MUHAMMAD SOHAIL S/O MUJEED SAAD & 02 ORS (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE COURT IN REG ARD TO REPORTING

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HIGH COURT OF SINDH

Composltion of Bench 5. B./D. B

Mr. Justice Mohammad Karim Khan Agha, r'(v T..rt- A!.i (*-1i - z^tt'p.

Date(s) of Hearing: i - ti - lS Decideon: l9- tl -2019

(a)Judgment approved for reporting Yes 14.-

CERTIFICATE

Certified that the judgment'/order is based upon or enunciates a principle of law */ decides a question of law which is of first impression / distinguishes / over- rules / reverses / explains a previous decision.

* Strike out whichever is not applicable

NOT I (i) This slip is only to be used when some action is to be taken (ii) lf the slip is used, the Reader must attach it to the top of the first page of the judgment.

(iii)Reader must ask the Judge writing the Judgment whether the iudgment is approved for reporting.

(iv)Those directions which are not to be used should be deleted.

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IN'I-HE I{IGH COURT O FS ln-DH AT KAIIACHI Spl. Criminal A.L lail APpeal No.137 of 2017

Presclrt:

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Apprllnnts: 'L l\,luhammad Sohail S,/o MuiPeb Saad, 2. Jarnsl'€d S/o- N,Iulramma,l lamer:1, '1. l'eer ltloiramrnatl S,/o. Mu jceh Saad through Mr. l[ohammad Hussain sluh

For 5tah,l Mr. lvluharMrad Iqbal Au?n, DePut) Prost:':utor Ccneral,

Date o[ hearing: t)7 l1 2|19

Dalc ol announ{ement: l9.t 1.2019

IUII(;Ntl:NT Mohammad Karim Khan Agha, J.- AppellanLs l\4ohammad Sohail S/o. Mureeb Saad, Jamshcd S/o. t,ft,hammad .lameel and Pecr Nlohamrnad S/o. N4uiecb Saad lmve prelerred this Criminal Anti-Terrorism Jail APPeal against the impuSned judgment dated 29.04 2017 Passed by the learned Anti-Terrorism Court No.\r, Karachi in Special Case 16 of 2014, F.l.R. No.239 of 2013 u/s. 365-.4/34 IrPC .ead with section 7 of ATA 1997 rcgistered at P.S. lthhdd Tora n, Karachi rvherebl all the aPPcllants have becn convicted and sentenced to R.l. for life. tlolvcver, thc ben€fit of s€dion 382-tJ Cr.PC lvas extenJed to the aPPellants

2.The brief lacts of the Prosccution case are that on 27.07.2013 at about 2130 hours complainant Faroo(l Ahmed son o{ Haii Jan rePorted at Pdicc Station Ittehad Tr)*'n that he was running his Pan Shi,P at Sector ll% Sadiqabad Ctrangi Town Karachi whilst his son Fayyaz age(l abotrt 25 years u,as a privatc Mcdical RcPreseniative. Thal one o[ ihe mohalla residcnts Rashid Ansari told hmr that he an(l l;ayyaz were.oming on their niotorc)(]lcs irom tvlurshicl Ht:spital Orangi Tot'n towards thcir house at about 1 5 hours when thev rcached near Abu Huraird Madrcssah lttehad town three persons who \4ere olt one nlotorcycle stoPPecl Fayydz r'!'hilsl thc.aid Ra-lrrJ An.ari tlut'to'ear staveJ bar'k wher the{ three P!'rsur)s/ tl

