NAIMATULLAH PHULPOTO, J.--- Through this appeal, we intend to dispose of Special Criminal Anti- Terrorism Jail Appeal No,12 of 2009 filed by Appellants Shahzad Masih, Nisar Ahmed and Munir Masih as well as Confirmation Reference No,01 of 2009 which arise out the judgment dated 14.02.2009 passed by learned Judge, Anti-Terrorism Court No,1, Karachi in Special Case No, 46 of 2007, whereby learned Judge has convicted the appellants under section 302/34, P.P.C. r/w section 7(a) of Anti-Terrorism Act, 1997 and sentenced them to death and imposed fine of Rs,50,000/- each. In case of default in payment of fine, it was ordered that appellants would undergo R.I. For 6 months more. Appellants Shahzad Masih, Nisar Ahmed and Munir Masih were also convicted under sections 365-A/34, P.P.C. r/w section 7(e) of Anti-Terrorism Act, 1997 and sentenced to imprisonment for life each and their properties were forfeited to the extent of Rs,1 lac each.
Appellants were extended benefit of section 382-B, Cr . P. C .
2. Brief facts of the prosecution case as disclosed in the FIR are that on 03.10.2007, AS! Mashkoor Hassan of P.S. Baloch Colony received statement of complainant Muhammad Shahid alleging therein that he resides in Bungalow No,10-A/3, Phase-VI, Gulf Course No,5, DHA, Karachi. On 02.10.2007, his driver namely Irfan (now deceased) in Corolla Car bearing Registration No, AEM-921 left at 1:00 p.m. To Beacon House School to take his nephew Muhammad Raiyan from school, but did not return back to home till 2:00 pm. Complainant party started search and at 2:30 p.m., Mst.
Sadaf (mother of child) telephoned to her driver on mobile but it was attended by some unknown person who disclosed that driver Irfan and boy Raiyan have been kidnapped for ransom and demanded Rs, 50 lacs for their return. Culprits asked Mst. Sadaf that he would call her after two hours and mobile was switched off by him. Complainant reported the matter to P.S. Frere. Thereafter, it 'is alleged that accused persons contacted Mst. Sadaf several times on her mobile and asked to make arrangement of the ransom till 9:00 pm. Deal was finalized for payment of Rs,4,92,000/-. It is alleged that culprits directed Mst. Sadaf to bring ransom near mosque at Express Way Furniture Market. The brother-in-law of the complainant namely Abdul Salam and Mst. Sadaf reached at pointed place with ransom of Rs,4,92,000/- at 9:30 pm. It is alleged that Mst. Sadaf was asked by the culprits to put ransom amount in front of furniture shop and proceed to the service road where she would get boy, car and driver. Mst. Sadaf went to the service road. She contacted the culprits on mobile. It was 9:45 pm when brother-in-law of complainant and Mst. Sadaf saw victim boy Raiyan weeping there, Mst. Sadaf again contacted culprits about driver and car, on which culprits replied that driver would reach safely to her house after two hours, then the mobile phone was switched off. Complainant party was informed by boy that when he was returning with driver in a car from the school and car reached at Frere Traffic signal at 1:30 pm, two persons appeared on motorcycle, who were armed with pistols. They demanded cash, mobile and key of the car from the driver to which driver refused. Thereafter, boy disclosed that culprits fired upon driver which hit him at his head. Boy was taken by the culprits on motorcycle and culprits gave him juice and boy slept and left him near mosque. Complainant received information that car has been parked under the Baloch Colony Bridge where dead body of his driver was lying. After receipt of such information, complainant contacted the police of PS Baloch Colony and police shifted dead body of driver Irfan to Jinnah Hospital. After postmortem examination, dead body was handed over to the legal heirs of the deceased. FIR was recorded vide Crime No, 222/2007 under sections 365A/302/34, P.P.C. On 03.10.2007.
3. After registration of FIR, investigation was carried out by SIP Tahir Naseer. He recorded statements of PWs Abdul Salam, Dr. Aamir, boy Raiyan and others under Section 161, Cr.P.C. PW Dr. Aamir identified Car No, AEM-921 Toyota Corolla of complainant party. I.O. Collected call data of mobile Nos.0322-3513432, 0345-6156318 and 0300-2689323. I.O. Also collected cassette containing conversation regarding ransom. Empty bullet was recovered from the car it was sent to the Ballistic Expert for report. I.O. Received spy information on 08.10.2007 that accused involved in this crime were present at graveyard of Azam Basti, I.O. Proceeded there, he apprehended accused in presence of mashirs. From the possession of appellant Nisar I.O. Secured one .30 bore pistol and four live bullets. From the possession of accused Shahzad, I.O. Secured one .30 bore pistol and three live bullets in presence of mashirs and prepared such mashirnama and from accused Munir Rs,50/- were secured. Appellants named above had no licenses for the weapons carried by them and cases were registered against them on behalf of State under Section 13(d) Arms Ordinance 1965 at PS Mehmoodabad.
