.jfif)
2021 P Cr. L J 150
[Sindh (Hyderabad Bench)]
Before Muhammad Iqbal Kalhoro and Zulfiqar Ali Sangi, JJ
HIMAT ALI and others---Appellants
Versus
The STATE---Respondent
Criminal A.T.A. Appeal No. D-50, Criminal Appeal No. D-55 and Criminal Jail
Appeal No. D-56 of 2016, decided on 28th October, 2019.
(a) Criminal trial---
----Witness---Minor discrepancies---Effect---Minor discrepancies always
come on record due to lapse of considerable time between incident and recording
of evidence.
(b) Penal Code (XLV of 1860)---
----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act
(V of 2013), S. 25---Qanun-e-Shahadat (10 of 1984), Art. 22---Abduction for
ransom and possession of illegal firearm---Appreciation of
evidence---Identification parade, non-holding of---Effect---Police
encounter---Accused persons were arrested for kidnapping for ransom and
abductee was recovered from their custody after police encounter---Non-holding
of identification test was no ground to discard testimony of eye-witness and
abductee who remained in custody of accused for considerable period and
identification of accused in court at time of evidence was
sufficient---Identification parade was not a requirement of law but only one of
methods to test veracity of eyewitness who had an opportunity to see accused
and claimed to identify him---All witnesses including abductee fully supported
case of prosecution against accused persons---Recovery of abductee from custody
of accused persons; their encounter with police and receiving of injuries during
encounter by one accused and death of other accused; recoveries of unlicensed
weapons from accused persons including empties which were sent to Forensic
Science Laboratory and report of Chemical Examiner regarding blood stained
clothes of deceased accused and blood stained mud; collection of Call Data
Record (CDR) of mobile of accused so also abductee; and recovery of mobile
phone and SIM which were used for demand of ransom had proved case of
prosecution---Evidence of star witness (abductee) was trustworthy, inspired
confidence which could not be discarded on flimsy grounds or on technical
ones---High Court declined to interfere in conviction and sentence awarded to
accused persons by Trial Court--- Appeal was dismissed in circumstances.
Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mohammad
Hayat and 3 others v. The State 2018 PCr.LJ Note 61; Riaz v. The State 2018 YLR
2059; Abdul Jabbar and others v. The State 2017 PCr. LJ 160; Muhammad Dawood
and 8 others v. The State 2015 PCr.LJ 316; Muhammad Saleem v. The State 2014
YLR 794; Bashir Ahmed v. The State 2015 MLD 313; Aamir Ali and 2 others v. The
State 2017 PCr.LJ 1451; Muhammad Rasool v. The State 2015 PCr.LJ 391 and Ghulam
Hussain Soomro v. The State PLD 2007 SC 71 distinguished.
Dr. Javed Akhtar v. The State PLD 2017 SC 249; Muhammad Akbar v. The
State 1998 SCMR 2538; The State v. Haider Zaidi and 2 others 2001 SCMR 1919;
The State through Advocate General Sindh Karachi v. Farman Hussain and others
PLD 1995 SC 1; The State v. Nazeer Ahmed and others 1999 SCMR 610; The State v.
Haider Zaidi and 2 others 2001 SCMR 1919; Hakim Khan v. The State 2013 SCMR 777
and Sajan and another v. The State 2015 PCr.LJ 953 rel.
Imam Bux Baloch for Appellant (in Criminal A.T.A. Appeal No. D-50 of
2016).
Saifullah Dasti for Appellant (in Criminal Appeal No. D-55 of 2016).
Muhammad Jameel Ahmed for Appellant (in Criminal Jail Appeal No. D-56 of
2016).
Ms. Safa Hisbani, Assistant Prosecutor General, Sindh for the State.
Dates of hearing: 12th and 25th September, 2019.
JUDGMENT
ZULFIQAR ALI SANGI, J.---By this common judgment, we intend to dispose of
above captioned appeals as the same arise out of FIR No. 56 of 2015 registered
at Police Station Taluka Mirpurkhas under sections 365-A, 34, P.P.C. read with
sections 6/7, A.T.A. 1997, FIR No. 55 of 2015 registered at Police Station
Khaan District Mirpurkhas under sections 324, 353, 100, 34, P.P.C. read with
sections 6/7, A.T.A., 1997, FIR No. 56 of 2015 registered at Police Station
Khaan District Mirpurkhas under section 23(1)(a), Sindh Arms Act, 2013, FIR No.
57 of 2015 registered at Police Station Khaan District Mirpurkhas under section
23(1)(a), Sindh Arms Act, 2013 and FIR No. 58 of 2015 registered at Police
Station Khaan District Mirpurkhas under section 23(1)(a), Sindh Arms Act, 2013.
2. After registration of above FIR investigation was conducted and
challans were submitted before the concerned court, who after taking cognizance
allotted separate special case numbers. Thereafter learned ADPP filed
application under section 21-M on behalf of State, which was allowed on
30.10.2015 and all the cases were ordered to be amalgamated in Special Case No.
