PLJ 2023 Cr.C. (Note) 102
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ.
MUHAMMAD ALI, etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 542 of 2019, decided on 4.10.2021.
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 7(1)(g) & 7(2)--Pakistan Penal Code, (XLV of 1860), Ss. 302, 364, 201--Criminal Procedure Code, (V of 1898), S. 544--Conviction and sentence--Challenge to--Benefit of doubt--Circumstantial evidence--It is an established fact that appellant was arrested soon after registration of FIR and has pointed out place of occurrence ana1 got recovered dead body of deceased as well, which is a relevant information in view of Article 40 of Qanoon-e-Shahadat Order, 1984--Wherein Hon’ble Supreme Court of Pakistan has held that leading of accused to recovery of incriminating articles was a good piece of evidence of corroboration which was admissible under Article 40 of Order ibid--In such state of affairs, that incident resulting into death of son of complainant had taken place on account of personal grudge between class-fellows and was not consequence of any sectarian hatred, therefore, Court feel that provisions of Anti-Terrorism Act, 1997 are not attracted in this case--Case of title prosecution hinged on» circumstantial evidence--In such cases the’Court while hearing an 4 appeal against conviction recorded on circumstantial evidence has to see whether any link of evidence is missing or not and if all chain of events is established, extension of benefit of doubt would be against all cannon of justice, because, plight of family, who lost their near and dear, could not be described in simple words--There is also no cavil to proposition that conviction on a capital charge can be maintained if same is so interlinked, inter woven and interlaced that on one side it touches dead body of deceased and on other end it touches neck of accused--Having reappraised prosecution evidence, Court found same worthy of credence to extent of appellant and as such view that same has rightly been believed by learned trial Court against him, therefore, his conviction on charges falling under Pakistan Penal Code, 1860, is neither uncalled for nor require any interference by High Court, However, in view of our observations in paragraph No. 16 above, we feel that chain of circumstances could not remain unbroken so as to connect appellant with commission of offence, benefit of which must go him as a matter -of right and not of grace--Appeal partly accepted.
[Para 14, 15, 17 & 18] A, B, C, D & E
1971 SCMR 412, PLJ 2006 SC 931 & 2019 SCMR 1027.
M/s. Basharat Ullah Khan and Raja Muhammad Ali, Advocates for Appellant.
Mr. Naveed Ahmad Warraich, D.D.P.P. for State.
Mr. Muhammad Ameen Jan, Advocate for Complainant.
Date of hearing 4.10.2021.
Judgment
Raja Shahid Mehmood Abbasi, J.--Impugned herein is the judgment dated 06.07.2019, handed down by learned Judge Anti-Terrorism Court-II (Juvenile Court), Rawalpindi Division, Rawalpindi, in case FIR No. 34 dated 22.01.2016, under Sections 302, 201,364, 34, PPC and Section 7 of Anti-Terrorism Act, 1997, Police Station Fateh Jang, District Attock, whereby the appellants were convicted and sentenced as under:--
Ø Under Section 302, PPC to imprisonment for life each.
Ø Under Section 7(1)(a) of Anti-Terrorism Act, 1997 to imprisonment for life each.
Ø Under Section 364, PPC to undergo 10-years RI each with fine of Rs. 20,000/- each or in default thereof to further undergo simple imprisonment for 2-months each.
Ø Under Section 201 PPC to undergo 7-years RI each with fine of Rs. 20,000/- each or in default thereof to further undergo simple imprisonment for 2-months each.
Ø Under Section 7(1)(g) of Anti-Terrorism Act, 1997 to undergo 4-years R.I. each with fine of Rs. 20,000/- each or in default thereof to further undergo simple imprisonment for 2-months each.
Ø Under Section 7(2) of Anti-Terrorism Act, 1997 the whole of their properties stood forfeited in favour of State.
Ø Under Section 544-A, Cr.P.C. they were directed to pay Rs. 100,000/- each as compensation to the legal heirs of Syed Muzammal Hussain Shah deceased, which shall be recovered as arrears of land revenue or in default thereof to undergo simple imprisonment for 6-months each.