1.0. Sent Arms to Ballistic Expert for report. During interrogation accused Shahzad and Nisar led the police party to house and produced two SIMs, used in the mobile phone during the commission of the crime. I.O. Secured the same in presence of mashirs and prepared such mashirnama. Accused Shahzad produced Rs,35,000/- before police lying under the mattress and also produced two SIMs which he had kept in a tea cup. I.O. Secured the same in presence of mashirs and prepared such mashirnama. On the pointation of accused Nisar I.O. Recovered Rs,40,000/- from a room, from black colored bag and he prepared such mashirnama in presence of mashirs. After usual investigation, challan was submitted against the accused before learned Administrative Judge, Anti-Terrorism Courts at Karachi under the above referred sections. Case was transferred to learned Judge, Anti-Terrorism Court No,1, Karachi for disposal according to law.
4. In order to prove its case, prosecution examined the following witnesses at trial:--
1. P.W-1 Complainant Muhammad Shahid at Ex.5.
2. P.W-2 Raiyan Shah at Ex.6.
3. P.W-3 Abdul.Salam at Ex.7.
4. P.W-4 Salam Khan at Ex.8.
5. P.W-5 Zakir Rahman at Ex.9.
6. P.W-6 Mr. Asif Ahmed Judicial Magistrate at Ex.10.
7. P.W-7 Dr. Jagdesh at Ex.11.
8. P.W-8 Dr. Aamir at Ex.12.
9. P.W-9 Imran Ahmed Qazi at Ex.13.
10. P.W-10 Waheed Iqbal at Ex.14.
11. P.W-11 SIP Ameer Afzal at Ex.15.
12. P.W-12 ASI Sardar Muhammad at Ex.16.
13. P.W-13 PC Khalil-ur-Rahman at Ex.17.
14. P.W-14 PC Syed Lal Hussain Shah at Ex.18.
15. P.W-15 SIP/I.O. Tahir Naseer at Ex.19.
16. P. W-16 Mrs. Sadaf Shah Khalid at Ex.29 Thereafter, prosecution side was closed at Ex.30.
5. Statements of accused were recorded under section 342, Cr.P.C. At Ex.22 to 24, in which accused claimed their false implication in this case and denied the Prosecution allegations. Accused further stated that they were shown to prosecution witnesses before identification parade and I.O. Had demanded bribe from them and on their refusal, they have been falsely challaned in the present case. Accused denied receipt of ransom from mother of victim boy and its recovery. However, accused Nisar Ahmed examined himself on oath under section 340(2), Cr.P.C. At Ex.25 in which he has raised plea that he was arrested by police from Rawalpindi on 08.10.2007 at 9:00 pm.
Thereafter, he was brought to Karachi where he was maltreated by the police and falsely involved in this case. D.W Ghulam Mustafa at Ex. 26 has been examined in his defence. Accused Munir Masih also produced DW Daniyal in his defence. Thereafter, on the application of the prosecutor, P.W-16 Mrs. Sadaf Shah Khalid was examined at Ex.29 and further statements of all the accused were also recorded under Section 342, Cr.P.C. At Ex.31 to 33.
6. The learned Judge, Anti-Terrorism Court-I, after hearing the learned counsel for the parties and assessm ent of the evidence, convicted the appellants/accused and sentenced them as above.
7. The Trial Court made Reference to this Court for confirmation or otherwise of death sentences awarded to the appellants.
8. The appellants/accused being dissatisfied with the impugned judgment of the learned Trial Court, filed the aforesaid Criminal Appeal before this Court.
9. We have carefully heard the learned counsel for the appellants, learned APG for State and have perused the evidence minutely. Prosecution case is based upon following pieces of evidence:
(i) Ocular evidence.
(ii) Medical evidence.
(iii) Kidnapping for ransom and receipt of ransom.
(iv) Point anon of house from where sims used by accused in the crime were recovered.
(v) Recovery of the empty bullet car.
(vi) Positive Ballistic Report.
(vii) Recovery of ransom.
(viii) Pointation of the place from where boy was kidnapped for ransom.
(ix) Call data record.
10. The sole point for determination in this appeal is, whether the appellants were rightly convicted for the offences with which they were charged?