18 of 2015 and learned Judge of Anti-terrorism Court, Mirpurkhas after
recording evidence and completing all formalities passed a common judgment
dated 05.05.2016, which is impugned before us in the above appeals.
3. Learned trial court by impugned judgment has convicted the appellants
and sentenced each of them to suffer imprisonment for life and further ordered
forfeiture of their moveable and immoveable properties in favour of government
for committing offences of kidnapping for ransom under section 365-A, P.P.C.
and section 7(c) of Anti-Terrorism Act, 1997 read with section 34, P.P.C. They
were also convicted in police encounter case (Special Case No.19/2015) for
offence under section 7(h) of Anti-Terrorism Act, 1997 and were sentenced to
suffer R.I for 5 (five) years' and to pay fine of Rs.1,00,000 (one hundred
thousand) each and in default whereof to suffer further RI for one year,
appellant Arz Muhammad was also convicted for possessing .30 bore pistol under section
24 of Sindh Arms Act, 2013 in Special Case No. 20 of 2015, to suffer R.I for 02
(two) years' and to pay fine of Rs. 50,000/- (fifty thousand only) and in
default whereof to suffer further R.I for six months. Appellants Sulleman and
Himat Ali were also convicted in Special Case Nos. 21 and 22 of 2015
respectively and were sentenced under section 25 of Sindh Arms Act, 2013 to
suffer R.I for 03 (three) years and to pay a fine of Rs. 50,000/- (Fifty
thousand only) each and in default whereof to suffer further RI for six months.
However, benefit of section 382-B, Cr.P.C. was extended to them.
4. The facts as per FIR No. 56 of 2015 registered at Police Station
Taluka Mirpurkhas are that complainant Muhammad Arab Mahar came at police
station and lodged FIR by stating that he is zamindar, his uncle Haji Noor
Muhammad Mahar is doing business of cattle, on 05.09.2015 he along with his
cousin Muhammad Ramzan and uncle Haji Noor Muhammad left home for cattle
market, Umerkot, when they reached Mirpurkhas-Umerkot road at about 0600 hours,
suddenly one red colour Margalla Car No. AAB-653 came from Mirpurkhas and
stopped near them. Complainant party saw five persons sitting in the car, out
of which four persons who were armed with weapons alighted and kidnapped Haji
Noor Muhammad Mahar and went towards Umerkot. Complainant party returned to
their village and informed about the incident to Sirajuddin son of abductee
Haji Noor Muhammad Mahar. On 07.09.2015 Sirajuddin received a phone call from
his father's mobile number for payment of ransom of Rs: 1,50,00,000/= for
release of Haji Noor Muhammad. Subsequently he was continuously receiving calls
for arrangement and payment of ransom amount up to 14.09.2015. Such FIR was
registered on 17.9.2015.
5. On the same day i.e. 17.09.2015 SIP Nizamuddin Khaskheli SHO P.S
Taluka Mirpurkhas lodged another FIR bearing Crime No.55 of 2015 at Police
Station Khaan District Mirpurkhas for offence under sections 324, 353, 100, 34,
P.P.C. read with Section 6/7 ATA, alleging therein that he is posted as SHO
Police Station Taluka Mirpurkhas, he received information from SIP Akbar Mari
of Police Station Khaan that he has received spy information that Haji Noor
Muhammad Mahar who was abducted from the jurisdiction of Police Station Taluka
Mirpurkhas has been kept by kidnappers in sugarcane crop near the house of
Khamiso Katohar near Patoyoon-Nawabad Road and now they are preparing to shift
him to another place. He also called for other police force of different police
stations and also informed the higher authorities for search and recovery of
abductee, upon which complainant along with his staff also come via Dah-Dari
and reached at pointed place along with his staff at about 1345 hours, then SHO
Police Station Khaan namely Akbar Mari informed through wireless that one red
colour Margalla Car No: AAB-653 was coming towards Dah Dari Mori from the house
of Khamiso Katohar and disclosed that he was following the Car. At about 1400
hours they saw said car coming in speed towards Dah Dari Mori, they signaled to
stop the car which was stopped and 5 persons duly armed with deadly weapons
including one empty handed alighted from the car; empty handed person raised
crises saying 'save' 'save' and started fleeing towards North, other four
persons made straight firing upon the police, the police also retaliated in
their defense. The encounter continued for about half an hour and lastly one
person from accused side surrendered while raising hands, three persons fell
down on ground and firing stopped. Police saw that person having KK had died in
firing and two persons were injured and they had firearm injuries on their
legs, who had pistols and were taken into police custody. The person who raised
crises came towards police and disclosed that he was kidnapped by accused
persons on 05.09.2015 and kept in sugarcane crop and were shifting to other
place. The persons who surrendered disclosed his name as Himat Ali son of
Deedar Ali Rind and further disclosed that they kidnapped the abductee and used
to call his relatives for ransom, for deceased he disclosed his name as Ali
Murad son of Habibullah Rind and for injured person he disclosed their names as
Arz Muhammad son of Hamao and Sulleman son of Habibullah Rind, with regard to
car he disclosed that there are no documents. From Himat Ali one TT pistol of
30 bore along with magazine 4 live bullets and 4 notes of 100/- were recovered
and from Arz Muhammad one TT pistol of 30 bore with magazine 2 live bullets one
note of Rs. 500/- and from Sulleman Rind one TT pistol of .30 bore along with
magazine 3 live bullets one note of Rs. 1000/- and one KK along with magazine
and 5 live bullets two notes of Rs. 100/- and NIC was recovered from deceased
Ali Murad Rind. Such mashirnama was prepared.