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kidnapped fayyaT along $'ith his motorcvclc KCC4414. on this infornration the complainant made a Phone aall lo layyaz on his mobi[' phone but his nu ber u'as not respondinS. Thc Fll{ was registeleLl Lr/s 5/34 PPC and the investigation lvas assigned kr SiO/SlP Anhar Hussain rvho on 2l].7.2013 inspccted the place ot incideflt and recorded thc statement of v\'itncsses. lVhelr the conrPlainant rereived a c.1ll for ransom the investlgation u'as transferred to AVCC. Insps:tor Saiid Ali ol AVC( $hile paholling in the arca u'as irJoro'ted b)'complainant that the.ulPrits of his casr, crimc No.239/2t)13 had called hirn u'ith Rs.2 lacs denranJ n€'ar l,raveyard Ittehad Town. Sin(e the Investigatinl Ofticer of that crrmt Khan Tariq \\'as not present hence this Inspecku was directed to take action who along with his pcrlice party and CPLC mernbers who werc picked up on the way conracted the complainant who t('ld him that he lr.:d Ito such am()Llnt lvith him but even lhen he llirertcd the (omPlainant to call the culprih in ords to hand over the rans()m amount. ihe .ompiainant stood at Bus Stop D-7 and the lnenrbers of the CI'LC and police hide there. At about 0215 houIs tlvo F,ersons arrived an(i ileman(lcd money from complainant but thc police party caught both ol them who discloscd their names as luohamrna(l Soltil son of Nluiecb Saad an.l .lamshed so ol lvlohdmmad ]amecl. Ihc."_ were searched al,ld [ronr Soltall onc mobile plrone Nokia and cash Rs.70/- lYas relovered 'lhe complainant recognized the said mobiie which vlas of his son. From lamshed Rs.1l0/- was re(overed ard thc lrtsPcctol arrested the a.cuse(l under mashimama on the spot- He mdde interrollati('n from tlrc ac.uscd at the spotand both volunteercd to point out thc place ivhere the abdu(tee r.r'as lx}rng held. Thc a.cused ied the police party to a housc situated near .1 hill atter passinil the gral,eyard of lttchad lolvn Ihe pohce Party surrounded that house and entered thcrein. ln thc courtl,ard (n that housc r)ne person lvas slecPing on a cot, hc was apprehended and dilclosed his nanre as Pecr \4oha:nmad son ol Mujeeb Saad rvho rvas searched an.l lls.120/- was recovcrcd irom hirn. ln a rDom in the housc ont'Pcrson was founti tied to a .ot who was releascd and disclt)sc(l his nanre as lvlohammad Fayvaz. one motorc)cle bearirlg NO KCC-4.1l4 lvas standing in thc room which Nlohammad Fayyaz hatl becn riding. Thl: InsPsctor atrpstcd PecI Molrammatl .rnd thereaftcr h,uded over thc accuseJ, mashirnarnas an(l pr(,perty kr InvcstiBating Officer Khan Tart1. On 01.08.2013 the said Inspector Khan Tarnl inspected thc pldc€ of ilrcidcnt.

During interrogatittn he (rame to knoiv that a'tual ndme of Mohamma(i then on Sohail son ot Mujeeb Saad l,'as Mohammad Shahitl son of Mr'rieeb clnupletion of investigation he submittcd the before the trial court' 'hallan

The charge was framed against all thrc"c a(cused to rvhich all thr

accused Plead not guilty and claimcd trial.

4.lhe Prosecution to Prove the charge cxamined 07 PW's e),hibite(l v,rriou\ documcnts .tnd (nher ilcms in suPPort oi th,' prosecution case rvherc after th€ Prosecution closed its side- Thf appellans/accused Pcrsons rccolded their statements under section Cr.PC claiming false imPlication by the Police as they refused to Pay thcm

a bribe and that thcy }\'erc not a e5ted from the sPot but el*-where None of the accused howevcr either exanrined themsclves on oath nor called any witness in suPPort of their r€spective defense case

5.Learned Jurlge Anti-Terrorism Court No V, Karachi Drvisi('r aftcr hcaring the learned counsel lor the Parties and assessnrent of cvid€n(! available on record, vide the impugned judBNent dated 29 04'2017' aPPeal cortvicted and sentenced the appellants as stated abovc, hencc this has be€n Iiled I,) cach aPPella t agair$t his conviction'

6.fhe facts of thc casc as lvell as eviLlence Produced before the trial court find an elaborate mention in the imPugned iud8mcnt' tlrcrcfore' th(' unnecessarv same are not reProduced here so as to a!'oid 'luPlication and repctition.

7.Mr. Muhammad Hussain Shah, learncd c('unsel for the 'PPellanls has contenlied that the e,'e witncsses werc Put uP rvitnessesi that the

appeuants had been fixed by the Police for not Paying thcm a bribe which theyhad demandcd; that all the $'itnesses r''v'ere interested and as such could rrot be relicd ulrory thdt the requirernents of S 103 CI'PC had not the been made; that thc abductee'5 nrotor bike \'!as not Produ"d betorc court and that lor an!' one of thc above reasons all the aPPcllants were entitle.l to be acquitted of the charge based on the benefit of the doul't being extended to them lledidnotrelyonany case law insuPPortofhis

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L On the olher hand learfled DPC for the State has fully supPorted tht' impugned ,udgment $rhich according to him did not require interfercnce as the prosecution had proved its case against all the aPPellanl" throu8h cogent ard reliable evidcnce bcyond a reosonable doubt ln Parlicula! he pointed to the reliabiliB oI the IrW's; that tlie tu'o o{ the aPpellants (Sohail aml ]amshed) r4,ere arested ircm the sF(it whilst c!)ming to collect the ranson demand; that the abductee's mobilc Phone !!-as recovered from Sohail; that Lotll the appellants had volurtarily takcn the Police and the complairrant to a housc lvhcre the abdu.tce was found tied to a (ot whilst being guarded by appellant Pecr Mohammadi that thc motorbike ol the abductee had also been recovered frdn the Place q'here he was bcing held captive arrd as such thc aPPeals strould be dismissetl in rcsPect of ta.h appellani. ln support oI his contentions he Placecl reliance on State V Farman Hussain (PLD 1995 SC 1) and Junaid Rehnan v 'I he Slate (l'LD

2011 K 1135)

9.l{e have heard thc arguments of the learncd counsel for the Parties, gonc through the entire evidcnce rvhich has beetl read out by the appellantlt and the impuBned judgircnt with their able assistance and have considered the rclevant larv including that cited at t}le bar.