Ø All the sentences were ordered to run concurrently, however, appellants was declined the benefit of Section 382-B, Cr.P.C.
2. Brief facts of the case described in FIR (Ex.PQ/1), lodged on the basis of written application (Ex.PQ) of Mastan Shah complainant (PW-14) is that he was resident of Bhaal Syedan and was having two sons, one of whom namely Muzammal Hussain Shah was student of 10th class in Government High School Fateh Jang, who, on 20.01.2016 7 at 07:30 a.m. left for Fateh Jang after taking his school bag, but did not return home and during his search, when the complainant reached Bhaal Syedan Stop, he was informed by Akmal Shah and Altaf Hussain Shah that on 20.01.2016 at about 08:30 a.m. they were standing at College Morr Stop and waiting for transport to go to their village, where they saw Muhammad Ali, Kashif and Ahmad Shoaib taking ‘Muzammal Hussain Shah towards Degree College Fateh Jang on foot. It was further maintained in FIR (Ex.PQ/1) that few days, ago, a quarrel had taken place between Muzammal Hussain Shah and Muhammad Ali, etc. who were his class fellows, but the matter was patched up; due to this grudge, Muhammad Ali etc. three in number, abducted his son with the intention to commit his murder, hence, the crime report.
3. After lodging FIR (Ex.PQ/1), Ahmad Nawaz S.I. (PW-15) carried investigation of the case. He arrested Ahmad Shoaib (convict), who made disclosure that he could lead to the recovery of dead body of Syed Muzammal Hussain Shah (hereinafter referred to as the deceased) and further pointed out the house of Kashif Mehmood (hereinafter referred to as the appellant), who was arrested from his house, where he made disclosure that he could also lead to recovery of dead body of deceased. On the basis of their respective disclosures, Kashif Mehmood appellant and Ahmad Shoaib convict led the investigating officer and the witnesses to the place of occurrence and thereafter to the place of burial of dead body of the deceased, from where the dead body was recovered, upon which offences under Sections 302, 201 and 34, PPC were added. Thereafter, investigation was entrusted to Anjum Sohail S.I. (PW-13) who got conducted post-mortem examination on the dead body of deceased, recovered pickaxe
on the pointing out of Ahmad Shoaib convict and after recording statements of Fayyaz Hussain Shah and Zamir Hussain Shah, added offence under Section 7 of Anti-Terrorism Act, 1997, where after file of the case was handed over to Akhtar Ali Inspector (PW-10) for further investigation. On 26.01.2016, he (PW-10) recovered knuckle duster on the pointing out of Kashif Mehmood appellant and on the same day, he arrested Muhammad Ali appellant, who, on 31.01.2016 got recovered blood stained chhuri. After taking other necessary steps and completing investigation, challan was submitted before the learned trial Court. It is pertinent to mention here that Kashif Mehmood and Muhammad Ali appellants, being juveniles, were tried separately under the Juvenile Justice System Ordinance, whereas a separately trial was conducted against accused Ahmad Shoaib, on conclusion of which he was handed down guilty verdict and his appeal against conviction and sentence has been dismissed by this Court with certain modifications in respect of his conviction and sentences.
4. On being indicted, the appellants pleaded not guilty and claimed trial. In order to prove its case against the appellants, the prosecution examined fifteen witnesses, detail of which finds an elaborate mention in the judgment passed by learned trial Court, therefore, the same may not be reproduced here in order to avoid duplication and unnecessary repetition. After tendering in evidence the reports (Ex.PU and Ex.PV) of the Punjab Forensic Science Agency, the prosecution closed its evidence.