6. Police also registered cases under Section 23(i)(a) Sindh Arms Act,
2013 against arrested accused and all five cases were investigated by Inspector
Abdul Sattar Gurgage who after completing investigation submitted challans
before Anti-Terrorism Court Mirpurkhas and on application of ADPP all the cases
were amalgamated and tried.
7. After completing necessary formalities trial court framed a common
charge on 18.12.2015 at Ex.18 to which accused pleaded not guilty and claimed
to be tried. Their pleas were recorded by the trial court as Ex.19 to 21.
Prosecution in order to prove it's case examined complainant Muhammad Arab as
P.W-1 at Ex. 23, Haji Noor Muhammad as P.W-2 at Ex.27, Muhammad Ramzan as P.W-3
at Ex.30, Manzoor Ahmed as P.W-4 at Ex: 32, Fateh Muhammad P.W-5 at Ex.36, Umed
Ali as P.W-6 at Ex.39, Akbar Khan as P.W-7 at Ex.43, SIP Nizamuddin as P.W-8 at
Ex. 48, Muhammad Jurial as P.W-9 at Ex.58, Muhammad Moosa as P.W-10 Ex.60,
Abdul Sattar as P.W-11 at Ex.65, thereafter ADPP filed statement on 21.04.2016
and closed the side of prosecution at Ex.77. Accused were examined under
section 342, Cr.P.C. at Exs. 78, 79 and 80 respectively.
8. After hearing learned defense counsel and ADPP learned trial court
convicted the appellants as stated above, hence the instant appeals.
9. Learned counsel for appellants contended that appellants are innocent
have been implicated due to enmity; that there is delay of 12 days in
registration of FIR which has not been explained by complainant party; that
even no roznamcha entry about the abduction was made at police station; that
names of appellants are not mentioned in FIR nor description has been given by
complainant party in FIR No. 56 of 2015; that after arrest of appellants,
identification parade was not held before Magistrate; that during evidence CD
of voice recording of abductors was not produced before the trial court; that
fake encounter is shown by the police; that no police official received injury
in the alleged encounter; that injuries to appellants on their knee during the
encounter suggest false implication; that MLC was managed by police; that
doctor has not disclosed the range of fire received by appellants; that
witnesses produced by the prosecution are interested who have given
contradictory evidence; that identification of appellants in court during
evidence has no value as witnesses had seen them prior to recording of
evidence; that weapons were foisted upon the appellants; that prosecution
failed to establish case against appellants beyond a shadow of reasonable
doubt. Learned counsel relied upon the cases of Azeem Khan and another v.
Mujahid Khan and others (2016 SCMR 274), Mohammad Hayat and 3 others v. The
State (2018 PCr.LJ Note 61), Riaz v. The State (2018 YLR 2059), Abdul Jabbar
and others v. The State (2017 PCr. LJ 160), Muhammad Dawood and 8 others v. The
State (2015 PCr.LJ 316), Muhammad Saleem v. The State (2014 YLR 794) and Bashir
Ahmed v. The State (2015 MLD 313), and prayed for setting aside the judgment of
conviction and acquittal of appellants.
10. Learned APG contended that delay in cases of abduction for ransom is
natural and always complainant party remain under threat of life of their
relative, waiting for safe recovery as has been done in the present case. She
further submitted that identification parade before Magistrate is not
necessary, identification at the time of evidence before the trial court is
sufficient. The person identifying culprits who remained in their custody for a
considerable period would not make any mistake in identification of the accused
during trial. No enmity is suggested for false implication; abductee was
recovered from the possession of appellants during police encounter; that
witnesses had fully supported the case of prosecution; weapons used in
commission of offence also recovered from the appellants. Lastly she contended
that prosecution has proved its case beyond any shadow of reasonable doubt by
producing trustworthy and confidence inspiring evidence, appellants were
rightly convicted by the trial court hence she prayed for dismissal of their
appeals. She relied upon the cases of Aamir Ali and 2 others v. The State (2017
PCr.LJ 1451) and Muhammad Rasool v. The State (2015 PCr.LJ 391).
