqbal at Ex.6. He has stated that on 06.09.2007, he was posted as S.I at P.S City Court. At 9:00 PM, complainant Mohammad Nadeem appeared at P.S for lodging his report regarding kidnapping for ransom of his brother Mohammad Naveed son of Mohammad Zakaria. He lodged FIR of the complainant vide Crime No.95/2007 u/s 365-A PPC.

15. P.W-2 ASI Haji Iqbal Ahmed has stated that on 05.09.2007 at 4:30 PM. He went to Allaudin Park within the territorial jurisdiction of P.S Gulistan-e-Johar, where one Jameel supervisor of Aladin Park informed him that one Toyota Vitz Car has been parked in the parking area since last night it was unattended. Thereafter, he went to the pointed place in police mobile and searched the car and found some blood drops at the rear seat, its Registration number was AMC-023 Silver color. ASI Akber Sher, who was called by ASI Haji Iqbal, seized the car under Section 550 Cr.P.C. He was made mashir. Such mashirnama was prepared. Co-mashir was PC Shahid Aziz.

16. P.W-3 ASI Ghulam Akbar has stated that on 05.09.2007, he was performing his duty at Gulistan-e-Johar P.S. It was 4:30 PM, during patrolling he reached at Abdullah Heights, where he received a call from ASI Haji Iqbal that one car has been parked since last night at Allauddin Park. On such information, he proceeded there and checked the car and found blood spots on the rear seat of the car. He seized it u/s 550 Cr.P.C.

17. P.W-4 SIP Sultan Ahmed, he has stated that on 04.09.2007, he was performing his duty. At 10:15 AM, one Riaz informed him that a dead body was lying near graveyard at Rehman Town Malir Cantt, Karachi and he made such entry in Roznamcha and produced it at Ex.12, then he proceeded in police mobile along with subordinate staff to the pointed place and saw the dead body lying there. He inspected it and prepared inquest report in presence of mashirs, took the photographs of the dead body, called Edhi Ambulance and shifted the dead body to the JPMC, where postmortem examination of the dead body was conducted. Medical officer returned clothes of the deceased to the police officer. He sealed same thereafter, dead body was shifted to Edhi Cold Storage, Sohrab Goth and he deposited clothes and two sealed jars at Police station.

18. P.W-5 SIP Ameer Gul has stated that on 04.09.2007, he received FIR of the Crime No.57/2007 registered at PS Malir Cantt. u/s 302 PPC for investigation purpose along with articles. He recorded statements of P.Ws u/s 161 Cr.P.C and prepared news item regarding identification of dead body in order to search/locate the legal heirs of the deceased. He had also contacted Editor of Daily “Awam” newspaper for publication of the photographs of the deceased in the newspaper. He has further stated that on 22.09.2007, he was present at P.S where two persons namely Mohammad Anwar and Iqbal appeared at P.S for collecting the information about the deceased. They showed photograph of deceased Naveed. SIP Ameer Gul matched the photograph which he had taken of deceased and confirmed that deceased was Naveed and informed his relatives that his dead body was lying in Edhi Centre. They further informed SIP Ameer Gul that they had lodged FIR of the kidnapping of the deceased at P.S City Court. He recorded their 161 Cr.P.C statements. On 28.10.2007 entry was received by him from AVCC that investigation of the case has been assigned to the AVCC, then he handed over investigation papers to the AVCC.

19. P.W-7 PC Hassan Raza has stated that on 20.09.2007, he was present in his office , I/O of the present case took him to CPLC Governor House. He along with PC Raja Jamshed and SIP Tahir Naseer went to CPLC where SIP Tahir Naseer moved an application for supplying data of mobile No.0332-2438556 and CPLC provided data of said mobile phone. SIP Tahir Naseer prepared such memo. He acted as mashir. 161 Cr.P.C statement was recorded. He has further stated that on 28.10.2007 at 9:00 pm, one Nusrat Ali came at AVCU in the office of I/O Tahir Naseer, I/O showed him photograph of a person to whom said P.W Nusrat identified that said person along with two male and one female came to him and asked him to give the key of the house No.A/497 and he handed over key of that house. Such memo was prepared and he acted as mashir. He has produced such memo and photograph at Ex.28 and Ex.28/A.

20. P.W-8 PC Muhammad Rashid has deposed that on 23.10.2007 he was present in his office, he was asked by SIP Tahir Naseer to accompany him to CPLC and he along with PC Lal Shah and SIP Tahir Naseer went to CPLC in police mobile, where I/O submitted an application for collection of data of mobile No.0300-2855087 and CPLC officials supplied the copy of data of said mobile phone. Such mashirnama was prepared by S.I and he acted as mashir.

