P L D 2003 Supreme Court 704
(a) Penal Code (XLV of 1860) ---
----Ss. 302(a) & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)-- Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by the Supreme Court to consider as to whether Anti-Terrorism Court had the jurisdiction to try the case under the Anti-Terrorism Act, 1997; whether the circumstantial evidence, on which the conviction and sentence of the accused rested, connected the accused with commission of offence under S.302, P. P. C; whether principles of safe administration of justice had been followed in the case while appraising the prosecution evidence and whether the order with regard to payment of Diyat in addition to sentence of death under S.302(a), P.P.C. was sustainable.
(b) Criminal Procedure Code (V of 1898)---
----S. 540---Application for summoning witness under S.540, Cr.P.C.-- Validity---Court has power to examine to recall and re-examine any person if his evidence appears to it essential to the just decision of the case---Just decision of a case, however, will depend upon the circumstances 11of each case---Law does not require that whenever an application is made, the same shall, under, all circumstances be granted, nor perversity in the system of criminal administration of justice can be permitted to be introduced to defeat the known established process of justice---Object of S.540, Cr.P.C. is to defend the interest of justice and not to defeat the same---Such an application cannot be allowed when the sole object is to diminish the sanctity of Trial Court and to create anomalies for creating dents in the prosecution version-- Plea of calling for such witness, in the present case, was neither raised before the Trial Court nor the High Court and same was raised for the first time before the Supreme Court with the sole object to prolong the proceedings and to create doubts about the judgments delivered by Trial Court and affirmed by the High Court---Such application being totally misconceived was dismissed by the Supreme Court.
(c) Qanun-e-Shahadat (10 of 1984)---
----Arts.37, 38, 39 & 40---Penal Code (XLV of 1860), Ss.302(a) & 365-A- Determination of criteria as to which statement could be treated as confession---Admissibility or non-admissibility of confession---Principles.
In criminal cases great responsibility rests upon, the Courts to determine if the confession is voluntary and true or is lacking within the scope -of either term "voluntary" and "true'". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary. Voluntary and true are two different terms related with confession and each of them has its own significance. A confession, which is voluntary, is admissible in evidence even though it may be incorrect in its contents. As against above, a confession, which is not voluntary, is not admissible though it may be true, whether a confession is voluntary and true is a question of fact and is to be determined keeping in view the attending circumstances of each case. Voluntariness of confession and of being true are totally distinct. Voluntariness relates to its admissibility, while its truth is looked into for the purpose of assessing its value. Therefore, for proving confession it shall be both voluntary and true.
Article 38 lays down that a confession made to a police officer shall not be proved against a person accused of any offence. The rule embodied in above Article is for the reason that a police officer shall not be encouraged to extort confession for showing efficiency by securing convictions. Under this Article a confession made to a police officer is to be ignored even if it was made in the immediate presence of a Magistrate, as the Article 38 is independent and is not controlled by Article 39.
Article 39 deals with confessions, which are made not to a police officer but to persons other than police officers i.e. to fellow prisoner, a doctor or a visitor and makes such confessions inadmissible, if they were made while the accused was in the custody of police officer. The Articles 38 and 39 lay down different rules.
Further, it is noted that as per Article 40, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the accused under Article 40 relating to incriminatory articles is admissible.
(d) Penal Code (XLV of 1860)---
----S.302(a)---Circumstantial evidence---Sentence---Principles---Death sentence can be awarded on circumstantial evidence, provided all circumstances constituted a chain and no link is missing and their combined effect is that the guilt of the accused is established beyond any shadow of doubt.
(e) Penal Code (XLV of 1860)---
----S. 302(a)---Last seen evidence---Sentence---Principles---Last seen evidence though generally is regarded as a weak evidence, yet capital punishment can be awarded if an unbroken chain of circumstances from the stage of last seen evidence till death of the victim is established by conclusive evidence.
(f) Qanun-e-Shahadat (10 of 1984)-
-Art. 40---Penal Code (XLV of. 1860), S. 302(a)---Circumstantial evidence---House in question was in possession of the accused from where the dead body was recovered; unimpeachable evidence had established that recoveries of dead body, car and other articles were made on the lead, provided by the accused---All the pieces of circumstantial evidence when combined together provided a strong chain of circumstances lead, to the irresistible conclusion that it was the accused and the accused alone, who had killed the deceased and all such evidence under Art.40, Qanun-e-Shahadat, 1984 were admissible and were proved by conclusive evidence.
(g) Penal Code (XLV of 1860)---
----S. 302(a)---Evidence of last seen---Principles determining the guilt or otherwise of accused stated.
In such cases the circumstance of deceased having been last seen in company of accused is not by itself sufficient to sustain charge of murder, but further evidence is required to link him with the murder charge i.e. incriminating recoveries at accused's instance etc.
Last seen evidence for basing conviction thereon the circumstantial evidence must be incompatible with innocence of the accused and should be accepted with great caution and to be scrutinized minutely for reaching a conclusion that no plausible conclusion could be drawn therefrom excepting guilt of the accused.
Chain of facts be such that no reasonable inference could be drawn except that accused had committed offence after victim was last seen in his company.
