THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No. 35 of 2010

Confirmation Case No. 09 of 2010

Present: Mr. Justice Muhammad Ali Mazhar

Mr. Justice Naimatullah Phulpoto

JUDGMENT

Date of Hearing : 26.11.2014

Date of Judgment : 23.12.2014

Appellants : Mr. Raja Hassan Nawaz Advocate for Appellants Orangzeb son of Gul Sanobar Khan and Ghulam Rasool son of Guloo Jan

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Mr. Farid Gul Khan and Mr. Taj Fareen Khan Advocates for Appellants Ahsanullah son of Amanullah and Amanullah son of Fay Salab

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Respondent : Mr. Abrar Ali Khichi, APG for State

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NAIMATULLAH PHULPOTO, J.- Through this judgment, we intend to dispose of Special Criminal Anti-Terrorism Jail Appeal No. 35 of 2010 filed by appellants Orangzeb, Ghulam Rasool, Ahsanullah and Amanullah as well as Confirmation Reference No. 09/2010, which arise out of judgment dated 31^st July 2010 passed by learned Judge, Anti-Terrorism Court No. I, Karachi in Special Case No. 65 of 2009, whereby the learned Judge had convicted and sentenced the appellants as under:

(i) Accused Orangzeb son of Gul Sanobar Khan, Ghulam Rasool son of Guloo Jan, Amanullah son of Fay Salab and Ahsanullah son of Amanullah u/s 7(a) of ATA, 1997 r/w 302/34 PPC awarded death sentence and fine of Rs.2 lacs each, out of which 50% shall be paid to the bereaved family as required u/s 544-A Cr.P.C and in default of payment of fine, accused to suffer R.I for 02 years each.

(ii) All the above named accused were also convicted u/s 7(e) of ATA, 1997 r/w section 365-A/34 PPC and sentenced to “imprisonment of life” to all of them and forfeiture of their properties was ordered to the extent of Rs.1,00,000/- each.

2. The brief facts of the prosecution case are that on 15.08.2009 at 2320 hours complainant Ghazaim Khan son of Sajjan Khan lodged FIR at P.S Sachal, Karachi, alleging therein that on 14.08.2009, he was present at his shop along with two sons. At 1:45 pm, his son Shah Faisal (now deceased) informed the complainant that he was going to Al-Asif Square by taking his cloths to the Tailor Master. Complainant went to his house along with younger son namely Shah Iran by closing shop at 6:00 pm. He enquired from his wife about Shah Faisal, to which she replied that he had not returned home. Thereafter, it is alleged that complainant tried to contact his son Shah Faisal on his mobile 0332-3477543, the mobile was switched off. The complainant continued his search. At 11:15 pm, his cell number was attended by some other person, who talked to the complainant in Pashtu. Complainant was informed that his son had gone with a person when he would return back, he would call to the complainant. Thereafter, mobile was again switched off. At 7:30 am, the complainant gave a ring to the mobile of his son, it was attended by a person, who informed the complainant that his son has been shifted to Balochistan and Rs. 1 Crore were demanded as ransom for his release, else threat of murder of his son was issued. Complainant has further stated that on the same evening at 4:15 pm, his contact was established with the same person, who had demanded ransom for the release of his son, who demanded Rs.50 lacs for the release of his son. Complainant expressed his inability to make the arrangement of such huge amount. Caller threatened him that in case of non-payment of such ransom, his son would be murdered. Complainant lodged FIR at PS Sachal on 15.08.2009 at 2320 hours. It was recorded vide Crime No. 433/2009 for offences under Sections 365-A/34 PPC.

3. After registration of the FIR, investigation was entrusted to SIP Bashir Ahmed of AVCC. On the same day, he along with HC Muhammad Akram visited place of vardat, on the pointation of complainant and prepared such mashirnama, recorded 161 Cr.P.C statements of P.Ws Gul Sabat Khan, Shah Iran and HC Akram. On 17.08.2009, SIP Muhammad Aslam informed the I.O that accused Ghualm Rasool, Ahsanullah and Amanullah have been arrested in Crime No. 530/2009, who were also involved in Crime No. 433/2009 registered at P.S Sachal. Thereafter, I.O interrogated accused Ghualm Rasool, Amanulllah and Ahsanullah in this case and they admitted their guilt and disclosed the name of co-accused Orangzeb. He arrested above named accused on same date in this case in presence of mashirs and prepared such mashirnama. I.O received investigation of Crime No. 530/2009 registered under Section 302/34 PPC at P.S Sohrab Goth. He recorded statements of P.Ws, SIP Muhammad Aslam and Naeem Pervaiz. On 18.08.2009, he sent case property to the Chemical Examiner through SSP for analysis. On 19.08.2009, I.O went to the shop of the complainant and complainant took the I.O to the place, where he had delivered ransom amount. Mashirnama of such place was prepared in presence of mashirs. Thereafter I.O went to Edhi Centre, Sohrab Goth along with complainant, P.Ws Dost Muhammad and Khawaz Mohammad. Clerk of Edhi Centre showed photograph to the complainant Ghazaim Khan, he identified the photograph of his son. Such mashirnama was prepared in presence of mashirs and I.O recorded statements of Ghazaim Khan, Dost Muhammad and Khawaz Muhammad under Section 161 Cr.P.C. On 20.08.2009 on the pointation of accused Ahsanullah, I.O arrested co-accused Orangzeb from Qasba Colony Bus Stop and prepared mashirnama of his arrest in presence of mashirs. He recovered mobile phone Nokia 5610, SIM No. 0332-3477546, his original NIC, Rs. 350/- and photocopy of NIC of one Shah Wali. I.O sealed mobile phone and SIM at spot. Accused Orangzeb was interrogated. During interrogation, he prepared to return ransom amount, which he had kept in box at the house of his sister situated at New Islamia Qasba Colony. Accused Orangzeb led the police party in presence of mashirs and produced cash of Rs.70,000/- lying in a box in khaki envelop. On 24.08.2009, I.O submitted an application before the learned Judicial Magistrate-VI, Malir Karachi, for recording statements of P.Ws Gul Sabat Khan and Badshah Zadain u/s 164 Cr.P.C. The same were recorded by Judicial Magistrate on 25.08.2009 in presence of accused. On 26.08.2009 accused Ahsanullah and Ghulam Rasool voluntarily prepared to lead the I.O and mashirs to the place D-7 Bus Stop and pointed out that it was the place from where they had kidnapped the deceased. Such mashirnama was prepared in presence of the mashirs. During investigation, accused Orangzeb and Ghulam Rasool prepared to lead the I.O to the House No. 189, Block-A, Street No.9 at Yousuf Sahib Khan village and stated that it was the house where deceased was in their captivity and was murdered. I.O prepared such mashirnama in presence of the mashirs. On 27.08.2009 at 5:00 pm, I.O collected data of mobile cell No. 0333-3626514 from Inspector Masroor Aijaz, Incharge of Computer Section, AVCC and he prepared such mashirnama in presence of mashirs. On 01.09.2009, I.O deposited three jars in the office of Chemical Examiner for report. During investigation, accused Orangzeb disclosed to I.O that Shah Wali was also one of the culprits of the incident, but I.O could not arrest him during investigation.