11. We have heard the arguments of learned counsel of the parties and
pursued the material available on record.
12. Prosecution in order to prove the case against the appellant has
examined complainant Muhammad Arab as PW-1 at Ex: 23 who deposed that on
05.09.2015 at 6:00 a.m. he along with his paternal uncle Haji Noor Muhammad and
cousin Muhammad Ramzan left their houses for Cattle Piri at Umerkot, when they
reached at Haji Noor Muhammad Rasti situated at Mirpurkhas-Umerkot road at 6-30
a.m., they saw a red colour Margalla Car No: AAB- 653 in which 5 persons were
sitting, out of which four who were armed with weapons got down from the car
and on point of weapons abducted his paternal uncle Haji Noor Muhammad and went
towards Umerkot. He informed such facts to Sirajuddin son of abductee. He
further deposed that on 07-09-2015 he received a call on Mobile No.0313-3515848
of P.W Sirajuddin from Cell No. 0307-0325035 of abductee Haji Noor Muhammad
whereby the abductors demanded Rs. one crore and fifty lacs as ransom for the
release of Haji Noor Muhammad failing which they will receive his dead body. He
further deposed that from 7th to 14th September, 2015 he repeatedly received
message of demanding ransom from said cell number and lastly abductors reduced
amount of ransom to rupees one crore. On 17.09.2015 he went to Police Station
Taluka Mirpurkhas and lodged FIR No. 56 of 2015 for abduction of Haji Noor
Muhammad. He deposed that on 17.09.2105 in the evening Haji Noor Muhammad came
at home and informed them that during encounter between police and abductors he
was got freed by the police, abductee further informed that during encounter
police arrested two accused namely Arz Muhammad and Sulleman in injured
condition, third accused Himat Ali surrendered before police and 4th one Ali
Murad was killed in encounter while two accused made their escape good.
Abductee further disclosed that accused Himat Ali, Sulleman, Dilawar alias Mir
Buledi and Ali Murad after kidnapping took him to the house of absconder
accused Khameso Khan Katohar where he was detained for about 13 days. Abductee
further informed him that on the day of encounter accused Arz Muhammad, Himat
Ali, Sulleman and Ali Murad were shifting him in same Margala Car No. AAB-653
to another place but during encounter at Dah-Dari Mori police got freed him
from the clutches of accused persons. He stated that on the next day i.e.
18.9.2015 between 11:00 a.m. and 12:00 noon he along with abductee Haji Noor
Muhammad and PW Muhammad Ramzan went to Civil Hospital Mirpurkhas where he
identified accused Arz Muhammad and Sulleman in injured condition while dead
body of accused Ali Murad to be the same person who had abducted Haji Noor
Muhammad; thereafter they went to Police Station Taluka Mirpurkhas where they
also identified accused Himat Ali. He further deposed that he and other P.Ws along with abductee were produced before the Magistrate
where their statements under section 164, Cr.P.C. were recorded. Complainant
was cross-examined by defence counsel but could not shatter his evidence.
13. P.W-3 Muhammad Ramzan was examined at Ex.30. He also deposed on same
line as deposed by complainant Muhammad Arab.
14. P.W-2 Haji Noor Muhammad, who is the abductee and is most important
witness of the incident was examined at Ex.27. He during his evidence deposed
that the incident took place on 5.9.2015. On the day of incident he along with
P.W-1 Muhammad Arab and Muhammad Ramzan left their houses for Cattle Piri at
Umerkot and reached at 'Name Board' of village called after his name as
"Haji Noor Muhammad Mahar" situated at Mirpurkhas-Umerkot Road at
6:30 a.m. and saw one Red Colour Margala Car No. AAB-653 coming from Mirpurkhas
side and stopped there. He saw five persons with open faces sitting in the car,
out of them four who were armed with weapons got down and abducted him. They
all took him to village Khameso Katohar situated towards Umerkot side where
they detained him in the house of accused Arz Muhammad and Khameso both by
caste Katohar for about 12-13 days where 6-7 persons guarded him. During his
confinement he heard them calling each other with names of Arz Muhammad, Himat
Ali, Sulleman, Mir alias Dilawar, Khamiso and Ali Murad. Abductee further
deposed that on 17.9.2015 they took him in the said car for shifting to another
place and when at about 2:00 PM they reached at Dah-Dari Mori an encounter took
place between them and police party. During encounter accused Ali Murad was
killed while accused Himat Ali along with his weapon surrendered, whereas
accused Arz Muhammad and Sulleman were apprehended in injured condition, the
other accused made their escape good. Police got him freed and at about 7:00 to
7:30 p.m., he reached his home. He further deposed that on the same day i.e.