Where the deceased was last seen in the company of the accused shortly before the time he was presumed to have met his death near the place of occurrence, inference could easily be drawn that the accused was responsible for the death of the deceased.
The evidence in the first instance be fully established and the circumstances so established should be consistent only with the hypothesis of the guilt of the accused, that is, the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved i.e. chain of evidence must be complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
In such cases each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence.
All the facts so established should be consistent only kith the hypothesis of the guilt of the accused.
According to the standard of proof required to convict a person or circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have no only to be fully established but also that all the circumstances so establishes should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
Rehmat alias Rehman alias Waryam alias Badshah v. The State PLD 1977 SC 515; Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCMR 1416; Jafar Ali v. The State 1998 SCMR 2669; Mst. Robina Bibi v. The State 2001 SCMR 1914; Charan Singh v. The State of Uttar Pradesh AIR 1967 SC 520; Pohalya Motya Valvi v. State of Maharashtra AIR 1979 SC 1949; Kishore Chand v. State of Himachal Pradesh AIR 1990 SC 2140 and Laxman Naik v. State of Orisa AIR 1995 SC 1387 quoted.
(h) Penal Code (XLV of 1860)---
----Ss. 302(a) & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss.2-.B, 6(b), 7 & 8---Condition precedent for applicability of Anti-Terrorism Act, 1997.
The offences committed in the present case fall in the list of scheduled offences under Anti Terrorism Act, 1997. Terrorism has the meaning assigned to it in section "6" and the relevant part is subsection (b) thereof.
Condition precedent for applicability of Anti Terrorism Act, 1997 is that the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6, 7 and 8 of the Act. If sense of fear, insecurity in the people at large or any section of the people or disturbance of harmony amongst different sections of the people is created, said provisions will be attracted. Even if by act of terrorism actual terror is not caused, yet, subsection (b) of section 6 of the Act will be applicable if it was likely to do any harm contemplated in, said subsection. It is the cumulative effect of all the attending circum4tances which provide tangible guidelines to determine the applicability or otherwise of subsection (b) of section 6. In the present case, about 300/400 people gathered at the house of the complainant and they would have destroyed the house of the accused, if the police would not have intervened. Lawyer community was also annoyed over the murder of a member of their community and had passed a resolution in this regard. Under the circumstances, the case was rightly assigned to Anti Terrorism Court for trial.
(i) Penal Code (XLV of 1860)---
----Ss. 365-A & 302(a)---Kidnapping or abduction for extorting money and murder---While committing the said crime various acts are done i.e. capturing the victims and then detaining them under captivity and normally thereafter demand is made for ransom---To constitute an offence under S.365-A, P.P.C., it is not necessary that the money must have passed on to the culprit, nor it is necessary that the victim must have been released-- Abduction/kidnapping may be by force or by deceitful means---Written statement which was voluntarily filed by the accused, in the present case, when he was in jail to explain his point of view saying that the death of the deceased was accidental was prima facie false, accused had put the dead body in the dickey of the car and continued making demands for ransom, it was, therefore, a preplanned murder and so was established beyond any shadow of doubt---Supreme Court maintained the convictions and sentences awarded by the Trial Court and affirmed by the High Court---Amount of Rs.2,00,000 awarded, as Diyat, was directed to be taken as compensation to the legal heirs of the deceased under S.544-A, Cr.P.C. and not as Diyat.
Section 365-A, P.P.C. deals with kidnapping or abduction for extorting property, valuable securities etc. While committing the crime various acts are done i.e. capturing the victim and then detaining him under captivity. Normally thereafter, demand is made for ransom. More often than not these acts are done by more than one person, but in the present case every thing was done by the accused himself. To constitute an offence under this section it is not necessary that the money must have passed on to the culprit, nor it is necessary that the victim must have been released. Abduction/kidnapping may be by force or by deceitful means.
In the, present case the plea taken in the written statement, which was voluntarily filed by the accused when he was in Central Jail to explain his point of view saying that the death of the deceased was accidental, was prima facie, false. In case of accidental death normal course would have been to inform to the father of the deceased or to have taken him to the hospital. instead of doing above, the accused put the dead body in the dickey of the car and continued making demands for ransom. It was a preplanned and brutal murder and so was established beyond any shadow of doubt.
In consequence, the convictions and sentences awarded by trial Court and affirmed by High Court were maintained by the Supreme Court. An amount of Rs.2,00,000 awarded, as Diyat, shall be taken as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and not, as Diyat.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant.
Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for the Complainant.
Muhammad Ilyas Khan, Advocate Supreme Court and Suleman Habibullah, Addl. A.-G. for the State.
Dates of hearing: 19th and 20th February. 2003.
Sh. MUHAMMAD AMJAD VS THE STATE
P L D 2003 Supreme Court 704
Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ
Sh. MUHAMMAD AMJAD---Appellant
versus
THE STATE---Respondent
Criminal Appeal No.352 of 2002, decided on 20/02/2003.