11. In order to prove the unnatural death of driver Irfan, prosecution has examined PW-7 Dr. Jagdesh, MLO Jinnah Hospital, Karachi. Medical officer deposed that on 03.10.2007, he was posted as MLO JPMC. On the said date SIP Ameer Afzal brought dead body of Wan son of Toor Khan for postmortem examination he conducted the postmortem of deceased, who was male Muslim aged about 28 years, average built, rigor mortis fully developed, features identified, no sign of decomposition, tongue inside the mouth, pupils fixed and dilated. Medical officer found the following injuries on the person of deceased: i) Lacerated punctured wound 1 c.m in diameter on right parietal region, inverted margins, wound of entry.
' Lacerated punctured wound 2 cm in diameter on left parietal region, everted margins, wound of exit.
'HEAD ' Vault of skull fractured, right parietal bone and left parietal bone, sutures and meninges damaged, brain matter damaged, cavity full of blood.
'NECK ' All the structure intact, no any abnormality detected in neck or anyway.
'THORAX ' Ribcage intact, both lungs intact and congested, heart intact and congested, no abnormality detected.
'ABDOMEN Stomach contained digested food material and small intestine contained semi-digested food particulars, liver spin kidney are intact and congested, no any abnormality detected in abdominal cavity. Time between injuries and death within 1 minute, time between death and post mortem 1 to 2 days.
' The Medical Officer was of the opinion that death of deceased occurred due to cardio respiratory failure due to acute haemorrhagic shock and acute head injury resulting from firearm weapon.
Medical officer issued such death certificate.
12. Learned Advocate, for appellants did not dispute unnatural death of deceased. We, therefore, hold that deceased died his unnatural death as described by Medical officer.
Prosecution Evidence
13. P.W-16 Sadaf Shah Khalid has narrated the entire episode of incident being mother of boy Raiyan Shah and stated that on 02.10.2007 her son Raiyan Shah went to Beacon House School situated at Clifton at 8:00 am with driver Irfan in Corolla Car No, AEM-921. The same driver went to Beacon School to bring home above named child froni the school at 1:15 pm. Driver did not bring the child to the home upto 1:45 pm. Mst Sadaf made a call to her driver but it was not responded.
She was worried as her husband was also out of country. She called her brother-in-law namely Shahid and informed him that her son Raiyan has not reached at home from school. Again Mst.
Sadaf dialed mobile of the driver but it was attended by one unknown person, who told Mst. Sadaf that her son and driver have been kidnapped for ransom and demanded ransom of Rs,50 lacs. In the meanwhile, she stated that her brother-in-law came at her house and incident was narrated to the relatives and CPLC. Thereafter, CPLC officer came at the residence of Mst. Sadaf Shah and handed over her instrument/device for recording the conversation with culprits on cell. Thereafter, Mst. Sadaf received two calls on her Cell No, 0300-2689323. She also received calls from different numbers. Lastly, at 9:00 pm, ransom/ deal was finalized by the culprits with Mst. Sadaf in the sum of Rs,492,000/- and they asked Mst. Sadaf to bring ransom at Expressway, Manzoor Colony.
Thereafter, she along with her sister's husband namely Abdul Salam went to the pointed place and she was asked by the culprits to put the ransom amount in front of the furniture shop and move forward on the same road, where she would find her son at some distance. She did not find her son therefore, she again gave call on the mobile of culprits, who asked her that she should return back towards the same furniture shop. She returned back and found her son was standing near Ghousia Masjid. Mst. Sadaf called kidnappers and enquired about the driver and car, on which they replied that she would get the car and driver soon, thereafter, they switched off their mobile phone. Mst.
Sadaf returned to the house with her child. On the next day, her brother-in-law P.W- Shahid informed her that dead body of driver has been found in a car. In the cross-examination, she has denied the suggestion for deposing falsely.
14. P.W-1 Muhammad Shahid has deposed that victim Muhammad Raiyan is his nephew. Present incident occurred on 02.10.2007. On the same day driver Irfan had taken the nephew of complainant to the school and went to pick child to home at about 2:00 pm, but driver and child did not return home. Thereafter, Mst. Sadaf contacted the driver but call was attended by one of the culprits, who demanded ransom of Rs,50 lacs. He has stated that mother of Raiyan namely Mst.
Sadaf received several calls for ransom and at 9:00 pm deal was finalized in the sum of Rs,492,000/-. Thereafter, Mst. Sadaf along with Abdul Salam proceeded to the pointed place and put ransom in front of the furniture shop and found boy weeping on the road. The sister-in-law of the complainant again contacted the culprits for return of driver and car, they kept her on false hopes. On 03.10.2007, complainant received a call from P.S. Baloch Colony that car and dead body have been found under the bridge of Baloch Colony. Complainant reached at Jinnah Hospital where dead body of driver Muhammad Irfan was lying. He lodged such report and produced it at Ex. 5/A. After postmortem examination of the deceased dead body was handed over to his cousin namely Zakir Rahman. In the cross-examination, he has denied the suggestion for deposing falsely against accused.