5. In their statements under Section 342, Cr.P.C. the appellants professed innocence and pleaded their false implication in the case. However, they did not opt to record their statements under Section 340(2), Cr.P.C. or produce any witness in his defence. The contentions adopted by the appellants in reply to the question as to why this case against them and why the PWs had deposed against them, read as under:
“It was a blind murder for unknown reasons. I have neither any motive nor connected with the murder of the deceased. From evidence, it is apparent on record that entire circumstantial evidence is doubtful. The dead body was lying open and was found from a deserted place. Exh.DA alone is sufficient to discard the entire prosecution story. It is proved on record that investigation was dishonest and mala fide. I.O. tampered the record also. Due to some ulterior motives the sectarian elements of the complainant side has tried to give it a sectarian colour whereas according to I.O no sectarian element was found during the investigation. Father of Muhammad Ali is sarparasat-e-aala (سرپرست اعلی) of the Madrissa Anwar-e-Sehaba Ahle Sunnat and more than 100 students are getting education at the said Madrissa, without any complaint of any sort. We accused are class fellows having no quarrel with deceased. We have been falsely involved in the case on false suspicion. The complainant had the civil litigations with other people in the village.
6. On completion of trial, learned trial Court proceeded to convict and sentence the appellants as mentioned in Paragraph No. 1 above, hence the instant criminal appeal before us.
7. Learned counsel for the appellants submits that the appellants have been falsely involved in this case due to erratic guesswork and malicious intentions of complainant party; that the case against the appellants is nothing but a pack of lies, each word whereof converges on the innocence of appellants; that the prosecution did not produce any connecting evidence against the appellants during the course of the trial despite that they were pronounced guilty and handed down capital sentence of death; that there is no direct evidence against the appellants and the prosecution case is based on circumstantial evidence, which is not only the weakest of its types, but the chain of circumstances against the appellants is also broken; that the evidence of last seen and motive was fabricated only to create some circumstantial evidence against the appellants; that the medical evidence in this case has badly shattered the prosecution version regarding the missing of deceased on 20.01.2016; that neither dead body was recovered at the instance of appellants nor they got recovered anything else and all the recoveries shown to have been effected were planted which otherwise do not connect them with the commission of any offence; that the prosecution badly failed to bring home the guilt of the appellants beyond any reasonable shadow of doubt, hence, prays that the appeal may be accepted and the appellants being an innocent persons may be acquitted of the charge.
8. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant, while controverting submissions made by learned counsel for the appellant, contends that the appellants are duly named in FIR with specific allegation that they along with their co-convict had abducted the deceased with the intention to commit his murder and during investigation, they made disclosures in furtherance of which they led to the place of occurrence, whereas Khalid Mehmood appellant also got recovered the dead body of ill-fated young son of the complainant, on his pointing out; that the appellants have failed to advance any plausible reason as to why the prosecution witnesses had deposed against them because, there was no previous enmity, ill-will, grudge or malice of witnesses against them that though there is no direct evidence against the appellants, yet the prosecution case is proved through circumstantial evidence, which successfully connected the appellants with the commission; of alleged offence; that the recovery of knuckle duster and chhuri on the pointing out of appellants further strengthened the prosecution case against them; that the prosecution has established the guilt of appellants through tangible and cogent evidence beyond all shadows of doubt and the allied circumstances made it a case of proven credibility against them, therefore, the impugned judgment did not suffer from any frailty or legal defect; finally prays that the appeal may be dismissed.
9. We have given anxious consideration to the arguments advanced by learned counsel for the parties as well as learned Law Officer and have examined the record with their assistance.
10. Deep analysis of evidence on record reveals that the incident was reported by Mastan Shah complainant (PW-14), real father of deceased, with the allegation that on 20.01.2016 at 07:30 a.m. his son (deceased) left for the school situated at Fateh Jang after taking his school bag, but did not return home and during search, when he (PW-14) reached Bhaal Syedan Stop, Akmal Shah (given up) and Altaf Hussain Shah (PW-12) informed him that on 20.01.2016 at about 08:30 a.m they had seen the appellants and Ahmad Shoaib convict while taking his son (deceased) towards Degree College Fateh Jang. Subsequent to registration of FIR (Ex.PQ/1) dead body of deceased was recovered in furtherance of separate disclosures of Kashif Mehmood appellant and Ahmad Shoaib convict, who also separately disclosed and pointed out the place of occurrence, whereas Muhammad Ali appellant was apprehended afterwards. According to prosecution’s: version, there is no eye-witness of tragic incident as nobody except the appellants, Ahmad Shoaib convict and the deceased were present at the scene of tragedy. The prosecution has mainly relied on circumstantial evidence, as such, it is required to link each circumstance to the other in a manner which must form complete, continuous and uninterrupted chain of circumstances, firmly connecting the accused with the offence.