4. After usual investigation, challan was submitted against the accused in the Anti-Terrorism Court under the above referred Sections.

5. Appellants/accused pleaded not guilty to the charge and claimed to be tried.

6. At trial, the prosecution in order to prove its case examined the following witnesses:

1. P.W-1 complainant Ghazaim Khan at Ex.7.

2. P.W-2 ASI Mushtaq Ahmed Naich at Ex.8.

3. P.W-3 Mohammad Ali at Ex.9.

4. P.W-4 Rahim Ali Baloch at Ex.10.

5. P.W-5 Zulfiquar Ali Siyal at Ex.11.

6. P.W-6 Mohammad Aziz Jatt at Ex.12.

7. P.W-7 Dost Mohammad at Ex.13.

8. P.W-8 Mashroob Khan at Ex.14.

9. P.W-9 Mr. Mohammad Aslam Shaikh, Civil Judge & Judicial Magistrate at Ex.15.

10. P.W-10 Said Kamal at Ex.16.

11. P.W-11 Gul Sabat Khan at Ex. 17.

12. P.W-12 Badshah Zadain at Ex.18.

13. P.W-13 ASI Wazir Ahmed Khokhar at Ex.19.

14. P.W-14 ASI Adeel at Ex.20.

15. P.W-15 Dr. Mohammad Saleem, at Ex.22.

16. P.W-16 ASI Ghulam Qadir at Ex.23.

17. P.W-17 Inspector Ch. Manzoor Ahmed at Ex. 24.

18. P.W-18 SIP Mohammad Aslam at Ex. 25.

19. P.W-19 I.O Inspector Bashir Ahmed at Ex.26.

Thereafter, prosecution side was closed at Ex-27.

7. Statements of the accused were recorded u/s 342 Cr.P.C at Ex. 28 to 31, in which all the accused have claimed their false implication in this case and denied the prosecution allegations. Accused Orangzeb has denied that he had led I.O and mashirs to house of his sister from where he had produced ransom amount lying in a box. Accused Orangzeb in a question what else he has to say, has replied that he is a handicapped person and I.O has falsely involved him in this case at the instance of the complainant. Accused Ghualm Rasool has also denied all the incriminating pieces of evidence put to him in his statement. He has also raised plea that he is a disabled person and is a beggar. Accused Ahsanullah has also denied the prosecution allegations and stated that he has no knowledge regarding this case. Accused Amanullah has also denied all the incriminating pieces of evidence put to him in his statement and has raised plea that he was arrested along with his son from his house at mid night time. In a question what else he has to say, he has replied that he is old and infirm person and having 13 children and is a beggar. All the accused did not lead any defense and declined to give statement on oath in disproof of prosecution allegations.

8. The learned Judge, Anti-Terrorism Court, after hearing the learned counsel for the parties and assessment of the evidence, convicted the appellants/accused and sentenced them as above.

9. The learned Trial Court forwarded a Murder Reference to this Court for confirmation or otherwise of death sentences awarded to the appellants.

10. The appellants/accused being aggrieved with the impugned judgment of the learned Trial Court, filed the aforesaid Criminal Appeal before this Court.

11. We have carefully heard the learned counsel for the appellants/accused, learned APG for State and have perused the evidence minutely. Case of prosecution is based upon following pieces of evidence:

(i) Last seen evidence.

(ii) Medical evidence.

(iii) Kidnapping for ransom.

(iv) Pointation of house where deceased was murdered by accused.

(v) Recoveries.

12. The sole point for determination in this appeal is that, whether the appellants/accused were rightly convicted for the offences charged?

13. To prove the unnatural death of deceased, prosecution examined Dr. Muhammad Saleem, MLO, PW-15, he has deposed that on 16.08.2009, he was posted as MLO in Abbasi Shaheed Hospital Karachi. On the same day at 3:15 pm unknown dead body was brought by ASI Wazir Ahmed of PS Sohrab Goth for postmortem examination and report. He started postmortem at 3:20 pm and completed at 4:45 pm. On external examination, it was found by Medical officer that it was a dead body of a male aged about 32/35 years. Due to decomposition, identification marks on skin could not be ascertained. On internal examination following damages were noticed by the Medical officer:

1. Major part of the scalp and scalp hear found detached and missing due to decompositional changes. Tiny remnants were seen.

2. The grown teeth upper right and left 8, 8, lower right and left 8, 8. All teeth present in the sockets but slightly loosed.

3. Both upper limbs tied together with rope at the level of wrist joint with imprint of tying rope.

4. Both lower limbs tied together with rope at the level of mid lack with imprint by tying of rope.

5. Skin peeled off at places.

6. Maggots were crawling in the orifices and all over the body.

7. Ligature mark of red coloured electric wire seen at the level of fourth cervical vertebra on neck. Ligature mark also seen all around the neck. Red coloured wire used for ligation of neck, preserved, sealed and handed over to police along with rope used for ligation for upper and lower limbs.