(On appeal from the judgment dated 16-4-2002 of High Court of Sindh, Karachi, passed in Special Anti-Terrorism Jail Appeal No.83 of 2001)
JUDGMENT
NAZIM HUSSAIN SIDDIQUI J.---This appeal by leave of this Court is directed against the judgment dated 16-4-2002 of a learned Division Bench, High Court of Sindh, Karachi, whereby Appeal No.83 of 2001, preferred by appellant, Sh. Muhammad Amjad, against the judgment dated 3-10-2001 of learned Judge Anti Terrorism Court No.III, Karachi, convicting him under sections 302(a) & 365-A, P.P.C. read with section 7(e) of Anti Terrorism Act, 1997, hereinafter referred to as "ATA" and sentencing him to death on both counts and further directing him to pay an amount of Rs.2,00,000 as ' Diyat' and on recovery the same to be paid to the legal heirs of Shakir Lateef deceased under section 544-A, Cr.P.C. and further ordering to confiscate his properties both movable and immovable in favour of Government, was dismissed. Reference made by trial Court for confirmation of death sentence was accepted.
2. The appellant and Shakir Lateef deceased had a meeting on 29-7-2001 at Marriott Hotel, Karachi. F.I.R. No.8 of 2001 was lodged by razal-ur-Rehman complainant, the father of the deceased, on 4-8-2001 at 3/20 p.m. at Police Station Civil Lines, Karachi. It was recorded by Nigar Ahmed A.S.-I. under section 365-A, P.P.C. read with section 7-13 of ATA. The appellant was arrested on 4-8-2001 by Javed Iqbal Inspector.
3. According to F.I.R., the case of the prosecution in brief is that on 29-7-2001, the complainant reachedfrom Islamabad by Aeroplane. When he came out from Airport at 9-15 p.m. he received a call on his mobile phone which was made from mobile phone of his deceased son having No. 0303-7333660. The caller told him that his son (deceased) was abducted and threatened him that m case it was disclosed to police or to any other agency his son would be killed and his dead body would be thrown away. The caller further told him that he (caller) would continuously remain in contact with him. Immediately, he reached his house and came to know that the deceased, who was an advocate/barrister, had gone to meet his client at Marriott Hotel, Karachi and had not returned back till then. F.FR. also disclosed that due to fear the complainant neither contacted the police nor to any agency, least his son be caused any harm. Again on 30-7-2001 the same caller had contacted him on phone at 8-30 a.m. and threatened him saying that immediately he must arrange for the amount and he would contact him again. At about 7-45 p.m. the same caller again told him that he (complainant) should arrange for Rs.2 Crore, as ransom. Further, it is alleged that thereafter, said caller continued contacting him from the mobile phone of the deceased and also from other different phones demanding the aforesaid amount. The caller on 4-8-2001 at 12-10 p.m. again phoned him and threatened him that in case an amount of Rs.25 Lac was not paid by evening the abductee would be killed.
4. The charge-sheet was submitted against the appellant before the competent Court having jurisdiction in the matter.
5. On 5-9-2001 necessary charge under sections 365-A, 302, R.P.C. and 7(E) of ATA was framed against the appellant to which he pleaded not guilty and claimed to be tried.
6. At trial, the prosecution examined, as many as 22 witnesses, namely Fazal-ur-Rehman, P.W.1, Ahmed Chinoy P.W.2, Sahib Khan P.W.3', Major (R) Zafar Khursheed Ahsen P.W.4, Muhammad Arshad P.W.5, Aftab Alain P.W.6, Haji Latif Hussain Mangi P.W.7, Ejaz Latif P.W.8, Nasir Latif P.W.9, Nadeem Azhar Siddiqui P.W.10, Muhammad Younas P.W.11, Ejaz Ahmad P.W.12, Muhammad Amin P.W.13, Nigar Ahmed P.W.14, Rehmatullah Mooro Judicial Magistrate P.W.15, Dr. Ghulam Hussain MLQ P.W.16, Akhtar Ybunus P.W.17 Sajjad Ali ASIP P.W.18, Irfan Ahmed P.W.19, Sikandar Ali P.W.20, Dr. Muhammad Amin Yousafzai S.P. City P.W.21 and Javed Iqbal Inspector/I.O. P.W.22.
7. Mst. Razia Nawazish Ali Khan, P.W. was not served, as such, statement of process server Javed Iqbal was recorded, who also submitted his report. It appears from the impugned judgment that an application under section 164, Cr.P.C. was tiled to play audio and video cassettes in open Court and by consent of the parties, said application was allowed and thereafter, video film of Marriott Hotel, video film of confessional statement and audio cassettes were displayed in open Court in presence of the counsel of the parties and the appellant.
8. The appellant in his statement recorded under section 342 Cr.P.C. (Exh.72), inter-alia, admitted as follows:--
"(1) That he was arrested on 4-8-2001 at 11-00 a.m. because of suspicion from Gizri while he was passing from there and the police brought him at police station and enquired from him about the Shakir Lateef and he gave address of Bungalow No.51/1, 10th Street, behind Delton Market, D.H.A, Karachi and also brought the police party there, who rang the call bell of the said bungalow but there was no response as such the police party scaled the wall of the said bungalow and entered in the bungalow and few minutes later police informed him that the corpse of the deceased duly wrapped in a plastic bag was secured from that bungalow.