21. P.W-09 HC Banaras Khan has deposed that on 24.10.2007 he was present in his office. At 3:00 pm SIP Tahir Naseer I/O of this case took him to CPLC, PC Sageer Sultan was also taken, from where investigation officer collected date of mobile phone Nos. 0333-3961147 and 0334-3382535.

22. P.W-10 Nusrat Ali. He has stated that he is an employee in KDA and as part time he runs estate agency at Raza Arcade, Shahrah-e-Faisal, Karachi. He knew accused Mst. Zainab who used to visit his estate agency. In August 2007 accused Zainab came at his agency and asked P.W Nusrat Ali that marriage of her sister was to be solemnized and some guests would come from India, she needed key of the house for the guests. Thereafter, he has stated that Mst. Zainab brought accused Sohail and Asif to meet him in a hotel. On 03.09.2007 at 6:30 PM Mst. Zainab along with appellant Sohail and absconding accused Asif and one unknown person came at to the residence of Nusrat Ali, again said that they called at Safora Chowk, he went there in the Car and showed house to the appellants bearing No.A-497, Block-7, Gulsitan-e-Johar and he handed over the key of the house to Mst. Zainab. They were in the Toyota Vitz car. After handing over them the key of the house, estate agent Nusrat Ali went to his house. On 28.10.2007 at 8:00 pm, he was called by I/O at AVCU, where he showed him computer print photograph of deceased for identification, he recognized the person who was accompanying the accused on 03.09.2007 and his statement was recorded. He has clearly stated that I/O informed him that said person has been murdered. Appellant Zainab and Sohail present in the Court were same to whom he handed over the key of the house at that time deceased Naveed Ahmed was with them.

23. P.W-11 Mohammad Nadeem stated that he runs printing press. Deceased Naveed was his brother. He was running a chemical business at Jodia Bazar and printing press of PW Nadeem is situated at Shershah. On 03.09.2007 at 12:30 pm, his brother Naveed (now deceased) left his house in his Vitz Car for his office prior to him and he left house for his office. On the same day at about 3:45 PM he talked to his brother Naveed on telephone at that time he was near to his office at Jodia Bazar. At about 8:00 or 8:15 pm his father talked on phone to Nadeem at that time he was at Kharadar, his father was disturbed and he informed PW Nadeem that Naveed has been kidnapped, he should come immediately. He went to his father at Gulbai where his father informed him that he has received a telephone call from unknown caller and voice of Naveed was also heard by his father on mobile and it was confirmed that Naveed has been kidnapped. Father of the deceased told his son Nadeem that caller had demanded Rs. 8 Crore for the release else his son would be murdered. Father of the deceased replied the caller that it was a very huge amount then call was disconnected. Thereafter, father and son started search for the Naveed but without any result. On 06.09.2007 at 3/4:00 pm a call was received by one Iqbal Khatri at Stock Exchange from his son Suleman, who was the friend of deceased Naveed who informed his father that Car of Naveed has been found parked at P.S Gulistan-e-Johar. Iqbal Khatri informed the father of the deceased. On 06.09.2007 he went to the PS City Court at 9/10:00 pm where he lodged FIR regarding kidnapping for ransom of his brother. On 07.09.2007 he met the I/O of the case and supplied him packing box of mobile of his brother No.0300-2279831. Such mashirnama was prepared by the I/O in presence of mashirs. Complainant party remained in search of the brother and visited Edhi Cold Storage but without any result. On 21/22.09.2007 again he along with his friend P.W Iqbal Khatri went to Edhi Cold Storage where photographs of the dead bodies were shown to him and he identified photograph of his brother Naveed. He was informed by Edhi authorities that his brother has been buried a week back and such information was given to P.S Malir Cantt. I/O recorded further statement of the complainant.

24. P.W-12 Mohammad Zakaria, the father of deceased Naveed has stated that on 03.09.2007 his son Naveed left house at 12:30 pm in his Vitz car for office. His son was running business of chemical at Jodia Bazar near City Court. He used to park his car at CPLC Ground City Court. On the same day he was sitting with his friend Muhammad Iqbal Khatri where at about 8:11 PM he received a call on mobile No.0300-2252144 from mobile No.0332-2438556. Caller enquired from Mohammad Zakaria whether he was father of the deceased, to which he replied in affirmative then he was asked to listen voice of his son Naveed. At that time Naveed informed the father that he has been kidnapped, make arrangement of Rs.8 Crore. Father of Naveed replied that it was very huge amount, threat was issued to him that he would receive the dead body of his son. Thereafter, Mohammad Zakaria called his another son Nadeem for consultation. On 06.09.2007 they received information that car of deceased has been found parked at Gulistan-e-Johar P.S. He directed his son Nadeem to lodge FIR of the incident.