The duration of death and postmortem was 4 to 5 days.

On external as well as internal examination of the dead body, medical officer was of the opinion that death of deceased had caused due to Asphyxia leading to cardio respiratory failure resulting by construction of structures of the neck. Medical officer had taken viscera for chemical analysis and issued postmortem report.

14. Complainant Ghazaim Khan has narrated the entire episode of the incident at trial and stated that on 14.08.2009, he was present at his shop along with his sons Shah Iran and Shah Faisal (now deceased). At 1:45 pm, his son Shah Faisal informed the complainant that he was going to Al-Asif for stitching of his cloths. Thereafter, Shah Faisal went to Al-Asif. Complainant went to the home by closing shop at 6:00 pm and enquired from his wife about Shah Faisal. She replied that her son had not returned home. Complainant dialed number of his son 0332-3477543 from his Cell No. 0333-3626514, but mobile of his son was switched off. At 11:15 pm, complainant dialed cell number of his son, one person responded and informed the complainant that his son had gone down stairs and on his return he would talk to him. On 15.08.2009 at Fajjar time, complainant gave a call on the mobile of his son. At 7:30 am, mobile was attended by some person and he demanded ransom of Rs. 1 Crore for the release of his son and informed the complainant that his son has been shifted to Balochistan. In case of non-payment of the ransom, complainant was threatened that his son would be murdered. On 15.08.2009 at 4:15 pm, the cell number of his son was attended and demand of Rs.50 lacs was made from the complainant for the release of his son. Complainant was also informed that his son was crying in case ransom was not paid, his son would be done to death. On the same day, at 11:15 pm, complainant went to the police station and lodged the FIR. On 16.08.2009, he was sitting at his shop, one driver namely Gul Sabat came at his shop and told to the complainant that on 14.08.2009 at 2:00 pm, he had seen his son at Bus Stop No. D-7 at Sohrab Goth with two persons. He gave features of those persons and told that one person was having abnormal finger of hand and abnormal foot and nose of second culprit was cut and they were taking his son to the Highway. Complainant received a call on his mobile from cell No. 0303-2983031 at 5:00 pm. Demand of ransom was repeated from the complainant to which he replied that it was huge amount and he was unable to make such arrangement. Lastly, complainant has deposed that deal was finalized in Rs. 70,000/- and complainant enquired from the accused to whom the ransom amount was to be delivered. Complainant was informed that a person namely Amanullah was sitting at Sohrab Goth Bridge, he should handover amount to him then his son would be released. Complainant reached at pointed place at 8:00 pm and enquired from a person, who was present there about his name to which he disclosed his name as Amanullah. He handed over Rs.70,000/- to him and made a call to the person, who asked him to deliver ransom to Amanulah for release of his son. He replied that he would get his son released within 1 or 2 hours. After sometime, again complainant called to the caller, who replied him that he should go to Ahsanabad Chowki. He went there but his son was not there. Thereafter, complainant has deposed that he came back to Sohrab Goth and made call to said accused. He replied that he should go to Ahsanabad police Chowki, where his dead body has been brought from Faqira village. He went there and came to know that dead body was brought there and it was lying in cold storage of Edhi Trust. Then he proceeded to Edhi cold storage, he was informed that photograph of deceased was available. As the dead body was decomposed, same has been buried. Complainant has further deposed that he identified photograph of his son. On 17.08.2009, in the morning, he went to Ahsanabad Chowki, where ASI Wazir informed him that dead body of his son was brought at Chowki and ASI showed the complainant wrist watch, Shalwar Qamiz, one silver ring, one white Banyan and one cloth with brown strips. Complainant identified the articles, which belonged to his son. On 17.08.2009 complainant went to Faqira Village in search of culprits of his son. He saw accused Amanullah there to whom he had delivered ransom. He was sitting with two other accused persons at Ajmair Tower Quetta Hotel. One culprit’s nose was cut and another was with abnormal finger of hand and abnormal foot. Same features were disclosed to the complainant by PW Gul Sabat. While he was returning he saw police mobile. He informed the police that accused of his son were sitting at Quetta Hotel. Police arrested all the three accused namely Ahsanullah, Amanullah and Ghulam Rasool and prepared such mashirnama in presence of mashirs, which he produced at Ex.7/D. Complainant further deposed that on 19.08.2009 P.W Badshah-u-Zdin came at his house for condolence and disclosed that on 14.08.2009 at 3:00 pm, he was sitting at Chakar Hotel, where son of the complainant along with four persons was seen by him and the features of those persons were disclosed by PW Badshah Zadain to the complainant. On 19.08.2009, he had shown to the police place where he had paid the ransom to the accused Amanullah. Such mashirnama was prepared by the I.O in presence of the mashirs. Complainant has further deposed that he had identified photograph of his son at Edhi Centre and he identified the accused persons present in the Court. PW-2 Mushtaq Ahmed has stated that on 15.08.2009, complainant Ghazaim Khan appeared at police station and he lodged FIR of this case. Muhammad Ali PW-3, has stated that on 16.08.2009, he was going from his house to his Estate Agency office, at 1.30 pm, he saw some persons, who had gathered in Block-A street No. 09, House No. 189 and on inquiry, he came to know that dead body was lying in the house. He gave such information to the Ahsanabad police chowki. Rahim Ali P.W-4, has deposed that on 02.08.2009, he was present at his house. At 3:30 pm one lame man came to him along with Zulfiqar and asked for a house on rent. He gave him house on rent in Yousuf Sahib Khan village at the rate of Rs. 3000/- per month and Zulfiqar got Rs. 500/- as commission. Then he handed over key to said lame person. He had identified that person as Orangzeb present before the trial court. Zulfiqar Ali P.W-5, has stated that on 