(2)He further admitted that he had obtained Bungalow No.51/1 10th Street, D.H.A, Karachi from landlady Mst. Razia Nawazish Ali and during the course of his visit to the aforesaid bungalow he had twice conversation with Mahboob Younas P.W, the chowkidar of the opposite bungalow to the aforesaid rented bungalow.
(3)That he is dealing in property business and had owed responsibility to Razia Nawazish Ali P.W. to rent out her bungalow and that he had friendship with Estate Agents namely Atiq Naveed Merchant and Mable Homes through whom he has dealing in the business of Estate Agency and he himself is not running independent or specific shop or office to deal with the property business (but he did not produce any of these persons as witness in his defence).
(4)The statement of Muhammad Arshad and Mst. Razia Nawazish Ali Khan P.Ws. were recorded in his presence before the Judicial Magistrate under section 164 Cr.P.C.
(5)That on 13-8-2001 he was produced before the Judicial Magistrate for recording his confessional statement where he stated that he was responsible for murder of Shakir Lateef deceased and will give the details of the incident before the trial Court.
(6)That the video cassette of Marriott Hotel was displayed in open Court in his presence and in presence of parties' counsel, wherein it was crystal clear that he and the deceased were in a meeting at Marriott Hotel on 29-7-2001 at about 4.00 p.m
(7)He admitted that his confessional statement vide video cassettes article P/17 was recorded in presence of S.P. City but alleged that it was recorded under duress.
(8)That Mst. Razia Nawazish Ali had informed him on the day when her statement was recorded before the Judicial Magistrate that she was going to London for her treatment and could not be available in Pakistan, as such, he could not produce her in his defence.
(9)That he had filed his Written Statement Exh.73 on 24-8-2001 before trial Court but alleged that it was because of torture of the police.
(10) That Ahmed Chino P.W.Akhtar Younus P.W, Mahboob Younas P. W and Muhammad Arshad P. W particularly and the remaining witnesses generally had no personal grudge, enmity or mala-fide with him to implicate him falsely in the present case."
9. The appellant appeared as his own witness on oath. In his cross -examination, he had produced monthly English Digest "NEWSLINE", wherein at page 57 his interview was published. In his statement on oath, the deposed that said Bungalow No.51/1, was rented out by him to the deceased on monthly rent of Rs.25,000 and the deceased had paid Rs.1,50,000 as advance for six months, which he had paid to landlady Mst. Razia Nawazish Ali Khan. He deposed that though he had received aforesaid amount from the deceased, but did not issue any receipt for it to the deceased. He also deposed that he had not obtained receipt of said amount from landlady. He admitted that he had called the deceased on 29-7-2001 at Marriott Hotel at about 4.00 p.m. and for about 45 minutes he and deceased had discussed the matter.. According to him he was arrested by the police at about 1.00 p.m. on 4-8-2001, when he was passing near Gizri and the police secured his purse and mobile telephone. He stated that he had pointed out the Bungalow, which he had rented out to the deceased. According to him, he was tortured severely after his arrest, as such, he agreed for recording the confessional statement in video cassettes and recording of his confessional statement before the Judicial Magistrate and that he had stated before Judicial Magistrate that he was responsible for the death of the deceased. According to him, this was done by him to avoid further torture at the hands of the police. He maintained that neither he had abducted the deceased nor killed him nor ransom was demanded by him for his release. He admitted, that he had not submitted any application before trial Court or High Court that he was subjected to severe torture in jail. He further admitted that he had not obtained the receipt of Rs.1,50,000 from Mst. Razia Nawazish Ali Khan and that the statement of Mst. Razia Nawazish Ali Khan under section 164 Cr.P.C. was recorded in his presence and he was offered an opportunity to cross examine her and that he had not confronted her that he had given aforesaid amount to her after receiving it from the deceased. He frankly conceded in cross-examination that neither Ahmed Chinoy nor Babar Younas P.Ws. were known to him prior to the arrest nor they had any enmity with him. He denied the suggestions that he was convicted for a term of three years in Dubai and that in a forgery case he was awarded imprisonment in America and that he was proclaimed offender in a case of kidnapping of Rup Chand Jeweller pending against him in India.
10. The appellant on 24-8-2001 in his own handwriting had filed his written statement when he was in central prison. It reads as under:--
"To
The Hon Judge
ATC Court No.3
Karachi 24th Aug, 2001.
LEGAL BINDING
My Lord.
Every time I visit, you, I am forced by the police to say in front of you Sir that I want to confess. I have no word to explain how I was tortured by the police, even now I am being tortured in the Jail (1) Bund ward from day 1 (2) Beating & Labour i.e. mapping of the floors (3) demanding money for relaxation in work. I wish to add.
Afzal Shikri Exh.I.G. Sindh Police & EXh.IG Superintendent Jail is a close associate of Shakir Lateef. May be his influence is behind to the above.
FACTS
SHAKIR LATEEF:--
My next-door neighbour for well over 10 years. Knew me well, his father mentioned me that he has completed his BAR exams. As I needed some legal opinion, so I phoned him from my house on Sat. When he is free, his answer was on Sunday. So on Sunday I phoned him from Karachi Gymkhana and fixed an appointment over a cup of tea in Marriott Hotel on the same day. He arrived Marriott at 4.00 p.m, we both sat there for 1/2 an hour, during which I discussed my problems including one of China Town Restaurant. On his request I went to see China Town Restaurant and wanted to see some papers. We both moved to China Town. After arriving China Town Restaurant we saw the road closed, so I left my car there and sat in Shakir's Car and moved to my rented house to show him a legal notice. We entered the house with car parked out side. Is this a KIDNAPPING?