17.9.2015 at about 9:00 p.m., he took P.W-1 Complainant Muhammad Arab and P.W
Muhammad Ramzan to Civil Hospital Mirpurkhas where they identified accused Arz
Muhammad and Sulleman and also the dead body of deceased accused Ali Murad to
be the same persons who had abducted him. After that, they went to Police
Station Taluka Mirpurkhas where they identified the accused Himat Ali to be the
same person who at the time of incident and thereafter had driven the Car No.
AAB-653. He further deposed that he along with above named P.Ws appeared before 1st Judicial Magistrate Mirpurkhas for
recording their Statements under section 164, Cr.P.C. Though this important
witness was cross-examined by defence counsel but except minor discrepancies
nothing was brought on record which could cause dent in his evidence.
15. P.W-4 Manzoor Ahmed (mashir) was examined at Ex.32. He deposed that
on 20.9.2015 at about 1:40 p.m. he along with his cast fellow Mumtaz reached at
'Name Board‟ of village Haji Noor Muhammad Mahar situated at Mirpurkhas-Umerkot
road where complainant Muhammad Arab came along with police officials and in
their presence pointed out the place from where Haji Noor Muhammad was said to
be abducted. Police prepared memo of inspection of place of occurrence in his
presence and co-mashir Mumtaz. He further deposed that on 13.10.2015 at about
12 noon Inspector Abdul Sattar Gurgage called him and co-mashir Mumtaz on
mobile phone to come at Police Station Taluka Mirpurkhas. They both left their
houses and reached at Jarwari channel where he saw police mobile van wherein
accused Himat Ali was sitting. The said police officer mad them to sit also in
the police mobile van and brought at Dah-Dari Mori and from bushes accused
Himat Ali produced a mobile phone containing a SIM. The said police officer
took the mobile phone into police possession and sealed the same in a parcel,
such memo was also prepared. He identified accused Himat Ali in court to be the
same so also case property viz. black colour Nokia mobile phone. He too was
cross examined at length but defence counsel could not shatter his evidence.
16. P.W-06 P.C. Umed Ali (mashir) was examined at Ex.39. He deposed that
he was posted at Police Station Mirpurkhas Old. On 18.9.2015 at 7:30 a.m. he
along with Investigating Officer Inspector Abdul Sattar and police constables
Abdul Majeed left police station for Civil Hospital Mirpurkhas and reached at
8:00 a.m. where he saw two persons namely Arz Muhammad and Sulleman who were
admitted as indoor patient. Investigating Officer arrested both of them in main
case bearing Crime No. 56 of 2015 Police Station Taluka under sections 365-A
etc., P.P.C. and 6/7, A.T.A., 1997. Such memo of arrest was prepared in his
presence and PC Abdul Majeed. He further deposed that on the same day at 12:00
noon ASI Ghulam Hussain of said police station handed over a sealed parcel of
blood stained clothes of deceased Ali Murad to Inspector Abdul Sattar. Such
mashirnama was also prepared. He further deposed that on 19.9.2015 he along
with SHO Abdul Sattar and PC Abdul Majeed left Police Station Mirpur Old in
police mobile van driven by HC Mehmood Ali to investigate case bearing Crime
No. 55 of 2015 police station Khaan under section 324, P.P.C. read with
sections 6/7, A.T.A., 1997, reached at the place of occurrence i.e. Dah-Dari
Mori adjacent to Jamrao canal in Deh 81 Taluka Hussain Bux Mari where he saw
SIP Nizamuddin Khaskheli SHO, Police Station Taluka Mirpurkhas was already
there and on his pointation I.O Abdul Sattar inspected the scene of occurrence
and secured bloodstained earth of deceased accused Ali Murad. He also secured 25
empties of SMG and 19 empties of .30 bore pistol. He took the same in police
possession. The blood stained earth was sealed in separate parcel, while in all
44 empties were sealed in another parcel. Such memo was prepared. He identified
accused Arz Muhammad and Sulleman in court so also case property.