25. P.W-13 Mr. Asif Ahmed Memon Civil Judge/ Judicial Magistrate, Karachi South has stated that on 29.10.2007, I/O submitted an application before him for recording the confessional statement of accused Mst. Zainab and Sohail. On the next day both accused were produced by the I/O. For observing legal formalities he introduced himself to the accused that he was Magistrate and accused were not bound to give their confessional statements. He asked question regarding any pressure, threat or inducement, but appellants/accused replied in negative. Magistrate also asked them as to why they were making the confession, they replied to satisfy their conscious. Magistrate provided them two hours time for reflection, issued them warning that same confession could be used against them. Magistrate informed accused that after confession they would be remanded to jail. Thereafter, firstly he recorded confessional statement of Mst. Zainab. After recording her confession he obtained her signatures and photograph and appended Certificate at the bottom of the confessional statement. In the same manner he recorded confessional statement of accused Sohail. Both apellants/accused admitted guilt. He remanded both the accused to the judicial custody. In the cross examination, Civil Judge and Judicial Magistrate has denied that he had not asked from accused that since when they were in police custody. Magistrate had denied the suggestion that he had not specifically questioned the accused as to why they were making the confessional statements. He has also denied the suggestion that after recording confessions he had handed over the custody of the accused to the same I/O. He has denied the suggestion that confessional statements of the accused were not voluntarily.

26. P.W-14 Mohammad Iqbal has stated that he owns Embroidery factory. Complainant and his father are known to him. On 03.09.2007 he was present at his office. Father of the deceased was also sitting with him. It was 8:11 PM, P.W Zakaria received a call on his mobile and he was informed that his son Naveed has been kidnapped for ransom. Naveed was running business near City Court. Thereafter P.W Iqbal along with father of deceased started search for Naveed but could not succeed. On 21.09.2007 he along with Anwer who is maternal uncle of deceased went to Edhi Centre Sohrab Goth where photographs of dead bodies were shown to them and he identified photograph of Naveed. Edhi authorities informed Mohammad Iqbal that dead body has been received by them through Malir Cantt. PS and it has been buried as unclaimed dead body. PW Mohammad Iqbal returned to the father of the deceased and narrated him this fact. Malir Police had also shown photograph to the complainant party and it was identified by them as Naveed.

27. P.W-15 ASI Sardar Mohammad has stated that on 26.10.2007 he was present at AVCU. I/O of this case called him at 5:30 pm for the purpose of raid. He along with ASI Abdul Jabar, HC Banars, lady constable Nafeesa Begum and other police officials headed by SIP Tahir Naseer proceeded in the police mobile to H.No.1056 Mehmoodabad No.5 from where accused Mst. Zainab was arrested. I/O enquired from her about the co-accused she disclosed their names as Sohail and Asif. She was arrested in presence of mashirs and her physical search was conducted by lady constable Nafeesa Begum, one Nokia mobile set was recovered from her possession. She also led police party and pointed out the house of accused Sohail situated at Micasa Apartment Flat No.313. He was arrested in presence of the mashirs. During interrogation he admitted his guilt. Nokia phone was also recovered from him. Thereafter both the accused led police party pointed out the place from where they had thrown the dead body of deceased at Rehman Town near Safora Goth graveyard. Such mashirnama was prepared. He has further deposed that on 28.10.2007 accused Sohail volunteered to point out the place of captivity and murder of deceased H.No.A-497, Block-7, Gulistan-e-Johar where accused Sohail pointed out that they had committed murder of the deceased in the said house. At that time house was locked. I/O enquired regarding owner of the house. I/O called the owner and he handed over the key to the I/O Tahir Naseer and left the place while saying that he had some emergency. I/O opened the lock entered into the house. Accused Sohail led police to the Gallery where one iron box was lying. Accused Sohail took out a pair of shoe and stated that shoe belonged to deceased Naveed. He had also handed over one envelop in which there was photocopy of NIC of deceased and visiting cards of deceased were lying. I/O recovered the same in presence of mashirs and prepared such mashirnama. In the cross-examination he has denied the suggestion that a pair of shoe and other belongings were brought by his father at P.S. He has also denied the suggestion that he was deposing falsely against accused.

