IN THE HIGH COURT OF SINDH AT KARACHI
Special Anti-Terrorism
Jail Appeals Nos. 7 and 9 of 2008
Present:
Mr. Justice Ghulam Sarwar Korai
Mr. Justice Naimatullah
Phulpoto
Appellants : Muhammad Shamim and Masood Alam through Mr. Sheraz Ahmed Siddiqui Advocate.
Respondent
: The State through
Mr. Khadim
Hussain
Khuharo DPG.
Date of
hearing :
26.09.2013
Date of
announcement : 11.10.2013
J U D G M E N T
NAIMATULLAH PHULPOTO, J.- Appellants Masood
Alam and Muhammad Shamim
were tried by learned Judge, Anti-Terrorism Court No.III,
Karachi in Special Case No.29/2006 under Sections 7(e) Anti-Terrorism Act, 1997
read with Section 365-A/34 PPC. On the conclusion of trial, appellants were
found guilty vide judgment dated 11.02.2008 and were convicted under section
7(e) of the Anti-Terrorism Act, 1997 read with section 365-A PPC and sentenced
to imprisonment for life, their moveable and immovable properties to the extent
of Rs.100,000/- each were forfeited to the Government
and in case of default in payment of fine, appellants were ordered to suffer
S.I. for 6 months more. Benefit of Section 382-B Cr.P.C
was extended to them.
2. Separate appeals were preferred by the
appellants Mohammad Shamim and Masood
Alam through Jail. By this single Judgment, we intend
to dispose of the same.
3. Brief facts of the prosecution case as
disclosed in the F.I.R. are that on 25.08.2006 when the complainant Sagheer Ahmed came back to his house from his duty at about
7:30 P.M, his sister-in-law (brother’s wife) informed him that the child Zainul Abdin had gone to offer
his Zuhar prayer in Abdullah Masjid but did not
return back and his father (the brother of the complainant) PW Siddique had already gone in search of his son in the Mohallah. The complainant also went to search the child but
all in vain. The complainant at about 10:30 PM reported the matter at PS Peerabad vide Roznamcha entry
No.50. The Roznamcha entry was subsequently incorporated
into F.I.R. No.190 of 2006 u/s 365-A/34 PPC. Thereafter, incident came on the
TV through cable operator with telephone numbers of complainant as 0334-3228562
for contact and further information about culprits. On 26.08.2006 at about 2:00
PM complainant received a call on his mobile cell whereby caller informed him
that his nephew, minor Zainul Abidin
has been kidnapped by them and demanded an amount of Rs.100,000/-
as ransom for the release of the minor Zainul Abidin. The amount of ransom was however, finally settled
by the caller at Rs.50,000/-. On 28.08.2006 at about
10:00 AM complainant again received another call on his phone whereby the
kidnappers asked him to arrange the said amount and in case of failure they
threatened him to kill the minor boy. On the same day, complainant arranged an
amount of Rs.50,000/- and then at about 3:30 pm, he along with his brother Siddique went to the pointed place, Ghaziabad graveyard
near black hills, Orangi Town. When they reached
there, a person aged about 30/35 years came down towards them and asked for the
ransom amount. Complainant gave him Rs.50,000/- as
ransom. After receiving the amount of ransom, he gave a signal to somebody who
was also standing over the hills with the custody of minor Zainul
Abidin,
he released the minor Zainul Abidin.
Complainant party brought boy to their house. The police was informed by the
complainant through telephone. After recovery of child entry No.50 was incorporated
to F.I.R No.190/2006. During investigation conducted by the S.H.O./Inspector Irfan Ahmed Khan, the accused namely Masood
Alam and Mohammad Shamim who
were already under arrest in Crime No.171/2006 and 172/2006 of PS Pakistan
Bazar disclosed about kidnapping of two children, out of them one was, abductee
child Zainul Abidin who was
abducted on 25.08.2006 from Sector 5-E Orangi Town of
PS Peerabad. S.H.O. Irfan
Ahmed went to PS Pakistan Bazar and took custody of the accused namely Masood Alam and Mohammad Shamim. Both the accused admitted the crime of kidnapping
of minor child Zainul Abidin
before Inspector Babar too. The accused were accordingly produced before
Administration Judge for Anti-Terrorism Courts, Karachi. Civil Judge/Judicial
Magistrate-IV Karachi West, conducted identification parade of the accused on
the application of S.H.O. Babar through PWs Sagheer
Ahmed and Siddique who identified both appellants.