17. P.W-7 Akbar Khan Mari mashir and I.O was examined at Ex. 43. He
deposed that on 17.9.2015 he was posted as SHO PS Khaan district Mirpurkhas. On
the same day at 8:40 a.m. he received spy information that Haji Noor Muhammad
Mahar who was abducted from the jurisdiction of Police Station Taluka
Mirpurkhas has kept the kidnappers in sugarcane crop near village Khameso
Katohar. He after informing his superiors along with staff vide entry No. 4 at
8:40 a.m. proceeded to the pointed place, other police parties also reached
there. During search he found a red colour Margala Car No. AAB-653 came out
from the house of Khameso Khan Katohar (abductor accused) and followed the
same. He informed SIP Nizamuddin who held Nakabandi at Dah-Dari Mori and
stopped the said car, they also reached there. They found five persons who got
down from said car. Out of them one was armed with Kalashnikov and three were
armed with pistols while 5th was empty-handed. He deposed that accused who were
armed with weapons on seeing police party started firing, police also started
firing in defence and an encounter continued for about half an hour. One person
who was armed with pistols surrendered himself whose name was Himat Ali while
three assailants were fallen on the ground. Out of them one who was armed with
Kalashnikov was found dead while two were found in injured condition. On
enquiry out of two injured persons, one disclosed his name as Sulleman, one
pistol of .30 bore was secured from each injured persons. The pistol was also
recovered from accused Himat Ali. About the dead body of accused his name was
disclosed as Ali Murad by co-accused Sulleman and from the side of deceased Ali
Murad they secured a Kalashnikov loaded with 5 live bullets. An empty bag,
original CNIC of Ali Murad were also secured. He further deposed that 5th
person who on seeing the police party raised cries and disclosed his name as
Haji Noor Muhammad Mahar, told the police party that on 5.9.2015 he was
abducted by the accused persons from Umerkot road and confined in sugarcane
crop near village Khameso Katohar. He further disclosed that accused had
demanded ransom from his relatives for his release and on the day (17.9.2015)
accused person trying to shift him to another place but he was freed during the
encounter by the police. This witness also identified the appellants in court
so also property including car and weapons.
18. P.W-8 SIP Nizamuddin who is complainant in Special Case No. 19 of
2015 under section 324, P.P.C. and sections 6/7, A.T.A., 1997 and complainant /
recovery officer in cases registered against appellant Arz Muhammad, Sulleman
and Himat Ali under section 23(1)(a) of Sindh Arms Act, 2013 was examined at
Ex. 48. He deposed that on 17.9.2015 he was posted as SHO at Police Station
Taluka Mirpurkhas. On that day at 12:00 noon Muhammad Arab came at police
station and lodged report against unknown persons under sections 365-A, 34,
P.P.C. read with sections 6/7, A.T.A., 1997, with regard to abduction of Haji
Noor Muhammad Mahar on 5.9.2015 from bus stop of village Haji Noor Muhammad
situated at Mirpurkhas-Umerkot road. He further deposed that on the same day at
12:45 p.m. he received a telephone message of SIP Akbar Khan Mari SHO PS Khaan
that abductee Haji Noor Muhammad was kept by abductors in sugarcane crop near
village Khameso Katohar. He conveyed such information to his superiors and CIA
Police Mirpurkhas and then by making entry in daily diary left police station
along with his staff and at about 1:45 p.m. reached at Dah-Dari Mori where he
was informed by SIP Akbar Khan that abductors took abductee Haji Noor Muhammad
in a Red Colour Car No. AA-653 and was asked for Nakabandi at that place. He
further deposed that at 2:00 p.m. he saw the car coming in high-speed, he
stopped it and saw five persons in the car out of which one was armed with
Kalashnikov, three with pistols got down from the car while 5th person who was
empty-handed also got down from the vehicle who raised his arms and uttered the
words in Sindhi "Bachayo-Bachayo" and ran away. He deposed that
abductors started firing at police, who too started firing in defence. Such
encounter continued for about half an hour. One accused surrendered with pistol
who disclosed his name as Himat Ali. During encounter one accused was killed
and Himat Ali disclosed his name as Ali Murad, two accused were also
apprehended in injured condition, they disclosed their names as Arz Muhammad
and Sulleman and weapons were also recovered from them. P.W in his deposition
further disclosed that Haji Noor Muhammad Mahar stated before him that he was
abducted by present accused persons on 5.9.2015 and confined in sugarcane crop
near village Khameso Katohar. He stated that he registered FIR No. 55 of 2015
under sections 324, 353, 100 and 34, P.P.C. read with sections 6/7, A.T.A.,
1997; FIR Nos. 56, 57 and 58 of 2015 under section 23(1)(a), Sindh Arms Act,
2013 respectively. He deposed before the trial court that Inspector Abdul
Sattar Gurgage inspected the place of encounter i.e. Dah Dari Mori and secured
25 empties of SMG and 19 empties of 30 bore pistol and blood stained earth of
deceased Ali Murad in presence of mashirs. He identified the accused before the
trial court so also case property including Car as same.
19. P.W-9 Mr. Muhammad Jurial Civil Judge and Judicial Magistrate-I,
Mirpurkhas was examined at Ex.58. He deposed that investigation officer
Inspector Abdul Sattar Gurgage moved application No. Cr.-56-15 dated 8.10.2015
for recording 164, Cr.P.C. statements of complainant Muhammad Arab, P.W Haji
Noor Muhammad (abductee) and Muhammad Ramzan in Crime No. 56 of 2015 of Police
Station Taluka Mirpurkhas under sections 365-A, 34, P.P.C. and sections 6/7,
A.T.A., 1997. At that time I.O produced only one accused by name Himat Ali. He
called the accused in chamber. After that complainant and P.Ws were called turn by turn and recorded their statements
under section 164, Cr.P.C.; chance of cross-examination was given to accused
but he stated that he will cross-examine them in trial.