28. P.W-16 SIP Tahir Naseer has deposed that on 07.09.2007 he was entrusted investigation of crime No.95/2007 u/s 365-A PPC, PS City Court, Karachi and he received copy of the FIR. After receipt of the copy of FIR, he contacted complainant and called him at AVCU with direction to bring packing box of mobile phone of his brother/abductee. It was brought its IMEI No.35220601-081233-4 in the name of deceased Naveed. He secured it in presence of mashirs. On the same day sent HC Akhtar of PS Gulistan-e-Johar, where Vitz car of the deceased was parked and it was brought to AVCU. Such mashirnama was prepared in presence of mashirs. On 20.09.2007 he along with PCs Hassan Raza and Raja Jamshed went to CPLC where moved an application for collection of the data of Mobile phone No.0332-2438556 from 01.05.2007 to 11.09.2007. I/O noticed that there were many calls of cell No.0333-3961147, he filed an application for providing data of said phone No.0334-3382535 and he came to know that 0334-3382535 belonged to Mst. Zainab and cell No.0333-3961147 belonged to accused Sohail. On 26.10.2007 he along with ASI Jabbar and others staff by taking lady constable reached to the house of Zainab and arrested her from the house. She admitted guilty during interrogation and produced Nokia mobile phone. After arrest she was made to sit in police mobile and she disclosed accused Sohail as her friend and pointed out her flat fromwhere accused Sohail was arrested in presence of mashir. He admitted his involvement in the present case and was arrested and recovered one mobile phone used in the commission of offence. During interrogation accused Sohail volunteered to point out the place where they had thrown the dead body of the deceased within the limits of PS Malir Cantt. near Rehman Town and stated that dead body was thrown by him in the company of co-accused Zainab and absconding accused Asif. He recorded 161 Cr.P.C statements of P.Ws. During interrogation Mst. Zainab disclosed that she had got a house on rent from PW Nusrat. PW Nusrat was called at AVCU where he was shown a computer print photograph of Naveed (deceased) he identified the same and stated that he was in the company of accused Mst. Zainab, Suhail and Asif on 03.09.2007 he handed over key of H.No.A-497, Block-7, Gulistan-e-Johar, Karachi. On 28.10.2007 he along with police party and accused Sohail went to the house No.497, B1-7, Gulistan-e-Johar where accused Sohail informed the police that deceased was detained there in the house at that time bungalow was locked. Owner was called, he came and handed over key of the bungalow and went away. I/O opened the lock entered into the house along with accused Sohail there was four bed rooms, drawing room, one kitchen. Accused took police party to the side of the Bungalow where there was a small Gallery where big iron box was lying, accused took out plastic bag from the box and handed over the I/O. I/O checked the same there was pair of sandal, different visiting cards and photocopy of CNIC of deceased. I/O seized it in presence of the mashirs. On 29.10.2007, both accused voluntarily prepared to make the judicial confession and he submitted application to the concerned Judicial Magistrate and confessional statements of both accused were recorded. In the cross examination he has denied the suggestion that articles have been managed by him so also the mobile phones. He has also denied the suggestion that after judicial confession accused were handed over to him by the Magistrate. He has also denied the suggestion that Mst. Zainab has been falsely implicated in this case.

29. Mr. Mushtaq Ahmed learned Advocate for the appellant Mohammad Sohail argued that there was delay in lodging of the FIR for which no plausible explanation has been furnished. Incident was un-witnessed, circumstantial evidence collected during investigation was insufficient to connect appellant in this case. There are material contradictions in the evidence of the prosecution witnesses, confessional statement of appellant was recorded after 03 days of his arrest and it was involuntarily, no employee of CPLC has been examined to prove data of mobile, owner of the house has not been examined by the prosecution. Dead body was not identified by the complainant party. It was also contended that joint pointation of accused of the place from where dead body was thrown was inadmissible in evidence. Lastly, it is argued that prosecution case was highly doubtful.

30. Mr. Khawaja Naveed Ahmed learned Advocate for appellant Mst. Zainab argued that appellant Mst. Zainab was arrested on 26.10.2007 and her judicial confession was recorded on 30.10.2007. Learned counsel has argued that appellant Zainab in her judicial confession has stated that she had prevented co-accused for committing murder of the deceased. Mr. Khawaja argued that such confessional statement would not be sufficient to maintain her conviction. He next contended that during entire episode no active role has been assigned to the appellant Zainab in the commission of the offence. Lastly, it is contended that incident was un-witnessed, other pieces of evidence were weak, the same have been wrongly relied upon by the trial court for recording the conviction against Mst. Zainab.

31. In support of his contentions learned counsel for the appellants have relied upon the following reported cases:

1. Mir Zaman and 5 others vs. the State (2012 SCMR 580.

2. Muhammad Akram versus The State (1995 SCMR 1359).

3. Muhammad Yousaf versus The State (1995 SCMR 351)

4. Abdul Latif versus State (PLJ 1999 SC 264)

In the case of Mir Zaman (2012 SCMR 580), supra, the Honourable Supreme Court of Pakistan has observed as under:

“According to the prosecution Nadeem alias Nomi and Jan Muhammad appellants had confessed their guilt before a Magistrate through their statement recorded under section 164 Cr.PC which statements had subsequently been retracted by the said appellants. the law on the point is quite settled that a retracted confession must be corroborated by some other independent evidence and the same seldom suffices by itself to record a conviction on the basis of the same.”