15. P.W-2 Raiyan Shah victim boy, who was kidnapped for ransom, aged about 6-1/2 years, at the time of his examination by the trial Court. He has deposed that in the month of Ramzan, he went to the Beacon House School with his driver Irfan in the morning. After school hours, he was returning in the car with driver and when the car reached at signal, two persons sat down in the car. Both the culprits aimed guns to him and directed driver to follow their instructions. Culprits asked driver to proceed to the bridge and they fired upon driver Irfan. Trial Court in the deposition has recorded note that boy Raiyan Shah identified accused Shahzad that he had fired upon driver. Thereafter, car was driven to the bridge and shirt of boy was blood stained and it was changed by culprits. He was taken to the house on motorcycle where they gave him water to drink and he slept. When he woke up culprits left/released him near mosque. Child witness clearly stated that person who was standing on the left side was sitting in the car and child witness pointed out accused Nisar Ahmed who was sitting in the car while accused standing on the right side came on motorcycle and took him to the house on motorcycle. In the cross-examination, child witness innocently replied that he has been tortured and accused were shown to him in the Court and he came three times in the Court for evidence. However, child witness has denied the suggestion that he was deposing falsely at the instance of some body and has categorically stated that whatever happened with him in the month of Ramzan, he has deposed true facts.
16. P.W-3 Abdul Salam has stated that on 02.10.2007, he came to know about incident at 3:00 pm.
He went to the house of Shah Khalid and he saw that family of boy was negotiating with culprits on mobile phone. Culprits demanded Rs,50 lacs but finally amount of Rs,492,000/- was settled.
Thereafter, he along with Mst. Sadaf proceeded to Baloch Colony furniture market. On the way, Mst.
Sadaf and culprits were in contact and the culprits asked to put the ransom in front of the door of one furniture shop and proceed ahead, they saw boy weeping near Ghousia Masjid. On the next day, he came to know that car has been found by the police under Baloch colony bridge in which there was a dead body of driver. He went to Baloch Colony bridge, where police had already reached and saw one empty bullet lying in a car. In the cross-examination, he has denied the suggestion for deposing falsely against accused at the instance of the police.
17. P.W-4 Salam Khan stated that on 03.10.2007 at 12:00 noon he received information from Zakir Rahman that driver Irfan has been murdered and his dead body was lying under the bridge of Baloch Colony. He further disclosed that police had taken dead body to Jinnah Hospital. P.W. Salam Khan went to Jinnah Hospital where he met Zakir Rahman, Ameer Zada and Shahid; He saw dead body of Irfan. He produced inquest report at Ex.8/B. Thereafter, dead body was handed over to Zakir Rahman in his presence.
18. P.W-O9 Imran Ahmed Qazi has stated that on 02.10.2007, he was going from his office situated at Airport towards his house via Jinnah Hospital road and when he reached near Lili Bridge, there is road signal. At that time, he stopped his car and saw one white corolla car on left side. He saw one person was standing near car he forcibly asked driver to go on the back seat of the car. He also saw two more persons, one of them carrying gun aimed it at driver. Second sat on the driver seat when driver came on back seat and third one was on motorcycle and he followed the car, driven by the culprits. He identified accused persons and stated that accused, who pointed pistol was Shahzad and second accused was Munir who was on motorcycle and third one was Nisar who was driving car. There was a kid/boy in the car who was wearing white colored shirt and was sitting on the rear seat of the car. He thought that it was car snatching or mobile snatching incident. He noted down the number of car in his mobile, it was AEM-921. On 04.10.2007, he read in the newspaper that car has been found abandoned by the police with above mentioned registration number under the bridge of Baloch Colony, in which one dead body has been recovered. He then informed the incident which happened before him to the police of PS Frere. Police recorded his statement. He identified accused persons in the identification parade before Magistrate. In the cross-examination to learned counsel for the appellants, he has denied the suggestion that he was deposing falsely.
19. P.W-08 Dr. Aamir has deposed that on 02.10.2007 at 5:30 p.m., he was going from Tariq Road to his clinic situated in Azam Town in his car. When he reached near Manzoor Colony Chowk in front of Friends CNG Station, one car blocked his way. He gave horn but the car driver did not give him way.