At the house I offered him an orange juice and took a juice for myself. Unluckily, the glass he picked was an un-cleaned glass in which the same day I had performed an experiment for making liquid Gold. Potassium Cyanide is one of Chemical used, after needs most probably the glass was not properly washed, which must have left Cyanide in the bottom and this mixed it with juice and drinking it must be the cause of poor Shakir Lateef's death. He died in about 1/2 an hour without any pain just in sleeping state with one vomit. So Sir I take 100% responsibility of this accidental death.
I became very panicky and thus decided to put the body in Shakir's Car trunk and parked the car in the house and left for Gymkhana to,tear off the telephone SLIP because either the family knew Shakir was with me or this SLIP will prove it. So I 'took all the copies of the SLIP without anyone's knowledge. '
The next 4/5 days I did a drama of RANSOM to divert attention from my side when I had nothing to deliver against RANSOM, as I had a soft corner for Shakir's father, so instead of taking ransom I delivered some files to Mr. Fazal Lateef otherwise he will land up in trouble and agreed to him for not using Shakir's Mobile phone. Thus I got arrested while I was taking to Mr. Fazal from a card phone. I produced the car and confessed the above story. But I was tortured to change my story which I did so in front of Magistrate 164. But I did mention about police torture.
Sir I am ready to accept any sentence but do you think it should be tried in ATC Court when no kidnapping and arms is involved.
Sheikh Quddus murder is 100% false and is planted upon me with torture. Rest I leave to Almighty God. I do request for a fair trial and a full enquiry in the jail for torturing me in different forms.
(Sd.)
Sh. Mahmood Amjad s/o Sh. M. Amin.
11. Vide order dated 30-9-2002, leave to appeal was granted to consider the following:--
(i) Whether Anti Terrorism Court No.3 at Karachi had jurisdiction to try the petitioner under the provisions of Anti Terrorism Act, 1997?
(ii) Whether the circumstantial evidence, on which the conviction and sentence of the petitioner rest, connects the petitioner with commission of the offence under section 302 P.P.C?
(iii) Whether the principles of safe administration of justice in criminal cases laid down by this Court have been followed in this case while appraising the prosecution evidence?
(iv) Whether the order with regard to payment of Diyat in addition to sentence of death under section 302(a) P.P.C is sustainable?
12. At the outset, learned counsel for the appellant prayed that C.M.A. No.388 of 2002 under section 540, Cr.P.C. tiled before this Court during the pendency of this appeal be decided first and that Mr.Anwar Kazmi, representative of Edhi Welfare Trust be summoned alongwith relevant record and his evidence be recorded. In support of his contention he cited Barkat Ali alias Gharibu and others v. The Crown (1969 SCMR 448), Painda Gul and another v. The State and another (1987 SCMR 886), Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811), Shahid Orakzai v. Pakistan Muslim League Nawaz Group etc. (2000 SCMR 1969), Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others (2001 SCMR 279), Imran Ashraf and 7 others v. the State (2001 SCMR 424), Dildar v. The State etc (PLD 2001 SC 384) and Mst. Baswar Sultan v. Mst. Adeeba Alvi (2002 SCMR 326).
13. According to learned counsel, the dead body of the deceased Was recovered from the house in question and it was taken to Jinnah Hospital for post mortem at 2-00 p.m. on 4-8-2001 in an Edhi Ambulance, whereas the case of the prosecution showed that the appellant was arrested on 4-8-2001 at about 4.42 p.m., while he was making a telephone call to the complainant from a telephone call booth, Saddar, Karachi and thereafter, the dead body was recovered by the police allegedly on pointation of the appellant ff4m said house He contends if the dead body was already recovered by the police at 2.00 p.m. on said date the whole prosecution story stands falsified on this ground alone and the appellant is entitled to clear acquittal. Learned counsel for appellant has placed on record a letter of Edhi Welfare Trust dated 9-10-2002 and a copy of register showing that on the basis of information conveyed by Police Station Darkhshan Edhi Ambulance was sent for carrying the dead body of the deceased to the hospital at 2.00 p.m.
14. As against above, Mr. Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for the complainant submitted that there is no need whatsoever for recording additional evidence at this stage, as neither there is any ambiguity nor any justification for doing so. In support of this contention, he cited Riaz Hussain and others of the State (1986 SCMR 1934). In the said reported case the plea for additional evidence was turned down on two grounds, firstly that no such effort was made before trial Court, secondly said plea was not raised even at the appellate stage.
15. A perusal of section 540 Cr.P.C, shows that Court has power to examine, to recall and re-examine any person if his evidence appears to it essential to the just decision of the case. It is noted that just decision of the case will depend upon the circumstances of each case". It is not the requirement of law that whenever such application is made, it shall, under all granted, perversity in the system of criminal administration of justice can be permitted to be introduced to defeat the known established process of justice. The object of section 540 Cr.P.C. is to defend the interest of justice and not to defeat it. Such application cannot be allowed when the sole object is to diminish the sanctity of trial Court and to create anomalies for creating dents in the prosecution version.