20. P.W-10 Doctor Muhammad Moosa was examined at Ex.60. He deposed that
he was posted as Senior Medical Officer in Civil Hospital Mirpurkhas on
17.9.2015 where police brought two persons in injured condition namely Arz
Muhammad and Sulleman for medical examination and treatment. He examined them
and issued such certificates.
21. PW-11 Abdul Sattar Gurgage who was investigating officer was examined
at Ex. 65. He deposed that on 17.9.2015 he received letter Nos. CB/R/-2746
dated 17.9.2015 of SSP Mirpurkhas for conducting investigation of main case
bearing Crime No. 56 of 2015 Police Station Taluka Mirpurkhas, FIR Nos. 55, 56
and 57 and 58 of 2015 of Police Station Khaan district Mirpurkhas. On 18.9.2015
at 8:00 a.m. he reached at Civil Hospital Mirpurkhas where he arrested injured
accused Arz Muhammad and Sulleman. He also arrested accused Himat Ali who was
already in police lockup of said police station. He also inspected red colour
Car No.AAB-653 lying at police station. He received articles from hospital,
inspected dead body of deceased and injured accused persons. He visited the
place of incident in presence of mashirs, secured 25 empties of SMG and 19
empties of .30 bore pistol; in all 45. He secured bloodstained earth of accused
Ali Murad and sealed the same. He recorded statements of all witnesses
mentioned in all the FIRs. He wrote letter to SSP Mirpurkhas for obtaining
mobile call record of accused Himat Ali, Soba Khan, deceased accused Ali Murad,
abductee Haji Noor Muhammad and complainant Muhammad Arab. He received mobile
data from the office of SSP Mirpurkhas. He sent the parcel of blood stained
clothes and another sealed parcel bottle of blood stained earth of deceased
accused Ali Murad to chemical examiner, Government of Sindh Karachi for
analyses and report. He produced the witnesses before the Magistrate for recording
their 164, Cr.P.C. statements, which were recorded during investigation. He
recovered mobile phone which was used in commission of offence for demanding
ransom, it was of Nokia Company having SIM No. 0306-0314102. He sealed it and
prepared mashirnama. He also received report of bloodstained clothes and mud of
deceased accused Ali Murad from chemical examiner, Government of Sindh Karachi
and Forensic Science Laboratory Hyderabad Report No. FSL/FD/OR/F,A/1439 dated
28.9.2015 with regard to crime weapons recovered from accused persons and
empties secured from the scene of occurrence. He identified the accused so also
case property including the car used in crime.
22. All the witnesses examined before the Trial Court have supported the
prosecution case on all material facts. The abduction and recovery of the
abductee have been proved. The encounter and during which death of one culprit
and injury to two accused is fully established. The recovery of arms and the
car in which the abductee was taken away have not been shattered during
cross-examination. There is nothing on record to show enmity between the
parties to raise suspicion of false implication of the appellants.
23. The police officials have also supported the prosecution case
relating to recovery of abductee, arms and car used in the crime. Although
defence counsel have cross-examined the witnesses at length but nothing
diluting the intrinsic value of evidence has been brought on record. There are
minor discrepancies in the evidence but they have no bearing on merits of the
case. The minor discrepancies always come on record due to lapse of
considerable time between incident and recording of evidence.
24. Learned defence counsel has relied upon the case of Azeem Khan and
another v. Madad Khan and others (2016 SCMR 274). In this case, case of
prosecution was based upon circumstantial evidence, it was an unwitnessed
crime, defects in judicial confession, which facts and material are totally
different from the present case, therefore it is not helpful to the appellants.