After 2/3 minutes car started. He talked with driver. He saw two persons in the car one was sitting on driving seat and another was sitting beside him. He saw both persons clearly. Dr. Aamir has stated that he was abused. Driver was wearing Shalwar and Qamees and other was wearing pant shirt. P.W- Dr. Aamir identified accused Nisar Ahmed as driver of the car and identified second one as Shahzad, who was sitting near the driver seat. He had seen broken glass of car on rear seat. On the next day, when he was coming from Mehmoddabad and was going towards Baloch Colony, when he reached near Sheerin Palace Bakery, he saw crowd standing there. He stopped his car and inquired from the people. Who had gathered there and came to know that dead body has been found in the car. He went to the car and was shocked to see that it was the same car which was seen by him one day before. Police recorded his statement and he identified accused before the Magistrate in identification parade and identified the car in the court premises. In the cross- examination he denied the suggestion that he was deposing falsely.
20. P.W-06 Mr. Asif Ahmed Memon Judicial Magistrate-X, Karachi South has deposed that on 10.10.2007, I.O. Submitted application before him for conducting identification parade of accused Shahzad Masih son of Yousuf Masih, Munir Masih son of Sharif Masih and Nisar Ahmed son of Siddique in FIR No, 222/2007 registered at P.S Frere. He held identification parade on 11.10.2007 through P.Ws Dr. Aamir and Imran Ahmed Qazi, after completing formalities. Both P.Ws identified the accused persons. He prepared such identification parade memo in presence of the mashirs. In the cross-examination Magistrate has denied the suggestion that no identification parade was held in his office and the mashirnama was prepared by the I.O.
21. P.W-11 SIP Ameer Afzal stated that on 03.10.2007 he was posted as SIP at Baloch Colony PS. On that day at 10:30 am he received information from 15 Jamshed that a car has been parked under the Baloch Colony bridge bearing No,AEM-921 Toyota Corolla wherein dead body was lying. On receiving such information, he went there and found a car wherein dead body was lying. He called Edhi Ambulance and shifted dead body to Jinnah Hospital. He referred dead body to MLO, JPMC for postmortem examination and report. He recorded statement of complainant Muhammad Shahid.
As from the statement of complainant place of incident related to PS Frere, copy of 154, Cr.P.C. And other papers were sent to PS Frere for further investigation through ASI ,Mashkoor Watoo. SIP secured one used bullet of .30 bore pistol from rear seat of the car in presence of mashirs. He saw rear seat cover was blood stained. He prepared such mashirnama. He further stated that PW Aamir appeared and disclosed that he had seen car in which two persons were sitting at about 05:30 pm.
He got address of Dr. Aamir and handed Over to I.O. PW SIP Ameer Afzal has denied suggestion in cross-examination for deposing falsely against the accused.
22. P.W-12 ASI Sardar Muhammad has stated that on 08.10.2007, he was called by SIP Tahir Naseer who accompanied him for investigation of above crime. Accused persons involved in this case were already arrested. Accused Nisar and Shahzad led police party to the house situated at Katchiabadi, Marwat Road, Street No, 10 and on their pointation police entered into the house and from one room accused Shahzad Masih produced Rs,35,000/- lying under mattress and also two mobile SIMs lying in a cup. Accused Nisar produced Rs,40,000/- from one black coloured bag. He has further stated that accused Munir led police party to his house situated in Azam Town from where he produced Rs,25,000/- lying under mattress and school bag containing school books, shirt and water bottle. He has further deposed that accused led police party a tone shop Al Habib Furniture and disclosed that they had picked up ransom amount in front of the shop put by the complainant party. Such mashirnamas were prepared. He has also stated that accused had also pointed out the place of payment of ransom. Accused also led the police to the place where they had left car after killing driver. He has further deposed that accused also led the police.Party to the Frere signal from where they had kidnapped child and driver with car and mashirnama of place of wardat was prepared. He was also cross-examined at length. He has denied the suggestion that he was deposing falsely at the instance of I.O. He has also denied the suggestion that no amount was produced by the accused.
23. P.W-13 Khalil-ur-Rahman has acted as mashir regarding arrest of accused persons and recovery of arms. He stated that on 08.10.2007, SIP Tahir Naseer 1.0. Took him for investigation in the police mobile at 2:00 pm. Police party reached at Azam Basti and entered in a graveyard where they found three culprits namely Shahzad, Munir and Nisar. Police arrested them and took personal search of accused and recovered one pistol and 3 live bullets from accused Shahzad, one NIC from accused Munir and one pistol and 4 live bullets and Rs,120/- from Nisar and sealed at spot. Such mashirnama was prepared.