16. In the instant case, the case was registered at Police Station Civil Line and not at Police Station, Darakhshan. Neither before trial Court nor High Court this plea was raised. First time, it has been raised before this Court with sole object to prolong the proceedings and to create doubts about the judgments delivered by trial Court and affirmed by High Court. The application is totally misconceived and is dismissed.
17. It is contended on behalf of the appellant that the evidence brought on record does not establish his guilt, nor such conclusion can be drawn even if the prosecution's evidence is stretched to its maximum limit, that the appellant was convicted by trial Court on the basis of conjunctures and surmises and unfortunately the conviction was affirmed by High Court without legally examining its propriety and correctness. Learned counsel also contended that though it is alleged that the appellant was arrested from a busy area of Karachi and the dead body was also recovered from a busy residential area, yet no body from said areas was examined to prove said assertions also argued that no independent witness was produced regarding recovery of dead body from dickey, where the dead body was alleged to have beer, placed by the appellant. It is urged that since independent evidence is lacking in this case no reliance could be placed on the statements of the interested and chance witnesses produced by the prosecution. It is also urged that the dead body was recovered from the house of Razia Nawazish Ali and her statement without any justification was not recorded in Court. Further, submitted that her statement under section 164 Cr.P.C., is not admissible in evidence, as no effort was made to produce her as a prosecution's witness. Learned counsel also argued that appellant could not bring the deceased to the Marriott Hotel, Karachi on gunpoint and if the appellant and deceased had come to the hotel separately then it was natural that they must have left the hotel in the same way. Criticizing the testimony of Iltaf Hussain P.W., learned counsel submitted that he was a family friend of the deceased and his testimony could not be believed without corroboration, which according to him was missing. Learned counsel also submitted that mobile phone of the complainant was not kept under observation and all alleged calls from the abductor were received on the complainant's mobile phone and it being so it could not be held that demands for ransom were made by the appellant to the complainant. Also, it is urged that much reliance has been placed on the testimony of Ahmed Chinoy and he being a Member of C.P.L.C. (Citizen Police Liaison Committee) had no lawful authority to investigate the matter. Also argued that the prosecution has totally failed to prove that the appellant was in possession of the Bungalow, which belonged to Razia Nawazish. Further contended that the appellant had no enmity with the deceased hence he had no motive to kill him. It is also urged that death of the deceased took place on 29-7-2001 and it being so there was no question to demand ransom from the complainant. It is also contended that there is no ocular evidence and the circumstantial evidence brought on record is wholly incompatible with innocence of the appellant. Learned counsel also argued that element of terrorism was not at all established, as such, the appellant could not be tried under ATA. Also, it is pleaded that on the basis of retracted confession the appellant could not be convicted.
18. The alleged confession of the appellant recorded in the office of Superintendent of Police through video film (Article P/17), was not relied upon by High Court and about it both trial Court and High Court ruled that it was inadmissible.
19. Articles 37,38 and 39 of Qanun-e-Shahadat Order, 1984 corresponding to sections 24, 25 and 26 of the Evidence Act are relevant to determine the criteria as to which statement could be treated as confession. In Criminal cases great responsibility rests upon the Courts to determine if the confession is voluntary and true or is lacking within the scope of either term "Voluntary" and "True". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary. Voluntary and true are two different terms related with confession and each of them has its own significance. A confession, which is voluntary, is admissible in evidence even though it may be incorrect in its contents. As against above, a confession, which is not voluntary, is not admissible though it may be true, whether a confession is voluntary and true is a question of fact and is to be determined keeping in view the attending circumstances of each case. Voluntariness of confession and of being true are totally distinct. Voluntariness relates to its admissibility, while its truth is looked into for the purpose of assessing its value. Therefore, for proving confession it shall be both voluntary and true.
20. Article 38 ibid lays down that a confession made to a police officer shall not be proved against a person accused of any offence. The rule embodied in above Article is for the reason that a police officer shall not be encouraged to extort confession for showing efficiency by securing convictions. Under this Article a confession made to a police officer is to be ignored even if it was made in the immediate presence of a Magistrate, as the Article 38 is independent and is not controlled by Article 39.
21. Article 39 deals with confessions, which are made not to a police officer but to persons other than police officers i.e. to fellow prisoner, a doctor or a visitor and makes such confessions inadmissible, if they were made while the accused was in the custody of police officer. The Articles 38 and 39 lay down different rules.
22. Further, it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence or information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible.
23. The case of the prosecution rests upon the circumstantial evidence recoveries of incriminating articles, admissions and the appellant's written statement in his own handwriting. Now it is a settled proposition of law that death sentence can be awarded on circumstantial evidence, provided all circumstances constituted a chain and its no link is missing and their combined effect is that the guilt of the accused is established beyond any shadow of doubt.
24. In the instant case, the prosecution has heavily relied upon last seen evidence, which though generally is regarded as a weak evidence, yet, capital punishment can be awarded if an unbroken chain of circumstances from the stage of last seen evidence till death of the victim is established by conclusive evidence.