In the case Muhammad Akram versus The State (1995 SCMR 1359) the Honourable Supreme Court has held as under:

“It is also an accepted rule of prudence in criminal cases that the Court before convicting an accused person solely on the basis of his retracted confession must satisfy itself that the confession is voluntary and true and further look for some other independent piece of direct or circumstantial evidence in the case which corroborated the retracted confession of the accused, to ensure safe administration of justice.”

In the case of Muhammad Yousaf versus The State (1995 SCMR 351) it has been observed by the Honourable Supreme Court as under:

“For the reasons stated above we are inclined to hold that the occurrence is un-witnessed and the appellant was apprehended on suspicion like others and made to confess which has been retracted. The confessional statement is neither voluntary nor supported by any reliable corroborative piece of evidence. Resultantly, this appeal is accepted, judgment of the learned High Court is set aside and the appellant is acquitted of the charge. He shall be set free forthwith if not required in any case.”

In the case of Abdul Latif versus State (PLJ 1999 SC 264) the Honourable Supreme Court has observed as under:-

“However, no hard and fast rule as to the acceptability of retracted confessions can be laid down. As it is, precedents in criminal cases do not carry the same persuasive value as precedents in other matters and each criminal case has to be decided on its own facts. Delay in recording a confession, if remaining un-exclaimed and if exhibiting an unconscionable state of affairs can be fatal to a retracted confession.”

32. Mr. Khadim Hussain Khuharo learned DPG argued that prosecution has proved its case against the appellants, delay in lodging of the FIR was immaterial in the circumstances of the case, confessional statements of the appellants were recorded explaining delay. He has further submitted that appellants led the police to the house where murder was committed and led the police party to the estate agent from whom key was taken by the appellants. He has also argued that a pair shoe of the deceased was also recovered at the instance of the appellants. He has further contended that Mst. Zainab had called the deceased at Safora chowk and estate agent gave key of the house to Mst. Zainab. Lastly he has submitted that confessional statement is to be read as a whole. In support of his contentions, he has relied upon the case of Juma alias Jamal versus the State PLD 1958 Peshawar 147, in which it has been observed as under:

“The correct proposition of law as enunciated from time to time by different High Courts is that if the only evidence in a case consists of the confession of an accused person and there is no other ocular or circumstantial evidence to connect him with the crime, the confession must be accepted or rejected as a whole. But if on the other hand, apart from the confession, there is evidence, whether ocular or circumstantial, which contradicts a part of the confession, it is perfectly permissible to a Court to accept that part of confession which is consistent with the evidence, and reject that part of the confession which is inconsistent with it.”