24. P.W-14 Syed Lal Hussain has deposed that on 05.10.2007, he was posted as constable at AVCC.
He was called by RD SIP Tahir Naseer to a company with him to Governor House for investigation of Crime No, 222/2007. He has stated that I.O. Tahir Naseer got mobile data of Cell No, 0322-3513432, Cell No,0345-6156318 and Cell No, 0300-2689323 and audio cassette recording in between accused and relatives of abductee boy. Such mashirnama was prepared. He acted as mashir of recovery of call data and cassette.
25. P.W-15 SIP Tahir Naseer has conducted investigation of this case and stated that on 04.10.2007, he received copy of FIR of this case for investigation. He contacted complainant Shahid and recorded S.161, Cr.P.C. Statement of P.Ws Abdul Salam and boy Raiyan. He had also recorded statement of Dr. Aamir, who had identified Car No, AEM-921, Toyota Corolla parked in the AVCC office. He prepared such mashirnama and recorded S.161, Cr.P.C. Statement of Dr. Aamir. He received call data of mobile phones. He sent empty bullet to the Ballistic Expert and received report which he has produced at Ex.19/E. On 08.10.2007, he had arrested accused persons on spy information from the graveyard of Azam Basti in presence of mashirs and he secured pistol from accused Nisar with 4 live bullets and from accused Shahzad one pistol of .30 bore with-3 live bulets and Rs,100/- and from the possession of accused Munir he secured Rs,50/-. He prepared such mashirnama in presence of mashirs. He has stated that accused had no licenses for the weapons carried by them. I.O. Further deposed that after arrest of accused, he brought them to the police station. During interrogation accused Shahzad and Nisar led police party for production of the SIMs used in the mobile sets during crime and amount which was received by them as ransom and place of offence. He has stated that on the pointation of accused Shahzad and Nisar, he entered in a house and from a room on the plantation of accused Shahzad, he secured Rs,35,000/- lying under the mattress. Accused Shahzad also produced two SIMs which were lying in the tea cup. He sealed the same in presence of the mashirs, he has further stated that on the pointation of accused Nisar, from the same room, he recovered Rs,40,000/- from a bag of black colour. He prepared such mashirnama in presence of mashirs. Thereafter, accused Munir led the police ,party to House No,X-137, Gali No,8, Azam Town and entered in a room and on his pointation I.O. Secured Rs,25,000/- lying under mattress. I.O. Has further stated that accused Munir had also produced school bag in which there were books, one T-shirt and one bottle of water, which he secured in presence of the mashirs and he prepared such mashirnama. Thereafter, all the accused took police party to the furniture market and pointed out one shop Al-Habib furniture where complainant party put ransom Rs,492,000/-, which they had taken. Accused Nisar and Shahzad led police patty to the place where they fired upon the driver Irfan and left dead body in the car. I.O.
Prepared such mashirnama in presence of mashirs. Accused Nisar and Shahzad also pointed the place of Wardat. Such mashirnama was prepared in presence of mashirs. Thereafter, 1.0. Has stated that he produced accused before the Magistrate for conducting their identification parade through PWs Dr. Aamir and Imran Ahmed Qazi and accused were identified by witnesses before the Magistrate in the identification parade. I.O. Collected Chemical and Ballistic reports. On completion of investigation, 1.0. Submitted challan against the accused. In the cross-examination, I.O. Has denied the suggestion that he has foisted ransom upon the accused. I.O. Has also denied the suggestion that recoveries have been foisted upon the accused.
26. It was the entire evidence, which was brought on record by the prosecution.
27. Statements of accused were recorded under section 342, Cr.P.C. In which they have denied the prosecution allegations. Accused Nisar examined himself on oath and stated that on 08.10.2007 he was in Rawalpindi. At 9:00 or 9:30 pm, police came at his residence, arrested him and brought him at Karachi by air. He has examined in defence, DW-1 Ghulam Mustafa, who stated that accused Nisar Ahmed is his maternal uncle. On 07.12.2007 in the month of Ramzan police came at his residence and inquired about accused Nisar. He informed them that accused Nisar has shifted to Rawalpindi and is residing there. Then police took him to Rawalpindi and arrested accused Nisar.
He has stated that accused Nisar has been falsely implicated in this case. Accused Munir Masih examined in defence D.W-2. Daniyal, who stated that on 07.10.2007 at about 6:30 am, he was going to purchase milk, he saw that police was going to house of his maternal uncle. He informed it to his father and they came at the house of his maternal uncle and enquired from police regarding arrest of accused Munir but police did not disclose anything and took him in a vehicle.
Appellants/accused have denied other incriminating pieces of evidence.