4. After usual investigation, Challan was submitted against the appellants/accused under
Section 365-A/34 PPC read with Section 7 Anti-Terrorism Act, 1997.
5. A formal charge against appellants Masood Alam and Mohammad Shamim was framed by trial Court under Sections 365-A/34
PPC read with section 7(e) of Anti-Terrorism Act, 1997 Ex.05. To the charge,
accused pleaded not guilty and claimed trial.
6. At trial, prosecution examined PW-1 SIP
Ali Akber at Ex.8, PW-2 PI Irfan
Ahmed at Ex.10, PW-3 SIP Ali Muhammad at Ex.11, PW-4 Ishtiaq
Ahmed at Ex.14, PW-5 Mr. Irshad Hussain
Civil Judge & Judicial Magistrate Karachi West at Ex.16, PW-6 Sagheer Ahmed at Ex.17, PW-7 Siddique
Ahmed Khan at Ex.19, PW-8 Zainul Abidin
(minor abductee) at Ex.20, PW9 Inspector Mohammad Babar at Ex.21 and PW-10 SIP
Muhammad Ishaque at Ex.24. Thereafter, prosecution
side was closed.
7. Statements of appellants/accused were recorded
u/s 342 Cr.P.C at Ex.26 and 27,
both the appellants claimed false implication in this case and denied the
prosecution allegations. They denied that they had kidnapped nephew of the
complainant namely Zainul Abidin
for ransom. Appellant Masood Alam
has raised plea that he has been involved in this case when he refused to pay
Rs.50,000/- as bribe to the police after his arrest.
Regarding identification parade, he replied that he was shown to the PWs before
holding of identification parade. Appellant Mohammad Shamim
raised similar plea for his involvement in this case on the refusal of payment
of bribe of Rs.50,000/- to the police. He has also
explained in his statement that before holding the identification parade, he
was shown to the witnesses at Police station. In question why PWs have deposed
against them? They replied that PWs are friends to each other and belonged to
MQM. They had demanded Bhatta from the appellants
they refused and they were involved in this case. Appellants did not lead any defence, however, examined themselves on oath in disproof
of prosecution allegations. Appellant Masood Alam has stated on oath that on 23.08.2006 he was called by
concerned police from his house, co-accused Shamim
was already present at police station. Police maltreated and involved him in
this case and a case u/s 13(d) Arms Ordinance was also registered against him.
He has further submitted that Inspector demanded Rs.50,000/- as bribe for his release to which he refused.
Appellant Mohammad Shamim stated that on 23.09.2006 some
workers of MQM came at his shop and demanded Bhatta
of Rs. 20,000/- and on his refusal he was handed over
to the police and police demanded Rs.50,000/- as bribe
on his refusal he was involved in this case and case u/s 13(d) of Arms
Ordinance was also registered against him.
8. On the conclusion of the trial, after
hearing the learned counsel for the parties, learned
Trial Court convicted and sentenced the appellants as stated above.
9. Mr. Sheraz
Ahmed Siddiqui Advocate for the appellants argued
that there was inordinate delay in lodging of the F.I.R. for which no plausible
explanation has been furnished; child witness/ abductee has not implicated
appellants in the commission of the offence; Appellants/accused were arrested
on 24.09.2006 and identification parade was held on 27.09.2006, for which no
plausible explanation has been furnished. Lastly, it is submitted that there
are major contradictions in the evidence of the prosecution witnesses and
prosecution case is full of doubts.