02.08.2009, he was present at his house in Faqira Goth. It was 3:00 pm when accused Orangzeb came to him for a house on rent and accused Orangzeb got the house of one Rahim Ali on rent and he got Rs. 500/- as commission. He has also identified Orangzeb to be the same person, to whom house as given on rent. Muhammad Aziz P.W-6 has stated that on 16.08.2009, he reached at the place of recovery of dead body situated at Gali No. 09, Block- A, House No. 189, from where a dead body was recovered by ASI Wazir. Such mashirnama was prepared and he acted as mashir. Dost Muhammad PW-7, has deposed that on 19.08.2009 at 5:00 pm, he was sitting under the bridge of Sohrab Goth, at that time one police officer Bashir and one private person namely Ghazaim Khan appeared where Ghazaim Khan disclosed that he had paid Rs.70,000/- to the accused person at that place under the bridge. Such mashirnama was prepared. He acted as mashir of the place of payment of ransom. Mashroob Khan P.W-8 has deposed that on 26.08.2009 at 6:00 pm, he was sitting at Manzoor Chapra Hotel situated at D-7 Bus Stop, where one mobile appeared and two accused person got down from the said mobile. On the inquiry of the police personnel accused disclosed that they had kidnapped Shah Faisal from there on 14.08.2009 for ransom at 2:00 pm and took him to Safwan village. Such mashirnama was prepared by the police and he acted as mashir. Police asked P.W Mashroob Khan to reach at village Yousuf Sahib Khan. Above named P.W followed the police mobile where accused persons got down from the police mobile and pointed out House No. 189 in Gali No. 9. Accused disclosed that they had detained kidnapee there. Police opened the door and entered into the house and accused disclosed that they had murdered Shah Faisal in that house. Such mashirnama was prepared by the police. PW Mashroob Khan identified accused Ghulam Rasool, Ahsanullah and Orangzeb before the trial court. Mr. Muhammad Aslam Judicial Magistrate Malir, Karachi P.W-9, has deposed that on 24.08.2009 I.O submitted application before him for recording the 164 Cr.P.C statements of P.Ws Gul Sabat Khan and Badshah Zadain in Crime No. 433/2009 under Sections 365-A/302/34 PPC. On 25.08.2009, I.O produced accused Ghulam Rasool Ahsanullah and Orangzeb before him. After issuance of the notice to the accused, he recorded 164 Cr.P.C statements of P.Ws Gul Sabat Khan and Badshah Zadain and produced before the trial court. Said Kamal P.W-10, has deposed that on 20.08.2009, he went to meet his relatives at Qasba Colony. He was returning back from Qasba Colony at 7:00 pm and was waiting for transport at Qasba Mor, one police mobile appeared there. Some police officials got down from the mobile van. One lame person was standing near P.W-Said Kamal. Police officer enquired his name to which lame person disclosed his name as Orangzeb son of Sanobar. He was arrested in his presence and his personal search was conducted. During his search one mobile phone Nokia 5610, SIM No. 0332-3477543 and cash of Rs. 350/- were recovered so also two NICs out of which one original was of the accused Orangzeb and the photocopy of another person namely Shah Wali. 3/4 other cards were also recovered from accused Orangzeb. Such mashirnama was prepared. He acted as mashir and co-mashir was HC Sher Dad. He was also mashir of ransom amount of Rs.70,000/- which was recovered from the house of the sister of accused Orangzeb situated in Gali No. 4 Qasba Colony. Gul Sabat Khan P.W-11, has deposed that on 14.08.2009 he was present on Chhapra Hotel Sohrab Goth D-7 Bus Stop. It was 2:00 pm, when he saw deceased Shah Faisal was going with accused persons towards Super Highway. He has given the description of those persons as one person had a long finger of his hand and nose of another person was cut and his face was disfigured. On 16.08.2009 at 11:00 am, P.W Gul Sabat Khan went to the shop of the complainant as he had to purchase some spare parts and he informed the complainant that he had seen his son Shah Faisal with two person, in the meanwhile Inspector Bashir appeared at the shop of complainant and collected information regarding incident. He has further stated that his statement was recorded before Judicial Magistrate in this case. Above named P.W in a question to the trial Court while recording his evidence has replied that accused Ghulam Rasool and Ahsanullah were the same persons, who were seen by him with deceased Shah Faisal. Badshah Zadain P.W-12 has deposed that on 14.08.2009 at 3:00 pm he was sitting at the shop of his maternal uncle situated at super highway where he saw deceased Shah Faisal who was going on foot with four persons. He has also given the description of those persons. He deposed that one person was lame, nose of another accused was cut and third person was having long finger of the hand. All the four accused persons were proceeding to Faqira Goth. On 19.08.2009 he went to his shop where he came to know that Shah Faisal has been kidnapped and has been murdered. Then he went to the house of complainant situated in Hassan Noman Colony for condolence purpose and disclosed to the complainant that he had seen his son in the company of four person. Features were disclosed by him to the complainant. He was informed by the complainant that three accused have been arrested by the police. Thereafter police recorded his statement and his statement was also recorded before the Magistrate. He had also identified accused Orangzeb, Ghulam Rasool and Ahsanullah. ASI Wazir Ahmed PW-13, has stated that on 16.08.2009 he was posted at Police Post Sohrab Goth. At that day at 1:30 pm he received call on his mobile of one Muhammad Ali Brohi and he was informed that a dead body is lying in the house of one Abbas Baloch situated in Street No. 09, Block-A, Faqira Goth. He made such entry in the Roznamcha which he produced at Ex.19/A and proceeded to the pointed out and entered into the house of Abbas Baloch where he found dead body lying in the room. He also noticed one electric wire wrapped around the neck of the deceased and one white bed sheet was tied around the neck of the dead body. He prepared inquest report in presence of the mashirs. During examination of the dead body he noted one wrist watch and a ring of the dead body which he sealed and gave a call to Edhi Ambulance and shifted dead body to the Abbasi Shaheed Hospital. He had also submitted application to the MLO for issuance of the certificate regarding cause