28. Moulvi Iqbal Hyder, learned counsel for the appellants mainly contended that there was delay in lodging the FIR; evidence of child witness is highly doubtful; PWs Dr. Aamir and Imran Ahmed were chance witnesses and there are material contradictions in the prosecution evidence. He further argued that recovery of ransom from the house of Shahzad and Nisar was in violation of Section 103, Cr.P.C. It is further argued that all the prosecution witnesses are related inter-se and the manner in which identification parade was held by the Magistrate was doubtful. In support of his submissions he relied upon the cases reported as Ameer Hamza alias Hamza v. The State (2015 PCr.LJ 1402), Ayub v. Munsif and another (2015 PCr.LJ 369) and Shoukat Ali v. The State (2009 PCr.LJ 26).
29. Mr. Muhammad Iqbal Awan learned APG argued that there is direct evidence of child witness, P.Ws Dr. Aamir and Imran Ahmed in this case to connect the accused in the commission Of the offence. It is also argued that child witness during evidence before the trial court has specifically assigned roles to the appellants during commission of the offence. Learned APG has further argued that identification parade was held before Magistrate. P.Ws. Dr. Aamir and Imran Ahmed identified the appellants that they had seen accused persons. Lastly, it is argued that there is evidence in respect of ransom and recovery from them and prosecution has proved its case against appellants beyond shadow of doubt. Learned A.P.G. Relied upon the cases The State v. Haider Zaidi and 2 others (2001 SCM R 1919), Qashn and 3 others v. The State (1999 SCM R 2841) and Zakir Khan and others v. The State (1995 SCM R 1793).
30. We have carefully heard learned counsel for the parties, scanned the entire evidence and considered the defence plea/evidence.
31. We have come to the conclusion that prosecution has succeeded to prove its case beyond shadow of doubt for the reasons that incident had occurred on 02.10.2007 at 1330 hours and it was reported at PS Frere on 03.10.2007 at 1900 hours. Mst. Sadaf and complainant have fully explained delay in lodging of the FIR and stated that they were continuously making efforts to settle ransom with accused for safe recovery of boy and driver. Mst. Sadaf has stated that when her son did not return home from school, she made call to her driver but it was attended by one culprit and he demanded ransom of Rs,50 lacs. Finally culprits agreed to receive Rs,492,000/- and she took Rs, 492,000/- with PW Abdul Salam and proceeded to the pointed place and as per instructions of the culprits put ransom at the door of one furniture shop and proceeded ahead as asked by culprits and found her son standing in the street. Mst. Sadaf, again contacted culprits and enquired about driver and car she was kept on false hopes that she would get driver and car at home after two hours but without any result. On the second day car was found under bridge with dead body of driver. Matter was reported to the police. P.W-09 Imran Ahmed Qazi has stated that on 02.10.2007, he was going from his office situated at Airport towards his house via Jinnah Hospital road when he reached near Lili Bridge, there is road signal. At that time, he stopped his car and saw one white corolla Car on left side. He saw one person who was standing near car, he forcibly asked driver to go on the back seat of the car. He also saw two more persons, one of them, carrying gun aimed it at driver. Second sat on the driver seat when driver came on back seat and third one was on motorcycle and he followed the car, driven by the culprits. He identified accused persons and stated that accused, who pointed pistol was Shahzad and second accused was Munir who was on motorcycle and third one was Nisar who was driving car. There was a kid/boy in the car who was wearing white coloured shirt and was sitting on the rear seat of the car. He thought that it was car snatching or mobile snatching incident. He noted down the number of car in his mobile, it was AEM-921. On 04.10.2007, he read in the newspaper that car has been found abandoned by the police with above mentioned registration number under the bridge of Baloch Colony, from which one dead body has been recovered. He then informed the incident which happened before him to the police of PS Frere. Police recorded his statement. He identified accused persons in the identification parade before Magistrate. P.W-08 Dr. Aamir has deposed that on 02.10.2007 at 5:30 pm, he was going from Tariq Road to his clinic situated in Azam Town in his car. When he reached near Manzoor Colony Chowk in front of Friends CNG Station, one car blocked his way. He gave horn but the car driver did not give him way. After 2/3 minutes car started. He talked with driver. He saw two persons in the car one was sitting on driving seat and another was sitting beside him. He saw both persons clearly. Dr. Aamir has stated that he was abused. Driver was wearing Shalwar and Qamees and other was wearing pant shirt. P.W. Dr. Aamir identified accused Nisar Ahmed as driver of the car and identified second one as Shahzad, who was sitting near the driver seat. He had seen broken glass of car on rear seat. On the next day, when he was coming from Mehmoodabad and was going towards Baloch Colony, when he reached near Sheerin Palace Bakery, he saw crowd standing there. He stopped his car and enquired from the people who had gathered there and came to know that dead body has been found in the car. He went to the car and was shocked to see that