10.We hawc come to lhc conclusi()n based on our reassessnlent oi the el,idence on lecord that the Prosecution has btcn able to Prove its aase against each of the aPPellants be,"-ond a reasonable doubt for the fdlowing

(a)That the IIR has been lodged bv the crrmplainant without anv unreasonable delay irr a case oi kidnapping for ranscnrr and as such there w,as no time tu aorlcoct a false case.

(b)That the eve witness PW 3 lVluhamnred Rashid who salv the abducte. PW 6 Fayyaz Ahmetl l*ing kidnaPped by the aPPellants was not a chance witness as he was workin8 irl the same comPany as the atxiuclcc Hilton Co. and thus as they livcd in the sanre area there w.ls ev€ry rcason Ior them to be travclinll on motor bikes ncar ca(h other when the ktinapping took Place whist they lvere on their \a'ay home. His evidence about the kidnaPPing was relayed timely kr thc complainant rvhich ;s rcProduced by the .omplaindnt in his e\,idence. He did not give any hulia or descriPtion of the appcllants bc.ausc he was too far awa)'(15/4{} mctres) hen.c the FIlt lodged by thc complainanl father docs also not give any huila or dcsc ption of the appellaits as it rvas based on the evidencc prcvided to him by this eye witness PW who saw the aPpellants atxlucting the accused bv lorce by nrolorbike. llis e!idel\'c :l

regar(ling the kidnapping is also corroborated by PIY 6 Ahmcd Fayyaz the abductec who was later recoveretl bv the police He h.1s no enmity with the appellants and had no reason kr lalscly implicate thGm. tIc was unscathed during cross cxamination and as \uch we bclieve his cviden(e that the abductee,,vas ktlnappetl bv thD appellarts whilst he was travoling on motor bik€ cominB from Itteha(l town since il $ reli.lble, trustlvorthy and cortidcnce rnspiring

(c)That ihe complainant Plv I Muharnnred Far(,(rq corroborates thts evidenc€ (,1 PW 3 Muhammed Rashid ns to hoh' he came to know <rf the kidnapping and the lodging oi the FIIt. That lvhile agrccmg to pay the ransom to the appellants in consultation with the police and thc CPLC he lvas present lvhen the poli(e arrested the appellants on thc spot at the time lvhen he was m€ant to pay the r.rnsom to the appellants. Ihus, since thc appellants Sohail and lamsherl were arresled on thtr spot the question ol wrondul identification dues not a.isc. llis s.rn's mobile which had becn u:retl to make thc ransom demand was also re.overed trom the appellant Sohail in his plesence which corroborates the ransom calls as per evtlencc of his son PW 6 Ahmc.l Fayyaz the ib(lu.tce who w,ls L-tter recovered by thc police in the prcsence nf the .omplain.rnt. t he co'nplainant di(t n('t know thc appcllants Sohail and ianrshcd and ha(l no reason to falsely impli.ate them in this casr

(d)ThAt PW 5 Snjjad Ali who raas in"speck)r at the A\|CC h'ho arrang(d with thc complainant the plan to pa-v the ransom and then he h,ould arrcst thc appellants iI the, arriv.d als() had reliable people from the CIrLC raith him. His evidcnce is fully corroboralcd by the complaiMnt PW 1 Ivluhammetl Farooq regarding the events Ieading up to the arrcst of the appellants Si)hail and Jarnshed r,r'hen they wcre rlenunding the ransom lrom the complainant He als(, arrestcd b()th ol thenr on the spot and recoveretl the complainant's son's rnobile lrom appcllant Sohail. He had no enmity with the appeilants Sohail and Jamshed and no rearorl to falsclY inrplicate Lhem in this case. It is non'well scttled that police wiln.'sse$ are .ts reliabl€ as an! other witncss prr)vided lhat n(, ill n'ill, malafiilc or pcrsonal intere5t ir allege.l against thcm and none rvas in lhis case. In this ruspcct reliancc ic placed on Riaz Ah rad v slate (200.1 S(:MR 988), Zafar V Stale (2008 SCMR 1254) arld Abbas V State (2008 scMR 108)

(OTllai immediately on their arrest apFellants Sohail anrl Jamsht'rl admitted the kidnapl,ing an(l straight away took thu Polxe .u1!l tlre iJompidinant to thc hrnrre wherc the abductee r.vas luDg held antl u,he:e the abductee was recovercd fronr. On such slrort noticc li vras ncither possible tor c,ither the police or the comPlainant lo kno\,/ whcre the.lbductee was t]cing Leld and thus in our vieir the appellants Sohail and rdnrshed inlmediately l.lkint lhem to the place where the abdu{tee was being held olt their Pointdtion is important evidcn(e atainst thelr1.