33. We have come to the conclusion that prosecution has proved its case against the appellants Sohail and Zainab for the reasons that PW Mohammad Zakaria, father of the deceased Naveed has categorically stated that on 03.09.2007 his son Naveed left house at 12:30 pm in his Vitz car to run the business at Jodia Bazar near City Court where he used to park his car. Father of the deceased was with his friend P.W Mohammad Iqbal Khatri at 8:11 pm, he received a mobile call on his mobile No.0300-2252144 from cell No.0332-2438556 deceased Naveed told the father that he has been kidnapped he should make arrangement of Rs. 8 Crore else he would receive the dead body of the son. Thereafter, PW Mohammad Zakaria called his son Nadeem and he lodged the FIR. Complainant Mohammad Nadeem has stated that on 03.09.2007 at 8:00 or 8:15 pm he received call of his father who told him the fact of kidnapping of Naveed and demand of ransom made by the culprits then he lodged FIR. Complainant produced empty packet of mobile (IMEI-35220601-081233-4) in the use of deceased. PW Nusrat, Estate Agent, has also fully implicated appellants and stated that Mst. Zainab used to visit his estate agency. In August 2007 she came to his agency and stated that marriage of her sister would be solemnized and some guests would come from India and needed the key of some house to accommodate the guests. Thereafter, she brought accused Sohail at his estate agency and introduced him as her fiancé. Thereafter, 2/3 times she visited estate agency along with accused Sohail and Asif. He has further stated that on 03.09.2007 at 6:30 pm Mst. Zainab along with appellant Sohail and absconding accused Asif and one unknown person came to him and PW Nusrat Ali estate agent had shown them the house and gave the key of the house to Zainab. At that time they were in Toyota Vitz Car. From evidence of P.W Nusrat it appears that deceased was in the company of the appellants and his Vitz car was in their use and Mst. Zainab succeeded to obtain key from the estate agent on the pretext that some guests would come to her on the occasion of the marriage of her sister from India. ASI Ghulam Abker of PS Gulistan-e-Johar had also recovered Vitz car No.AMC-023 from Alladin Park. During search some blood was found on the seat of the car. Data of the mobile phone used by the deceased and appellants have also been brought on record. Evidence of I/O Tahir Naseer revealed that during investigation he collected the incriminating pieces of evidence against the appellants and placed on record Data of Mobile No. 0332-2438556 from 01.05.2007 to 11.09.2007. He has also placed on record the data of mobile phone No.0300-2855087. He has clearly stated that mobile No.0334-3382535 belongs to accused Zainab and cell No.0333-3961147 belongs to accused Sohail. On 26.10.2007 he arrested accused Zainab from her house in presence of mashirs, interrogated her and recovered Nokia mobile phone from her possession. During interrogation she admitted that appellant Sohail is her friend and she led police and pointed out the house of co-accused Sohail situated in Gulshan-e-Iqbal at Micasa Apartment Flat No.313 and accused Sohail was arrested from the house in presence of mashirs and mobile phone Nokia was also recovered from his possession. I/O has further stated that accused Sohail voluntarily led police party to the jurisdiction of P.S Malir Cantt. and he got stopped the police mobile at Rehman town and pointed out the place by the side of the road that it was the point wherefrom along with accused Zainab and absconding accused Asif they had thrown the dead body of the deceased. Such mashirnama was prepared in presence of mashirs. I/O has stated that Zainab during interrogation had stated that she had got a house on rent from P.W Nusrat and he called PW Nusrat at AVCU where had had shown computer print photograph of the deceased to PW Nusrat and he identified photograph and stated that he was the same person who was in the company of the appellants. On 28.10.2007, he went to the said house with accused Sohail situated at Gulistan-e-Johar where he admitted that they had kept the abductee in the said house. At the time house was locked. I/O called the owner of the house on telephone, he came and handed over the key of H.No.A-497 and went away. I/O entered into the Bungalow where there were four bed rooms and iron box was lying there. Accused Suhail led police to iron box and took out plastic bag and handed over the same to the I/O, he checked the same and found a pair of Sandal and different visiting cards and one photocopy of CNIC of deceased. These pieces of evidence fully connect the appellants regarding their involvement in the commission of the offence. In addition to that I/O has stated that on 29.10.2007 both accused namely Sohail and Mst. Zainab volunteered to confess the guilt before the Magistrate and he produced them before the Magistrate where their judicial confession was recorded in which they admitted guilt.

34. Evidence of the Civil Judge/Judicial Magistrate as discussed above is straightforward and reliable for the reason that Magistrate took all the pre-cautions before recording the confession of the appellants. He had specifically informed the appellants that they were not bound to give statement if they gave the same it could be used against them as evidence. Magistrate further told the appellants that they would not be remanded back to the police custody after they made the confession or otherwise. Civil Judge/Judicial Magistrate also enquired from the police as to why they were making the confession to which they replied that they were making the confession on their own freewill that whatever they had done they were giving that statement. Specific question was also asked by the Magistrate from the appellants about the inducement, threat or promise given to them by the police or anyone else by inducing them to make the confessional statement to which they replied in negative. Both appellants replied that police did not maltreat them. After satisfaction, learned Civil Judge/ Judicial Magistrate recorded judicial confession of the appellants wherein they had admitted the guilt. From the confessional statements of the appellants, we are satisfied that confessional statements of the appellants were voluntarily and true. Truthfulness of the confession can very well be assessed from the fact that in the confession appellant Sohail has stated that absconding accused Asif is his friend, he went to him and disclosed that he wanted to marry co-accused Mst. Zainab but he was in financial crises. Asif advised him to kidnap a person for ransom thereafter Naveed was kidnapped by Sohail and Zainab and he was brought to the house provided by Estate Agent. Naveed was raising cries, finding no other way, appellant Sohail and Asif tied hands and feet of Naveed and absconding accused Asif committed murder of the deceased by means of Churri. Mst. Zainab in her confessional statement has stated that she had love with Sohail but Sohail had no sufficient sources to make the arrangements for the marriage and he contacted his friend Asif who advised him to kidnap a person for ransom. She has further confessed that she had taken Naveed to Safora Goth in vacant house, electricity was off, Asif and Sohail tied hands of Naveed and Asif committed murder of Naveed as Naveed was raising crises and was not keeping calm, handkerchief was also put in his mouth. In the end, she has stated that she had restrained the co-accused from committing murder of Naveed.