it was the same car which was seen by him one day before. Police recorded his statement and he identified accused before the Magistrate in identification parade and identified the car in the court premises. Accused were arrested on spy information on 08.10.2007 from the graveyard of Azam Basti. Police recovered .30 bore pistol with 3 live bullets and cash of Rs,100/- from accused Shahzad Masih. From accused Munir Masih recovered Rs,50/- and from accused Nisar police recovered one .30 bore pistol with four live bullets in presence of mashirs. Prosecution has brought on record that accused Shahzad Masih and Nisar Ahmed led the police party to a house and produced two SIMs, Rs .35,000/- and Rs .40,000/-. Accused Munir also led police party and produced Rs,25,000/- as well as school bag, bottle of water and white shirt Appellants also pointed out the place from where they had kidnapped boy and committed murder of driver and left dead body of the driver in the car. In this case evidence of child witness is also quite reliable. Child innocently replied that he has been tortured but clearly implicated the appellants by assigning roles to them in the commission of the offence. As regards to the evidence of the child witness, the trial Court had taken all possible and due steps to judge the level of his intelligence before proceeding to record his evidence. It may be observed here that mere fact that abductee/child was of tender age does not ipso facto make his evidence unreliable. It is true that while relying upon the evidence of child witness, close and careful scrutiny is required which in the instant case was duly adopted by the trial Court and a note to that effect was also recorded by the trial Court in the deposition about the satisfaction of the Court. Moreover, under Article 3 of the Qanun-e- Shahadat Order 1984, a child if gave statement which indicated that such witness understood the questions and gave answers intelligently and rationally, the same could not be ignored due to the tender age of the witness. Evidence of P.Ws Dr. Aamir and Imran Ahmed is also quite reliable for the reasons that they had no enmity or motive to falsely implicate the appellants in this case.
Appellants had also led the police party to their houses and produces SIMs, ransom amount and school bag. Recoveries have been proved by the prosecution by confidence inspiring evidence.
Call Data has also been produced by the I.O. Mst. Sadaf in her evidence has stated that callers/appellants were calling her for ransom on cell. Call data confirms the fact that from Cell Nos. 0322-3513432 and 0345-6156318 calls were made on Cell of Mst. Sadaf and both SIMs were produced by accused Shahzad Masih. Report of Ballistic Expert produced in evidence reflected that it was used in .30 bore pistol and at the time of arrest of accused Shahzad it was recovered from him and it was unlicensed. There is huge evidence on record to connect the appellants/accused in the commission of the offence. Defence plea raised by accused Nisar and Munir is after thought.
No proof whatsoever has been produced by accused Nisar that on the day of incident he was at Rawalpindi. Mere raising of defence plea without substance would not destroy such strong prosecution evidence. Prosecution witnesses, including abductee/child, have given details about the involvement of the accused in the process of kidnapping of child for ransom and prosecution evidence is truthful and confidence inspiring. Delay in lodging of FIR has been plausibly explained.
Complicity of accused for commission of offence of kidnaping for ransom and object was fully proved by prosecution evidence. No glaring defect, material irregularity or legal infirmity could be pointed out by defence in the finding of the trial Court as regards appreciation of evidence or quantum of sentence awarded to the accused. Insistence upon strict compliance with the terms of section 103, Cr.P.C. As regards to the recoveries under the circumstances of the case would be unjustified. The decree has failed to shake the credibility of prosecution witnesses.
Appellants/accused Nisar Ahmed examined in his defence DW Ghulam Mustafa and accused Munir examined DW Daniyal. Both Appellants/accused took specific plea the onus shifted upon them to prove the same by producing cogent evidence to the satisfaction of the court or at least their plea should have been supported by the attending circumstances but they have failed. On the other hand, there is strong prosecution evidence to connect the Appellants in the case. Rightly reliance has been placed on following judgments of the Honourable Supreme Court of Pakistan by learned Assistant Prosecutor General Sindh:
1. 2001 SCM R 1919 (The State v. Haider Zaidi and 2 others)
2. 1999 SCM R 2841 (Qasim and 3 others v. The State)
3. 1995 SCM R 1793 (Zakir Khan and others v. The State)
32. The Honourable Supreme Court of Pakistan in the case of Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others (2001 SCM R 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 hemselves. 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 replanted 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. "
33. In the present case so far as question of sentence is concerned, there are no mitigating or extenuating circumstances warranting lesser punishment. Appellants have committed offence in the brutal manner. They did not deserve any leniency in the sentence.
34. 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 sentences is answered in affirmative.