In case of Muhammad Ayaz and 3 others v. The State (2018 PCr.LJ Note 61) the
abductee of 1st episode has not implicated the accused at trial. During
encounter none received any injury from the either side, weapons and empties
were not sent to ballistic expert for report. Whereas in the present case
abductee has fully supported the case, during encounter abductee was recovered
from the possession of appellants, one accused was killed and 2 were injured in
the encounter, and one who surrendered was duly armed with weapon, weapons and
empties recovered were sent to ballistic expert and such report is in positive
which favours the prosecution case. In case of Riaz v. The State (2018 YLR
2059), complainant during the course of examination had stated that both the
accused present in court were not the same who abducted the minor and during
trial complainant was declared hostile and recovery of abductee boy was
contradictory. Whereas in the present case all the witnesses including
complainant have fully supported the case of recovery of abductee. In case of
Abdul Jabbar and others v. The State (2017 PCr.LJ 160) alleged abductee was not
recovered from the possession of accused but he appeared before the police
along with complainant and the incident was of night time and there were
contradictions in evidence. But the present incident was committed in day time,
no major contradictions are pointed out. In case of Muhammad Dawood and others
v. The State (2015 PCr.LJ 316) FIR was registered by police with a delay of 40
days and was not got registered by the relatives of abductee; accused persons
were on inimical terms with that police officials and complaints were already
made against the said SHO. In the present case there is no enmity of appellants
with police or with complainant party. In case of Muhammad Saleem v. The State
(2014 YLR 794) accused was employee of complainant, no one saw the incident of
abduction except abductee, recovery of abductee was doubtful and no encounter
took place between the abductors and the police party though abductors were
armed with weapons. But in the present case complainant Muhammad Arab and
Muhammad Ramzan have seen the abduction of Haji Noor Muhammad who was recovered
from the appellants after an encounter took place and during that encounter one
accused was killed and two sustained injuries. In case of Bashir Ahmed v. The
State (2015 MLD 313) abductee was not recovered from the possession of accused
nor was recovered on their pointation; accused were muffled faces and were not
identified by complainant and other witnesses. Therefore, this case is also of
no help to the appellants as they were clearly seen by complainant and
witnesses at the time of abduction and the abductee was recovered from the
possession of appellants and the car which was used in commission of offence
was also recovered. As discussed above, the law relied upon by learned counsel
for the appellants are not applicable to the facts and circumstances of the
case.
25. Delay in FIR in cases of abduction for ransom is not fatal to the
prosecution in presence of strong direct and circumstantial evidence which must
be reliable and inspire confidence, which is available in the present case.
Reliance can be placed on the case of Ghulam Hussain Soomro v. The State (PLD
2007 SC 71) wherein Honourable Supreme Court of Pakistan held as under
We have anxiously attended to the submissions of the learned counsel and
found from the record that the delay in lodging FIR has been adequately
explained and accounted for. In any event, mere delay in lodging of the FIR is
not always fatal to the prosecution case, though in some cases it might
militate against the bona fides of the prosecution. In the cases involving
kidnapping of young ones for extorting huge ransom, parents as well as the
investigating police invariably endeavour their best to locate the victim
rather than promptly lodging FIR for fear of death of victim, which may
sometimes prove to be counterproductive. We are, therefore, not inclined to
draw any adverse inference against the prosecution on the ground of delay alone
in lodging the FIR.
26. Non-holding of identification test is also no ground to discard
testimony of eye-witness and abductee who remained in custody of accused for
considerable period and in such circumstances identification of accused in
court at the time of evidence is sufficient. Further, identification parade is
not a requirement of law but only one of the methods to test the veracity of
evidence of an eye-witness who has had an opportunity to see the accused and
claimed to identify him. When witness has spent considerable time with accused
and had an opportunity to take a good look at him, holding of identification
test would not be necessary. Reliance can be placed on the case of Dr. Javed
Akhtar v. The State (PLD 2017 SC 249), Muhammad Akbar v. The State (1998 SCMR
2538) and The State v. Haider Zaidi and 2 others (2001 SCMR 1919).
27. All the witnesses including abductee have fully supported the case of
prosecution against the appellants, recovery of abductee from the possession of
appellants, encounter of the appellants with police and receiving of injuries
during encounter by the appellant, death of one of the accused during
encounter, recoveries of unlicensed weapons from appellants including empties
which were sent to FSL, report of chemical examiner regarding blood stained
clothes of deceased accused and blood stained mud, collection of CDR of Mobile
of accused so also abductee, recovery of mobile phone and the SIM which were
used for demand of ransom have proved the case of prosecution and the evidence
of star witness (abductee) being trustworthy, inspires confidence and cannot be
easily discarded on flimsy grounds or on technical ones. Reliance can be placed
on the case of The State through Advocate General Sindh Karachi v. Farman
Hussain and others (PLD 1995 SC 1), The State v. Nazeer Ahmed and others (1999
SCMR 610), The State v. Haider Zaidi and 2 others (2001 SCMR 1919) wherein
Honourable Supreme Court of Pakistan allowed acquittal appeals passed by the
High Court and upheld the convictions awarded by the trial courts in case of
abduction for ransom.
28. In view of foregoing, we are of the view that prosecution has proved
abduction and recovery of abductee by and from the appellants through
confidence inspiring evidence of abductee Haji Noor Muhammad and SIP
Nizamuddin, which cannot be brushed aside. In such circumstances, reliance can
be placed on the case of Hakim Khan v. The State (2013 SCMR 777), Sajan and
another v. The State (2015 PCr.LJ 953) where under similar circumstances
conviction of the accused was maintained. The offence of kidnapping for ransom
is increasing day by day in our country and the purpose of punishment is to
change character of offender by keeping him away from criminal activities and
to prevent him from its repetition. In the present case a rebellious act is
appearing on the part of the appellants which needs to be checked timely.
29. In view of what has been discussed above, we found no merits in the
appeals, therefore, the same are dismissed.
MH/H-32/Sindh Appeal dismissed.
.jfif)