35. Mere fact that appellants Mohammad Sohail and Mst. Zainab retracted their confession at trial, the same would not lead to the conclusion that confession made by them was involuntarily or under some compulsion. Conviction of accused can be based even on retracted confession, if the Court is satisfied that the confession was made voluntarily. However, as a rule of caution and procedure, the Court looks for other evidence and material on record to seek corroboration of retracted confession before convicting the accused. In this case, trial Court has assigned sound reasons while relying upon the confessional statements of the appellants and sought corroboration from other pieces of evidence and came to the conclusion that prosecution has proved its case against appellants. In the case of Haq Nawaz and others versus the State and others (2000 SCMR 785) the Honourable Supreme Court has been pleased to observe as under:-

“It is also well settled that the retracted confession can also be used as a corroborative piece of evidence for proving prosecution theory (Muhammad Akram v. The State 1995 SCMR 1359). The following broad principles were laid down by this Court in the case of Ch. Muhammad Yaqoob v. The State (1992 SCMR 1983) to evaluate the evidentiary value of a confessional statement:-

19. From the above-cited cases, inter alia, the following principles of law are deducible:-

(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.

(ii) That a statement of an accused that contains self-explanatory matter cannot amount to confession.

(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.

(iv) That though the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.

(v) That the confession of a co-accused is an evidence of a weak character.

(vi) That under Islamic Jurisprudence, in order to make a confession reliable, it should be voluntarily made and not on account of any coercion, duress or violence.

(vii) That any delay in recording of a confession may or may not be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Prizada v. Sohbat Khan and 3 others (supra), this Court has held that the factum that the accused were in the police custody for 11 to 15 days; was not fatal as to the credibility of the retracted confessions for the reasons that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily.

(viii) That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.

(ix) That if an accomplice’s evidence is not corroborated in material respect it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.

20. The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding the same.

36. Arrest of both the accused itself appears to have unfolded the whole episode. Appellant Mst. Zainab made disclosures and provided solid clues. Appellant Suhail led the investigator to the place where deceased was murdered and the corner of the bungalow where from a pair of chappal, copy of CNIC and other articles were recovered from the iron box. Applicants/accused had also led the investigation officer to the place from where after committing the murder of the deceased Naveed his dead body was thrown by all the three accused. By making confessional statements before the Magistrate accused solved the mystery as to how and why all that happened. No valid justification existed to disbelieve confessional statements recorded by learned Civil Judge and Judicial Magistrate. Contention of the defence counsel that Mst. Zainab in the end of her confessional statement has mentioned that she had prevented other accused not to commit the murder of the deceased. Only this sentence would not absolve Mst. Zainab from her act. In her confessional statement she has admitted the guilt from the very beginning even otherwise correct proposition of law is that confession be accepted or rejected as whole. We have several reasons to believe the confessional statements of the applicants/accused for the reason that the same are corroborated by medical and other incriminating pieces of evidence. Chain of events, which led the investigation officer to ultimately unearth the facts is established by overwhelming evidence. The recovery of the incriminating pieces of evidence on the pointation of the applicants/accused and disclosures of events as to how so happened, medical evidence, chemical/serologist report, recovery of chappal and CNIC from the iron box lying in the house where deceased was done to death for ransom, were all important pieces of corroborative evidence, which cannot be ignored. Later denial of everything by the applicants/accused, including disclosures and even confessional statement before the Magistrate lost its worth in the light of hard facts. Plea of the applicants/accused of torture by the investigation officer as per their statements under section 342 Cr.PC was also an afterthought. We are satisfied that there remained no doubt that disclosures made and clue provided by the accused themselves an unbroken chain of events furnished sound proof leading to the conclusion that appellants were responsible for the commission of the offence whereby deceased lost life.