(l)At lh(| hou\u lvherc appellnnts Soh.ril antl lamshcd kr)k thc poljce dppellant I'eer Muhanmcd rvas iouncl itrlarding the at)dLrctee and wrs arrestcd (,n the spot. The al uctce tvas

3qq re(overe(l from thc house wh() \^,hilst Sivin8 eviLlcnae.orrobordtes the ransom demands rnade b)' lhe aPPellants through his Phonr PW 6 Ahmed Favyaz the abductec concerning his tccolery anr'l release lrom his illegal confinement also corroborates the c(nrrplainant PIV I Muhammed laroorl and PW 5 Sajjad Alt. Again the at ductee had no errnity with the appellants and had no reason to falsely implicate them in this case.

(g)That wh€n thc appellants Sohail and Jamshe(l arc nrrested on thc spLrt try the poli.c atterrpting to rcceive the ransom denrand from the complainant *'hen they irrunediately disclose that they B,ill take thc police to thc place rehere thc atrlu(tec is kiDg hel(i capti!,e it is only natlral tlut the complainant beinS the rather of the abductec lvould accompany the police to the hcruse where his son r.r'as allegedly heing held fut ralrsom. Thus, the romPlainarris prrscnce al lhc tlme t)l the recovcry oi lris.lbd(r( tcd son rs based or1 natr:ral hunran condu.t.ud is thus both full-v crplainablc nncl understan(lable

(h)As pcr Mashirman of arrest and rercverv the bjke drivcn bv th(' ab(lucLce at the time oi his abtluclion was trund at ihe Plact where he was being hcld caPtivc cven i{ it lvas not prlduce(i in court u'hich fully fits in lvith thc prosecution ca$. l'hat thp roPe used to tie the abductee *'as aiso recovered frorn where he rvas being hell captive.

(i)It is true that the complainant a d the atductee are intere\ted q,itnesses bcing relatcd to ea.h otler (father and son) but this is quite coirmon in kidnap fr)r ransom cases and it is t{ell settle(l Lr\, no$' that just becaLrse th(, PW's ars rclate.l this is rlo reason hr disregard thcir evidcnce espccially whcre n() enmity, ill will or personal interest has bcen sho\^in to exist betlvern the aPpcllnnts an(l thc interestcd rvihresses. ln this respcct reliancc is placed on Junaid Rehmafl's case (Supra)

6)that there are nr) nlajor cr)nlraiiictions in thc cviden(c of tfu' PW's of any tuateriality such ns to throw any doubt on the pro$cuhon case. It is .llso hcll settled bv noh' that minor contradictions in the prose(ution case will not br' of anv significance. ln this respect reliance is place(l on zakir Khan v Srare,(1995 SCMR 1793). ln fa.r we find that the prostrution evi(lence is consistent in all material respecls and iully supp('rts the prose(ution cas! [roni start to finish bi an unbrokcn chain of cviden(-e linking th{r app€llants to thc kidnapPing ol tho abdu(t('e to the rei:overy ol thc abdu.tcc.

(k)In short we iiod that the evi(len(c of all thr' ke1' l'!V's nanrcl)' PW 1 Muhanrmed Farooq, PlV 3 l!{uharnmed Rashicl, PtV 5 SaijarJ Ali antt PW 6 Ahmed layyaz thc abductee t(i all be r€liablc, rusr rvorthy and confidencc inspirin8 none ol whrur were damagerl during cross examinatron whose cvidence we believe and whiah is coroboratcd by thc abductee being ratovered on the pointation of lhc appellants Sohail and Jarnshcd irhen the othcr P!\"s could haYe no possible idea i{4)erc the al)ductee h.1s bein8 hel(l crptive, the r{rcovered motor bike vr'hich was beinS driw€n bv the al)ductee di

3\t the time of his abduction and the rccovcre'd roPe which $/as used to tie the abductee to the cot. In this respect relian'e is Pldced Lrn Muhammad Etsan v. The Srate (2006 SCMR 1857)'

11.Thus, since for the rcasons discussed above we have found that thc proseculion has becn able to prove its case against each of the aPpellants bevond a reasonable doubt the aPPeals are dismisscd in rcsPccr of ea'h of the apl)ellants and the imPulined iudEment is uPhe]d al('ng with its convi.tion and s€ntences in resPect of each oi the aPPellants which are maintained.

12 I he appeals arc disP()s€d of in the above tcrnrs

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