25. The deceased was last seen with the appellant on 29-7-2001 and this was established by the testimony of Sain Khan P. W., who was a waiter in Marriott Hotel.
26. Ahmed Chinoy P.W. is an important witness of this case. He is a businessman and at the relevant time was Deputy Chief of District Central C.P.L.C. He was working on honorary and voluntarily basis. He deposed that on 30-7-2001, they had received telephonic information from the complainant that his son Shakir Lateef was missing from 29-7-2001. He was further informed that he (complainant) received telephonic call on his mobile phone, which was made from the mobile phone of his son (deceased). He stated that the complainant sought the help of C.P.L.C. According to the witness, the C.P.L.C. was dealing in such cases for the last 10 to 12 years and on receiving information from the complainant the phone of the complainant was kept under observation and they started monitoring the calls, which were being received on the phone of the complainant at his Bungalow or on his mobile telephone. According to the witness, the C.P.L.C. monitored all the calls on the grounds line telephone and mobile telephone of the complainant from 30-7-2001 to 4-8-2001. He stated that Akhtar Younis P.W.17 was deputed at the Bungalow of the complainant to monitor and record the incoming calls. The witness further stated that on 4-8-2001, they advised the complainant to lodge F.I.R and had chalked out a plan for arrest of the culprit on the basis of data, which was collected from the incoming calls. Since the indulgence of the police party was necessary. SSP (South) was consulted and various parties were constituted for this purpose. Akhtar Younas P.W., who was deputed at the Bungalow, informed him on wireless that one person was at tele-card booth near Jabees Hotel, Saddar Karachi was talking on telephone with the complainant. Within two minutes, the police party reached there and the appellant was arrested. He also stated that at the time of arrest of the appellant from his personal search some visiting cards, including visiting card of deceased, were secured. According to him, he had signed the visiting card of the deceased secured from the possession of the appellant on its backside. Which he had produced in the Court. He also stated that police secured mobile telephone as well as voice changer from the possession of the appellant at the time of his arrest. The witness acted as mashir of recovery and co-mashir was Babar Younis P.W. According to him, the appellant had confessed before him and others that after abduction of the deceased, he (appellant) administered Potassium Cyanide to him in a glass of juice, which resulted in his death on the day of abduction. He also deposed that the appellant confessed that he had put the dead body of the deceased in the car of the deceased which was available in Bungalow in question. Thereafter, the appellant led the mashirs and police party to the house in question, where the dead body and other incriminating articles were secured.
27. It is pertinent to point out here that the appellant had already admitted in his statement recorded under section 342 Cr.P.C., that he had called the deceased at Marriott Hotel. The appellant had to admit this tact in view of the video cassette produced by Major (R) Zafar Khursheed Ahsan, Manager Safety and Security, in said hotel. The video cassette was recorded by close TV circuit system in said hotel. The cassette showed that the appellant and deceased were talking together and this evidence left no option to the appellant but -to admit that the deceased was with him on the aforesaid date, time and place.
28. Next is the testimony of Haji Iltaf Hussain Mangi, who is a landlord and businessman and is/was well known to the complainant and his deceased son. On said date i.e. 29-7-2001 at about 5 or 5/15 p.m., while he was passing from 10th Street, Khayaban-e-Shamsheer, near Bungalow No.51/1, he had seen deceased alongwith another person. The deceased and the witness had conversation and the former informed the latter that he was there for providing some legal assistance to the person, who was sitting with him. The witness confirmed that the other person was the appellant. The witness further stated that he was informed on telephone by a friend that the deceased was abducted on 29-7-2001 and his dead body was secured on 4-8-2001. He then went to the house of the complainant and saw 300/400 people were present and there he came to know that the deceased was abducted for ransom and was killed by the abductor by administering him poison. He was further informed that the abductor was no other person other than his neighbour. He also stated that the persons collected at the Bungalow of the complainant were hostile and were bent upon to set ablaze the house of the appellant, but the police reached there and saved the property of the appellant.
29. Ijaz Lateef, P.W. who is the uncle of the deceased, stated that the deceased was missing since 29-7-2001 and on 4-8-2001 at about 5.00 p.m. when he was present at the house of the complainant, a telephonic message was received disclosing that the deceased was killed. The complainant .had asked him to go to Bungalow No. 51/1, for confirmation. He reached there at about 5/15 p.m. The police and C.P.L.A. officials brought the appellant there, who took out the keys of the Bungalow from a hole, which was mean for electric bulb affixed on the outer door of the bungalow and opened its outer door. All went inside Bungalow and thereafter, the appellant took out the key of the car from a hole in the wall, which was meant for AC and opened door of the car and its dickey in which the dead body of deceased was found wrapped in a plastic cover. The police in his presence secured the car its key and the dead body in presence of mashirs. The car belonged to the deceased. He further stated that at that time the appellant had confessed that he had killed the deceased by administering him poison.
30. P.W., who is a cousin of the deceased, stated that the Marriott Hotel on 29-7-2001 at about 3-20 or 4-00 abducted for ransom.