of death of deceased. He had also received clothes of the deceased and three jars from Medical officer. Thereafter he sent clothes of the deceased, one sealed electric wire and rope for chemical examination. After postmortem he shifted dead body to the Edhi Centre and returned back to the police station where he lodged FIR bearing crime No. 530/2009 dated 16.08.2009 u/s 302 PPC. He handed over belongings of the deceased to the Investigation Branch. On 17.08.2009 at 9:30 am, one Ghazaim Khan appeared at police post and enquired him about dead body, which was recovered on 16.08.2009. ASI showed the clothes, wrist watch and ring of deceased to Ghazaim Khan. Articles were identified by Ghazaim Khan which belonged to his son. On 17.08.2009, he has deposed that complainant Ghazaim Khan met him near Faqira Goth at 12:00 Noon and informed him that accused involved in the murder of his son were present near Ajmair Tower and accompanied him to the place pointed out by the complainant. Accused persons namely Ahsanullah, Amanullah and Ghulam Rasool were sitting at hotel, they were arrested by ASI in presence of mashirs. Such mashirnama was prepared. He has clearly stated that accused Amanullah, Ahsanullah and Ghulam Rasool present in the Trial Court were same. ASI Adeel PW-14 has deposed that on 17.08.2009, he was posted in AVCC. On that day Inspector Bashir Ahmed I.O of Crime No. 433/2009 under Section 365-A PPC registered at PS Sachal appeared and arrested accused Amanullah, Ahsanullah and Ghulam Rasool, who were already under arrest in Crime No. 530/2009. Mashirnama was prepared in presence of the mashirs. Ghulam Qadir PW-16 has stated that on 17.08.2009, he was posted as ASI at P.P Ahsanabad. On that day, at 9:15 am, one Ghazaim Khan appeared at police post where ASI Wazir had showed him clothes of the deceased and prepared such mashirnama. Complainant had also identified wrist watch and ring of his deceased son. He has further stated that on the same day, he along with ASI Wazir were busy in patrolling when they reached near Ajmair Tower, complainant Ghazaim Khan met the police party and disclosed to ASI Wazir that killers of his son were sitting at Ajmair Tower Hotel. Police party proceeded to the hotel along with complainant and on his pointation accused Amanullah, Ahsanullah and Ghulam Rasool were arrested and such mashirnama was prepared. Inspector Ch. Manzoor Ahmed PW-17 has deposed that on 27.08.2009, he was posted at AVCC. On that day, SIP Bashir Ahmed collected mobile phone data from 14.08.2009 to 18.08.2009 of mobile phone No. 0333-3626514 of complainant and mobile phone No. 0332-3477543 and 0303-2583031, which were used for demanding ransom. SIP Muhammad Aslam PW-18 has deposed that on 16.08.2009, he had conducted investigation of Crime No. 530/2009 under section 302/34 PPC of PS Sohrab Goth. Inspector Bashir Ahmed PW-19 has conducted the entire investigation in this case. He has deposed that on 16.08.2009, he along with HC Muhammad Akram visited place of vardat, on the pointation of complainant and prepared such mashirnama. I.O recorded 161 Cr.P.C statements of P.Ws Gul Sabat Khan, Shah Iran and HC Akram. On 17.08.2009, SIP Muhammad Aslam informed the I.O that accused Ghualm Rasool, Ahsanullah and Amanullah have been arrested in Crime No. 530/2009 under section 302 PPC, who were also involved in Crime No. 433/2009 registered at P.S Sachal. Thereafter, I.O interrogated accused Ghualm Rasool, Amanulllah and Ahsanullah. During interrogation, accused admitted kidnapping of Shah Faisal for ransom and his murder. They also disclosed that co-accused Orangzeb was also involved with them in the commission of offence. He arrested above named accused in presence of mashirs and prepared such mashirnama. I.O sent case property received from I.O of Crime No. 530/2009 to the chemical examiner after seeking permission from the SSP. I.O has further deposed that on 19.08.2009, he went to the shop of the complainant and took him to the place, where he had delivered ransom amount. Such mashirnama was prepared in presence of mashirs. Thereafter, I.O went to Edhi Centre, Sohrab Goth along with complainant, P.Ws Dost Muhammad and Khawaz Mohammad. Clerk of Edhi Centre showed photograph of the deceased to the complainant Ghazaim Khan, he identified the photograph of his son and stated that it was the photograph of his son. Such mashirnama was prepared by the I.O in presence of mashirs. I.O recorded 161 Cr.P.C statements of P.Ws. I.O has further stated that on 20.08.2009, he had arrested co-accused Orangzeb from Qasba Colony on the pointation of Ahsanullah and prepared such mashirnama of his arrest in presence of mashirs. He searched accused Orangzeb and recovered mobile phone Nokia 5610, SIM No. 0332-3477546, his original NIC, cash of Rs. 350/- and photocopy of NIC of one Shah Wali. I.O sealed such articles at spot in presence of the mashirs. Accused Orangzeb was interrogated. During interrogation, I.O has stated that he prepared to return ransom amount, which he had kept in box in the house of his sister situated at New Islamia Qasba Colony. Thereafter, accused Orangzeb led the police party and mashirs to the house of his sister and produced cash of Rs.70,000/- lying in a box in khaki envelop. He has further deposed that on 24.08.2009, he submitted an application before the learned Judicial Magistrate, Malir for recording statements u/s 164 Cr.P.C of P.Ws Gul Sabat Khan and Badshah Zadain. The same were recorded by Judicial Magistrate on 25.08.2009 in presence of accused. I.O has further deposed that on 26.08.2009 accused Ahsanullah and Ghulam Rasool voluntarily prepared to lead the I.O and mashirs to the place D-7 Bus Stop where they pointed out the place from where they had kidnapped Shah Faisal. Such mashirnama was prepared by I.O in presence of the mashirs. I.O has further deposed that accused Orangzeb and Ghulam Rasool prepared during interrogation prepared to lead police party and mashirs to House No. 189, Block-A, Street No.9 at Yousuf Sahib Khan village where they had detained Shah Faisal and he was done to death. They led the police party to the pointed house, thereafter, such mashirnama was prepared in presence of the mashirs. I.O has stated that on 27.08.2009, he collected mobile phone data of Cell No.0333-3626514 from Inspector Masroor Aijaz, Incharge Computer Section, AVCC and he prepared such mashirnama. On 01.09.2009, he deposited three jars in the office of Chemical Examiner.