10. Mr. Khadim Hussain learned DPG argued that all the prosecution
witnesses have fully supported the prosecution case. Regarding minor boy who
was kidnapped, he argued that child aged about 5 years could not understand the
questions put to him by the Trial Court, no benefit
could be extended to the appellants by referring his evidence. He has argued
that appellants were picked up in the identification parade held through PWs Sagheer Ahmed and Siddique Ahmed.
Lastly he has argued that complainant had no motive to falsely implicate the appellants
in this case and no evidence in the defence has been
led by the accused to substantiate the plea that police demanded Rs.50,000/- each as bribe.
11. After hearing the learned counsel for the
parties, we have carefully scanned the entire evidence available on record.
12. Complainant Sagheer
Ahmed has deposed that abductee Zainul Abidin aged about 6 years is his nephew. On 25.08.2006, he
had gone to perform his duty in Steel Mill Karachi and his brother PW Siddique Ahmed had also gone to earn his livelihood in a
Suzuki pick-up. He returned back in the evening at 7:30 PM. His brother’s wife
informed him that boy Zainul Abidin
had gone to offer Zuhar prayers in Abdullah Mosque
but he has not retuned back. He was further told that his brother Siddique has already gone in search of his son in the
vicinity. They searched up to 10:30 PM, but no one succeeded. Thereafter, he
went to the police station Peerabad. Entry No.50
dated 25.08.2006 was made by Peerabad Police station.
Complainant got flashed news through cable operator on T.V and gave his Cell
No.0334-3228562 for contact if anybody had information about child. On
26.08.2006 at 2:00 pm, he received a call on his mobile, caller informed him
that minor boy Zainul Abidin
has been kidnapped and ransom of Rs.100,000/- was
demanded for his release. Complainant showed his inability for payment of such
amount on account of his weak financial position. Kidnappers reduced ransom demand
to Rs.50,000/-. On 28.08.2006 at 10:00 AM complainant
received mobile phone for making arrangement of the ransom else he was
threatened for murder of the boy. Complainant arranged the ransom of Rs.50,000/-. Thereafter he along with his brother Siddique at about 3:30 PM went at Ghaziabad graveyard near
Black Hills Orangi Town on motorcycle by taking the
ransom for the release of the boy. When they reached there they saw few persons
who were standing over the hill, one of the culprits while seeing complainant,
came down and enquired from the complainant about arrangement of the ransom.
Complainant replied in positive. Ransom of Rs.50,000/-
was paid. After payment of ransom the person who received the ransom gave
signal to somebody who was standing on the Hills released minor boy Zainul Abidin, boy was brought to
the home. On the same day at 10:00 PM, police was informed about release of the
boy after payment. Complainant in his evidence has stated that due to sense of
insecurity, he did not lodge the F.I.R. After 25 days of such incident another
child of Mohalla was kidnapped. Thereafter,
complainant came forward and lodged the report. On 24.09.2006 vide F.I.R.
No.190/2006 under Sections 365-A/34 PPC at PS Peerabad
against unknown persons. Inspector Babar of AVCC came to the house of the
complainant at 5:00 PM and he inspected the place from where boy was kidnapped.
Such mashirnama was prepared in presence of mashirs. He has further deposed that identification parade
was held before the Magistrate on 27.09.2006 and he had identified both the
appellants in the identification parade.
13. PW Siddique
Ahmed, who is father of the boy and brother of the complainant
has deposed that on the day of incident i.e. 25.08.2006 he had gone to earn his
livelihood and his brother PW Sagheer Ahmed had gone
to his duty at Steel Mill. Thereafter, he has narrated entire episode as
disclosed by complainant, disclosing all the material facts need not to repeat
the same. He has stated that after registration of the F.I.R. identification
parade was held before the Magistrate in which he had identified both the
appellants and clearly stated that appellant Shamim
had received the amount of ransom and appellant Masood
who had long beard, had released his son after receipt of the ransom from his
custody.
14. Boy abductee Zainula
Abidin has been examined by the Trial Court and Trial
Court has observed in the opening note that minor Zainul
Abidin was not capable to understand the questions
put to him by the Court.