31. Mahboob Younis, who was chowkidar at bungalow No.50/1 10th Street, which was just in front of the bungalow in question stated that bungalow in question was obtained by the appellant on rent. He maintained that he had seen the appellant coming and going in the bungalow in question. He also deposed that the appellant had talked him about water Supply and Electricity.
32. Dr. Sikandar Ali P.W., who had conducted the autopsy of the dead body of the deceased, inter alia stated that time between death and post mortem was 5 to 7 days, which synchronized with the prosecution version. According to him, the cause of death was cardio respiratory failure due to Cyanide poisoning.
33. All above pieces of circumstantial evidence when combined together provided a strong chain of circumstances leading to the irresistible conclusion that it was the appellant and the appellant alone; who had killed the deceased. It was also established that the bungalow in question was in possession of the appellant from where the dead body was recovered. It was also established by an unimpeachable evidence that recoveries of dead body, car and other articles were made on the lead, provided by the appellant. All above pieces of evidence under Article 40 ibid are admissible and were proved by conclusive evidence.
34. This Court and Supreme Court of India while examining the evidence of last seen, have laid down certain dictums for determining the guilt or otherwise of the culprit/accused.
In the case reported as Rehmat alias Rehman alias Waryam alias Badshah v. The State PLD 1977 SC 515, it was held that in such cases the circumstance of deceased having been last seen in company of accused is not by itself sufficient to sustain charge of murder, but further evidence is required to link him with the murder charge i.e. incriminating recoveries at accused's instance etc.
In the case reported as Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCMR 1416 it was held that last seen evidence for basing conviction thereon the circumstantial evidence must be incompatible with h innocence of the accused and should be accepted with great caution and to be scrutinized minutely for reaching a conclusion that no plausible conclusion could be drawn therefrom excepting guilt of the accused.
In the case reported as Jafar Ali v. The State 1999 SCMR 2669 it was held that chain of facts be such that no reasonable inference could be drawn except that accused had committed offence after victim was last seen I in his company.
In the case reported as Mst. Robina Bibi v. The State 2001 SCMR 1914 it was held that where the deceased was last seen in the company of the accused, shortly before the time he was presumed to have met his death near the place of occurrence, inference could easily be drawn that the accused responsible for the death of the deceased.
In the reported case Charan Singh v. The State of Uttar Pradesh AIR 1967 SC 520 the view taken by the Court was that the evidence in the first instance be fully established and the circumstances so established should be consistent only with the hypothesis of the guilt of the accused, that is, the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved i.e. chain of evidence must be complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
In the case reported as Pohalya Motya Valvi v. State of Maharashtra AIR 1979 SC 1949, it was held that in such cases each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence.
In the case reported as Kishore Chand v. State of Himachal Pradesh AIR 1990 SC 2140, it was held that all the facts so established should be IN consistent only with the hypothesis of the guilt of the accused.
In the case reported as Laxman Naik v. State of Orisa AIR 1995 SC 1387; above principles have been reiterated in the following manner:--
"According to the standard of proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of, the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should I be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. "
36. Next point is to be considered is the issue of jurisdiction under ATA. Its schedule has been drawn under section 2-B. It is not disputed that the offences committed in this case fall in the list of scheduled offences under this Act. Terrorism has the meaning assigned to it in section "6" and the relevant part is subsection (b) which is as under--
"the use of threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society;"
37. Condition precedent for applicability of ATA is that the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6, 7 and 8 of the ATA. If sense of fear, insecurity in the people at large or any section of the people or disturbance of harmony amongst different sections of the people is created, above quoted subsection will be attracted. Even if by act of terrorism actual terror is not caused; yet, above quoted subsection (b) will be applicable if it was likely to do any harm contemplated in said subsection. It is the cumulative effect of all the f attending circumstances which provide tangible guidelines to determine the applicability or otherwise of said subsection. It is noted that about 300/400 people gathered at the house of the complainant and they would have destroyed the house of the appellant, if the police would not have intervened. Lawyer community was also annoyed over the murder of a member of their community and had passed a resolution in this regard. Under the circumstances, the case was rightly assigned to Anti Terrorism Court fort trial.
38. Section 365-A, P.P.C. deals with kidnapping or abduction fore extorting property, valuable securities etc. While committing above crime various acts are done i.e. capturing the victim and then detaining him under captivity. Normally thereafter, demand is made for ransom. More often than not these acts are done by more than one person, but in this case every thing was done by the appellant himself. To constitute an offence under this section it is not necessary that the money must have passed on to the culprit, nor it is necessary that the victim must have been released. Abduction/kidnapping may be by force or by deceitful means.
39. The plea taken in said written statement, which was voluntarily tiled by the appellant when he was in Central Jail to explain his point of view saying that the death of the deceased was accidental, is, prima facie, false. In case of accidental death normal course would have been to inform to the E father of the deceased or to have taken him to the hospital. Instead of doing above, the appellant put the dead body in the dickey of the car and continued making demands for ransom. It was a preplanned and brutal murder and so is established beyond any shadow of doubt.
40. In consequence, the convictions and sentences awarded by trial Court and affirmed by High Court are maintained. An amount of Rs.2,00,000 awarded, as Diyat, shall be taken as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and not, as Diyat. In above terms, the appeal is dismissed.
M.B.A./M-834/SAppeal dismissed.
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