15. On the completion of the investigation, he submitted challan against the accused. It was entire prosecution evidence, which has been brought on record.

16. Learned counsel for the appellants mainly contended that prosecution case is highly doubtful; there was delay in lodging of F.I.R., last seen evidence is a weak piece of evidence and the same is not reliable. It is also argued that accused Ahsanullah and Ghulam Rasool jointly pointed out the place from where they had kidnapped Shah Faisal and such pointation is doubtful. It is argued that ocular evidence is contradictory to medical evidence. It is also argued that recovery of the ransom amount from the sister’s house of accused Orangzeb was in violation of Section 103 Cr.P.C and no reliance can be placed upon such recovery. It is further submitted that all the prosecution witnesses are interested and on friendly terms with the complainant. Lastly, it is contended that dead body was decomposed and identification through photograph was highly doubtful. In support of their contentions, reliance has been placed upon the case reported as: Yousif vs. The State (PLD 1988 Karachi 521), Daniel Boyd (Muslim Name SAIFULLAH) and another Vs. The State (1992 SCMR 196), Muhammad Hussain alias Hussaini Vs. The State (PLD 1995 Lahore 229), Ghulam Khan Vs. The State (2001 P.Cr.L.J 435), Ghulam Qadir and 2 others Vs. The State (2008 SCMR 1221), Ghulam Akbar and another Vs. The State (2008 SCMR 1064), Azhar Hussain Vs. The State (2009 YLR 671), Noor Muhammad Vs. The State and another (2010 SCMR 97) and Imran Haider and another Vs. The State and another (2014 YLR 980).

17. In the case of Muhammad Hussain alias Hussaini Vs. The State (PLD 1995 Lahore 229), the Lahore High Court has held that onus is always on the prosecution to prove its case and never shifts on the accused to prove his innocence.

18. In the case of Daniel Boyd (Muslim Name SAIFULLAH) and another Vs. The State (1992 SCMR 196), it has been held that nobody is to be punished unless proved guilty on the basis of reliable or true evidence and that benefit of every reasonable doubt is to go to the accused.

19. In the case of Yousif Vs. The State (PLD 1988 Karachi 521), it has been observed by this Court that where contradiction exists between medical report and ocular testimony, prosecution and not accused is obliged to clarify position. In case of conflict between two testimonies, medical evidence would be preferred.

20. In the case of Ghulam Khan Vs. The State (2001 P.Cr.L.J 435), it is held that provisions of section 103 Cr.P.C are mandatory. Non-association of private witnesses in recovery proceedings being a violation of Section 103 Cr.P.C would make the recovery doubtful especially when no reasons are given for effecting recovery without associating independent persons of the vicinity.

21. In the case of Ghulam Qadir and 2 others Vs. The State (2008 SCMR 1221), the Honourable Supreme Court has held that for the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity, creating reasonable doubt in the mind of a reasonable and prudent person, regarding the truth of charge, makes the whole case doubtful.

22. In the case of Ghulam Akbar and another Vs. The State (2008 SCMR 1064), the Honourable Apex Court has held that recovery witness was not resident of locality, but was a chance witness. Place of recovery was surrounded by 50/60 houses, but none was summoned from locality by police. Such recovery evidence was not worthy of any credence and could not be used against accused in circumstances.

23. In the case of Azhar Hussain Vs. The State (2009 YLR 671), learned Lahore High Court has held that none of prosecution witnesses of last seen had either seen the accused lastly in the company of the deceased or while entering into the house of the deceased or coming out of his house. Said evidence getting no corroboration and based on mere conjectures, surmises and probabilities could not be relied upon for conviction in a case of capital punishment.

24. In the case of Noor Muhammad Vs. The State and another (2010 SCMR 97), the Honourable Supreme Court has held that prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequence and not the defence.

25. In the case of Imran Haider and another Vs. The State and another (2014 YLR 980), the Lahore High Court has held that whole prosecution case was based upon circumstantial evidence and for basing conviction on circumstantial evidence, there should be interlinking chain of credible and cogent corroborative evidence available on record, which was missing in the case. Prosecution case was also lacking sufficient incriminating evidence.

26. Mr. Abrar Ali, learned APG argued that deceased was lastly seen by P.Ws Gul Sabat and Badshah-u-Zdin and they have given probable cause of their presence at the relevant point/place. It is also argued that P.Ws had also given the descriptions of the accused persons, who had taken deceased with them. It is contended that evidence of the witnesses, who had last seen the deceased in the company of accused inspires confidence. These witnesses had no motive to falsely implicate the accused in this case. It is also argued that recovery of ransom from accused Orangzeb on his pointation was admissible under the law and there are no major contradictions in prosecution evidence. Lastly, it is argued that prosecution has proved its case against the accused beyond any shadow of doubt.