15. I/O Mohammad Babar has deposed that SSP
Investigation entrusted investigation of this case to him. He received
information that accused persons involved in this case have already been
arrested by Pakistan Bazar Police Station in some other case and they were
confined in the lock up of the police station. On such information, he went to
the Police Station Pakistan Bazar along with his subordinate staff and formally
arrested the accused Masood Alam
and Mohammad Shamim in this case and interrogated
them. He has further stated that during interrogation accused admitted guilt.
On 26.09.2006, he moved an application before Civil Judge & Judicial
Magistrate Karachi West for holding identification parade through complainant Sagheer Ahmed and his brother PW Siddique.
On 27.09.2006 complainant and PW Siddique identified
both the appellants in identification parade. He recorded 161 Cr.P.C statements of PWs and after usual investigation submitted
the Challan against appellants/accused before
Administrative Judge, Anti-Terrorism Courts Karachi.
16. Mr. Irshad Hussain Civil Judge & Judicial Magistrate, Karachi West
conducted the identification parade of the appellants through complainant Sagheer Ahmed and P.W Siddique. He
has deposed that on 26.09.2006 PI Babar moved an application for holding identification
parade of appellants. On 27.09.2006, he held identification parade of the
appellants through the above named P.Ws, who correctly identified the
appellants.
17. PI Irfan Ahmed
Khan stated that on 24.09.2006 he interrogated the appellants already arrested
in Crime Nos. 171 & 172 of 2006, who disclosed that they had kidnapped two
children out of them one was child Zainul Abidin. He enquired from Peerabad
P.S and upon confirmation of registration of F.I.R. he arrested both the
appellants in both the crimes in presence of mashirs.
18. SIP Ali Akber mashir of the arrest of accused stated that accused were
arrested in his presence.
19. SIP Ali Mohammad has stated that Inspector
Babar inspected the place of captivity of child on the pointation
of accused in his presence where abductee boy was confined by the accused
persons. Such mashirnama was prepared in his presence.
20. PW Ishtiaq Ahmed stated
that on 28.09.2006 PI Babar came to his house and in company of complainant Sagheer Ahmed they proceeded
towards place where complainant paid ransom and got released his son. Such mashirnama was prepared in his presence.
21. Evidence of the complainant and his brother
is trustworthy and reliable for the reasons that they had no motive to falsely
implicate the appellants in this heinous crime. Payment of ransom is also
established by cogent and confidence inspiring evidence. Both appellants were
identified by complainant and his brother in the identification parade held
before Civil Judge & Judicial Magistrate, so also in trial Court no
inherent defect in the evidence of the prosecution witnesses or in the
identification parade has been pointed out. Despite lengthy cross-examination,
not a single major contradiction has come on record. Delay in lodging of F.I.R.
has been fully explained. The approach of the Court in the matter like the case
in hand should always be dynamic and if the Court is satisfied that offence has
been committed in the manner in which it has been alleged by the prosecution
and the same is proved, the technicalities should be overlooked without causing
miscarriage of justice. Plea has been raised that police demanded Rs.50,000/- bribe from the appellants and on their refusal they
have been challaned in this case. Such plea appears
to be without substance and after thought and the same has also not been
substantiated by producing the defence. Child
witness/victim could not understand the questions of trial Court,
therefore, no benefit could be extended to appellants on the basis of evidence
of child witness. We have no reason to disbelieve evidence of complainant and
his brother, they have categorically stated that after receipt of ransom Rs.50,000/- appellants released minor boy.
19. In the view of above evidence on record, we
hold that prosecution has proved its case against the appellants beyond any
shadow of doubt, learned Trial Court has rightly appreciated the evidence
according to the settled principles of law and finding of conviction recorded
by the Trial Court against the appellants vide judgment dated 11.02.2008 requires
no interference. Consequently, the aforesaid appeals are without merits and the
same are dismissed.
JUDGE
JUDGE
Gulsher/PA