37. Admittedly, incident had occurred on 03.09.2007 and F.I.R. was lodged on 06.09.2007. Complainant Muhammad Nadeem has fully explained the delay by deposing that after incident they were searching for their brother and were waiting for a call of culprits but they did not receive any call, thereafter, F.I.R. was lodged on 06.09.2007. Thus, we are inclined to hold that in the given circumstances of the instant case, delay in lodging the F.I.R. was not fatal to the prosecution case. As regards to the contention of the learned defence counsel that there was delay in recording of confession of the accused. From the record it stands fully explained in view of the fact that on 26.10.2007 the I.O. arrested accused Mst. Zainab, during interrogation she admitted guilt, produced Nokia mobile phone and admitted that accused Suhail is her friend and she led the police party to the house of co-accused Suhail and he was arrested in presence of mashirs and Nokia phone was recovered from his possession, thereafter, accused Suhail volunteered to led the police party to the place where they had thrown the dead body of the deceased at Rehman Town on the road. On 27.10.2007 appellant Mst. Zainab disclosed that she had obtained key from PW Nusrat of the house and PW Nusrat identified the photograph of the deceased by stating that he was the same person who was accompanied by Mst. Zainab, Sohail and Asif, as such, delay has been fully explained. It is now well settled principle of recording the confessional statement that there is no hard and fast rule for recording the confession immediately after arrest of the accused, however, efforts should be made to do so as early as could be possible but if there is sufficient explanation and other evidence attending the confession then if there is a delay the same is condonable. No doubt, incident was un-witnessed but incriminating conduct and information furnished by appellant Mst. Zainab of the house where murder of the deceased was committed and disclosure of the name of the Estate Agent from whom she had obtained the key and leading of appellant Suhail to the place where, after murder, dead body of the deceased was thrown and recovery of the belongings such as chappal and national identity card of the deceased from the iron box lying in house where abductee was killed and confessional statements made by the appellants have been proved by overwhelming evidence. The chain of events dispels any doubt. Prosecution has proved that deceased was kidnapped for ransom and kidnappers talked to the father of the deceased and demanded Rs.8 Crores ransom. Estate Agency namely Nusrat identified the photograph of the deceased by stating that he was brought in the Vitz Car by present applicants/accused and absconding accused Asif. According to confessional statements, the deceased was murdered by means of chiri and the medical evidence corroborated it. Mere denial of the appellants in their statement recorded under section 342 Cr.PC that before recording the confessional statements they were maltreated, it appears to be afterthought. In this case no enmity whatsoever has been brought on the record by the appellants against the complainant party. Since place of throwing the dead body and house where the deceased was murdered and pointation of chappal and CNIC of the deceased lying in iron box in said house are the pieces of evidence disclosed on information furnished by the applicants/accused Mst. Zainab and Suhail. Such information furnished by the appellants to the investigation officer could be used against them under Article 40 of the Qanun-e-Shahadat Order, 1984 as observed by the Honourable Supreme Court of Pakistan in the case of Nazir Shehzad and another versus the State (2009 SCMR 1440), relevant portion is reproduced as under:

“7. We have considered and scrutinized the remaining prosecution evidence, in depth. PW.13 stated in clear terms that, after arrest of the accused he firstly interrogated Samar Jan and later on he interrogated Nazir Shehzad. Both the appellants, who were separately interrogated, informed the Investigating Officer about the place i.e. Rohi Nala in the area of Police Station Kahna, where they had thrown the dead body. This discovery based on the information furnished by the appellants led to the recovery of dead body from the Nullah. There is no doubt about it that prior to information furnished by the appellants the whereabouts of dead body were not known to anyone. The information furnished by the appellants to the Investigating Officer can be used against them under Article 40 of Qanun-e-Shahadat Order, 1984. As in a case of confession made under Article 40 of the Qanun-e-Shahadat Order, 1984, it is expected to find the discovery of something which can be associated with the deceased.

38. Evidence led by the prosecution is reliable and trustworthy, we have no reason to disbelieve it. Learned trial Court has rightly appreciated the evidence and came to the conclusion that prosecution has proved its case against the appellant beyond any reasonable doubt. There is nothing substantial in the statement of the appellants to discredit such confidence inspiring evidence. Trial Court on the basis of evidence was justified to record conviction against appellants.

39. Now, there is another important question of quantum of sentence, which engaged our serious attention. It has come in evidence that there was love affair between appellants Zainab and Suhail but they could not marry for want of money and kidnapped deceased for ransom. Ages of appellant Zainab and appellant Suhail were 21 years on 12.04.2008 as mentioned in their statements recorded under section 342 Cr.PC. No proof regarding exact ages was brought on record. Incident has occurred on 03.09.2007. It means that both the appellants were aged about 19 years at the time of incident. Appellant Suhail has been sentenced to death and Mst. Zainab has been sentenced to imprisonment for life. In the case of Muhammad Sharif versus Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452) extenuating circumstances have been mentioned as under:

“However, there may be a host of extenuating and mitigating circumstances such as extreme youth, sudden provocation, influence of an elder, question of family honour etc. justifying the award of the lesser penalty of life imprisonment based on a chain of judicial pronouncements offering useful guidelines.”

39. Extreme youth of appellant Suhail and circumstance that murder was committed for collecting money for marriage by the applicant/accused in emotional love is mitigating circumstance in this case, which is justifying the award of lesser penalty of life imprisonment, therefore, death sentence awarded to the appellant Suhail is converted to life imprisonment. He is extended benefit of section 382-B Cr.PC. However, conviction and sentence awarded to appellant Zainab are maintained. Reference for confirmation of death sentence award to appellant Suhail made by the learned trial Court is answered in negative.

With the above modifications appeals are dismissed.

JUDGE

JUDGE

Gulsher/PA