27. We have come to the conclusion that prosecution has succeeded to prove its case against the appellants beyond any shadow of doubt for the reasons that incident had occurred on 14.08.2009 at 1345 hours and it was reported at P.S. Sachal on 15.08.2009 at 2320 hours. Complainant Ghazian Khan has fully explained the delay in lodging of F.I.R. and has stated that he was continuously making efforts to contact his son on his cell number but without any success. On 15.08.2009 at 0730 hours the cell number of his son was attended and demand of ransom was made from him and threat was issued for murder of his son in case, ransom was not paid, thereafter, he lodged the F.I.R, as such, delay in lodging of F.I.R. has been fully explained. Complainant has given entire episode of incident in detail. Complainant had received calls for ransom. He paid Rs.70,000/- ransom to accused Amanullah. Complainant identified photograph of his deceased son at Edhi Centre. He had also identified wrist watch, shalwar qamiz and ring of his son at police post. PWs Badshah-u-Zdin and Gul Sabat told the complainant that they had seen his son in the company of accused on 14.08.2009 and disclosed the features of accused. Complainant has given confidence inspiring evidence. He had no motive to falsely implicate the accused persons in this case. Nothing in his cross-examination came on record in favour of accused, hence we have no reasons to disbelieve him. In this case last seen evidence is very important piece of evidence with the prosecution. PW Gul Sabat Khan had categorically stated on that 14.08.2009 he was sitting at Chapra Hotel, Suhrab Goth, D-7 Stop, it was 02:00 PM where he had seen deceased Shah Faisal along with two persons proceeding to the superhighway. One of them had big finger of hand and another person’s nose was cut. On 16.08.2009 at 11:00 AM he went to the shop of complainant Ghazian Khan for purchasing the spare parts and he told to the complainant that he had seen his son in the company of two persons. PW Gul Sabat, who is driver by profession has given probable cause for going to the shop of the complainant for purchasing spare parts. In the cross-examination, no enmity whatsoever has been suggested by the accused for their involvement in this case. PW Gul Sabat Khan is independent prosecution witness, having no relationship with complainant or the deceased. His evidence is confidence inspiring, therefore, his evidence has rightly been relied upon by the trial Court. P.W Badshah Zadain had also seen the accused persons in the company of deceased on 14.08.2009 at 03:00 P.M. At that time, he was sitting at the shop of his maternal uncle near superhighway where he saw that deceased Shah Faisal who was going along with four persons. One of them was lame, another’s nose was cut, third person had long finger of hand. PW Badshah Zadain is a shopkeeper. On 19.08.2009, when he went to the shop and came to know that son of complainant, namely, Shah Faisal, after kidnapping for ransom has been murdered, he went to the complainant and informed him that he had seen his son on 14.08.2009 near superhighway with four accused persons. PW Badshah Zadain identified the accused persons in the Court. Despite lengthy cross-examination, nothing favourable to the accused came on record. PW Badshah Zadain is shopkeeper, complainant is also shopkeeper, sufficient reason has been shown by PW Badshah Zadain regarding his presence on 14.08.2009 at 03:00 P.M. near superhighway at the shop of his maternal uncle. We have no reasons to disbelieve the last seen evidence of both the PWs as they had no motive at all to falsely implicate the accused in this heinous crime. Evidence of PW Said Kamal is confidence inspiring, quite reliable and straightforward for the reasons that he has clearly stated on 20.08.2009 he was returning from Qasba Colony from his relatives. It was 03:00 P.M. when he was waiting for transport, one police mobile came there and a lame man, standing near Said Kamal, was arrested by the police. On inquiry he disclosed his name as Orangzeb and from his possession mobile phone Nokia 5610 and SIM No.03323477547 and Photostat copy of CNIC of one Shah Wali were recovered. This witness has clearly deposed that accused Orangzeb voluntarily prepared to lead the police party to the house of his sister, situated in Street No.4, Qasba Colony. IO took PW Said Kamal to the place of recovery, it was pointed out by accused Orangzeb and Orangzeb produced Rs.70,000/- from a wooden box lying in a room in Khaki envelop, which he had recovered as ransom from the complainant. In the cross-examination, even no enmity has been suggested. Nothing has been brought on record to discard the evidence of recovery. Wooden box lying in the house of the sister of accused Orangzeb was in his exclusive knowledge and was recovered on his pointation. Such piece of evidence has been fully established by the prosecution. After arrest appellants/accused Ahsanullah and Ghulam Rasool pointed out the place from where they kidnapped deceased Shah Faisal. It is proved by cogent evidence that accused Ghulam Rasool and Ahsanullah while in the police custody led the police party to Yousuf Sahab Khan village and pointed out House No.189, Street No.9, in the name of Abbas Baloch and stated that they had detained and killed the deceased in that house. Appellants have not furnished any explanation as to why they pointed out house where deceased was murdered. It may fairly be presumed that appellants killed deceased. Prosecution has also proved that accused Orangzeb got the house on rent through PW Zulfiqar Ali where deceased was murdered. Accused Ahsanullah and Ghulam Rasool had also led the police party to the place from where they kidnapped the deceased for ransom. The information furnished by the appellants to the investigation officer can be used against them under Article 40 of the Qanun-e-Shahadat, 1984, as held in the case of Nazir Shahzad and another versus the State (2009 SCMR 1440). The chain of events has been completed to establish the guilt of accused persons in this case. It is also established through mobile phone data from 14.08.2009 to 18.08.2009 that accused made calls on Cell No.03333626514 of complainant through mobile phone No.03323477543 and 03032583031. This documentary evidence has been produced at trial, which connected the appellants/accused in the commission of offence. A credible corroboration has come on record. Learned defence counsel has argued that there are material contradictions between the ocular and medical evidence but in this case murder was un-witnessed, no material contradiction has been specifically pointed out by the defence counsel. In the case of Ghulam Hussain Soomro versus the State (PLD 2007 Supreme Court 71), the Honourable Supreme Court has observed that, “the crimes like kidnapping for ransom have become rampant in our society, which is an unfortunate state of affairs and can only be deprecated. Such kind of criminal acts must be dealt with iron hands and event if there are minor discrepancies and deviations in the evidence or shortfalls on the part of investigating agency, the Courts should always be dynamic and pragmatic in approaching the true facts of the case and drawing correct and rational inferences and conclusions arising out of the facts and circumstances of each case.” The case law relied upon by the learned advocates for the appellants/accused is quite distinguishable from the facts and circumstances of this case.

28. For the above stated reasons, we have come to the conclusion that learned trial Court has rightly believed the prosecution evidence. We have no reason to disbelieve such strong and confidence inspiring evidence. Honourable Supreme Court of Pakistan in the case of Mobashar Ahmad Vs. The State (2009 SCMR 1133) has relied upon last seen evidence of independent witnesses and observed as under:

We would first deal with the case of appellant Muhammad Sharif. Regarding the last-seen evidence, it would be seen that P.W. Shabbir Ahmad's presence at the taxi stand has been established in cross-examination since he worked as an auto-electrician and used to repair the taxis etc. He is an independent witness bearing no relationship at all with the complainant or the deceased except that he knew the latter. He has given a truthful and confidence inspiring narration of the incident i.e. the boarding of the deceased's car by the two appellants as well as two other unknown persons and their departure towards Sargodha. Under cross-examination nothing could be extracted from him except from his denial of having informed complainant Mst. Kaneez Bibi on 6-12-1998 regarding the last-seen evidence, whereas in fact he has stated so in his police statement. In our opinion, this is a minor discrepancy and can be ignored. He has no reason whatsoever to implicate the appellants as no enmity has even been remotely suggested by the defence in his cross-examination. Similarly, P.W. Sher Muhammad has also given a forthright account of the incident and explained his presence at the taxi stand under cross-examination viz. for taking his ailing wife to Chiniot. Again there are minor improvements in his deposition before the learned A.T. Court regarding the purpose of his going to the taxi stand, which was to hire a taxi for taking his wife for medical treatment, which he had not disclosed in his police statement etc. So also he has admitted under cross-examination that the deceased and the complainant Mst. Kaneez Bibi are like his own children. However, in our opinion, this does not detract from the inherent veracity of his deposition because mere relationship is no reason to disregard the evidence of any witness if otherwise his testimony inspires confidence. The last-seen evidence as reported by aforementioned witnesses has in all material particulars been corroborated by the recovery of the deceased's body at the pointation of appellant Muhammad Sharif as he alone had the exclusive knowledge of the location. Post-mortem examination of the deceased is also relevant whereby it has been reported by the Medical Officer that the deceased had received one bullet injury on the right temporal area of the head, the edges of which were blackened being an entry wound whereas there was no exit wound, a lacerated wound deep on the middle of the forehead, another wound on the left side of the forehead, a fourth lacerated wound muscle deep on the left cheek and finally a lacerated wound skin deep on the left side of the upper lip. The Medical Officer opined that injury No.1 was inflicted by a fire-arm whereas the others by a hard and blunt substance. As to Muhammad Sharif's extra-judicial confession before P.W. Haji Muhammad Sher this has also been sufficiently corroborated by the pointation of deceased's body by this appellant immediately thereafter. Regarding the deposition of P.W. Haji Muhammad Sher, he too is an independent witness and bears no animosity with the appellants. He has stated in a truthful manner the events which preceded the recovery of the deceased's body at the pointation of appellant Muhammad Sharif i.e. his extra-judicial confession, arrest by the police and the departure of the police party along with him, the appellant, Mahlley Khan and others for recovery of the deceased's body. Nothing in the cross-examination could be gleaned in favour of the, defence. Hence we have no reason to disbelieve him. In view of the foregoing discussion we have no doubt in our minds that appellant Muhammad Sharif has been correctly convicted by both the learned Anti-Terrorism Court and the High Court.

29. All the above pieces of evidence, when combined together, prove that appellants have committed this crime. They were, therefore, rightly convicted and sentenced by the trial Court.

30. We have reached at the conclusion that evidence led by the prosecution is reliable and trustworthy. Prosecution witnesses had no motive to falsely implicate the appellants in this case. As observed above, last seen evidence, the information furnished by appellants to investigation officer during investigation regarding pointation of the house where deceased was murdered by the accused persons and recoveries are corroborated by circumstantial evidence. A credible corroboration has also come on record. Chain of events has been completed to establish guilt of the accused. The learned trial Court rightly came to the conclusion that the prosecution has proved its case against the appellants beyond any reasonable doubt. Insofar as death penalty is concerned, accused Orangzeb, Ghulam Rasool and Ahsanullah in their statements recorded under section 342 Cr.PC claimed that they are lame persons. Appellant Amanullah claimed that he is aged about 75 years. All the accused persons were produced in the Court. We have observed that accused Orangzeb, Ghulam Rasool, Ahsanullah and Amanullah are able to perform their routine work. Appellants Orangzeb, Ghulam Rasool and Ahsanullah were disabled at the time of commission of crime. We are unable to show mercy to those, who themselves are proved to have acted mercilessly and killed a young man after receiving ransom. Appellant Amanullah’s 70 years age alone is not a mitigating circumstance as held by Hon’ble Supreme Court in the case of Amir Gul vs. The State ( 1981 S.C.M.R. 182). Learned defence counsel could not point out other mitigating or extenuating circumstances to award lesser punishment. The Honourable Supreme Court of Pakistan in the case of Miss Najiba and another versus Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988) has observed that when in the case, involving capital punishment prosecution proves its case, Court is duty bound to impose deterrent punishment to make evil doers an example. Relevant observations are reproduced as under:

“6. It is obvious from the above cited case law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the likeminded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment, the Courts while awarding lesser punishment have to record reasons justifying the same. In the present case so far as question of sentence is concerned, both the trial Court and the High Court have failed to record reasons for awarding lesser punishment to the respondents, who committed preplanned triple murder in a very brutal and gruesome manner and buried the dead bodies in the houses, where they were killed. Till the time of disclosure of murders by the respondents themselves in their confessional statements, it was not known to anybody that they had killed three persons namely, Engineer Fahim, Mst. Kishwar Kamal alias Laila and Syed Faqir and their dead bodies had been buried in the houses, which were recovered at their instance from the places specified in the confessions, in presence of the Magistrates. Keeping in view the findings of both the Courts below that the prosecution has proved its cases against the respondents beyond any shadow of doubt, they did not deserve any leniency in sentence in premeditated cruel triple murder.”

38. For the aforesaid facts and reasons, there is no merit in this appeal, which is hereby dismissed. Consequently, Reference made by the trial Court for confirmation of death sentence is answered in affirmative.

JUDGE

JUDGE

Gulsher/PA