11. Before proceeding further with the scrutiny of prosecution evidence, we have noted certain distinctions in the case of prosecution against Kashif Mehmood and Muhammad Ali appellants, due to which we feel apposite to first take up the case of Kashif Mehmood appellant and the case against Muhammad Ali appellant would be discussed thereafter.
12. So far as the case against Kashif Mehmood appellant is concerned, the series of circumstances began from missing of deceased as well as his having been lastly seen with Kashif Mehmood appellant and his co-accused and in this regard, statement of Mastan Shah
(PW-14) being complainant and real father of deceased and that of the witness of last seen namely Altaf Hussain Shah (PW-12) are of great; significance. Mastan Shah complainant (PW-14), in his statement before the learned trial Court, reiterated whatever he had got incorporated in FIR (Ex.PQ/1). He re-affirmed that on 20.01.2016 at 07:30 a.m. his son left for school, but did not return home and during search, Altaf Hussain Shah (PW-12) and Akmal Shah (given up) informed him that on the same morning i.e. 20.01.2016 at about 08:30 a.m. they had seen Kashif Mehmood appellant and his co-accused while taking his son (deceased) towards Degree College Fateh Jang. While conducting cross-examination on the complainant (PW-14), the defence could not shatter his credibility and even during arguments learned counsel for the appellants has not brought his evidence under attack except raising a contention that the crime report was lodged by him with the delay of two days which is otherwise not fatal, in such like cases as being a father, the complainant (PW-14) was more interested and concerned in finding out his son than thinking of other options. Even otherwise, the defence could not controvert from record that soon after complainant (PW-14) was informed about the factum of last seen, he reported the matter to police without consuming any further time.
13. First chain of circumstances in the shape of missing of deceased is linked with the chain of last seen and as noted above, the evidence of last seen came out from the mouth of Altaf Hussain Shah (PW-12) whereas other witness of last seen namely Akmal Shah was given up being unnecessary. In his Court-statement, Altaf Hussain Shah (PW-12) categorically stated that on 20.01.2016, at about 08:30 a.m. he along with Akmal Shah (given up) was present at College Morr Stop for the purpose of going to their village, when in the meantime, they saw Kaahif Mehmood appellant and his co-accused while taking the deceased towards rear side of Degree College Fateh Jang and after coming to know about the abduction of deceased, they informed the whole account to his father Mastan Shah complainant (PW-14). He (PW-12) further stated that on 22.01.2016, he was telephonically asked by complainant from Police Station Fateh Jang to reach College Morr Bus Stop alongwith Akmal Shah (given up), upon which they both reached there and joined investigation. He (PW-12) stated that on the same day i.e. 22.01.2016, Ahmad Shoaib convict was arrested from outside his house, who, besides making some disclosures and leading to the place of occurrence as well as recoveries as discussed in his case through a separately dictated judgment of even date, also pointed out the house of Kashif Mehmood appellant, from where Kashif Mehmood appellant was arrested, who also made disclosure that he could lead to the place of occurrence as well as recovery of dead body and in furtherance of said disclosure made by Kashif Mehmood, he pointed out the place of occurrence and accordingly got recovered dead body of deceased, in school uniform along with school bag, after removing heap of soil. It is noteworthy that due to short distance between places of last seen, commission of crime and burial of dead body of deceased and further taking into consideration medical history of deceased, especially the time between factum of last seen, death and post-mortem examination, we are of the view that evidence of last seen certainly fits into the criteria of proximity of time and distance.
14. It is an established fact that Kashif Mehmood appellant was arrested soon after registration of FIR (Ex.PQ/1) and as noted above, ha pointed out the place of occurrence ana1 got recovered dead body of the deceased as well, which is a relevant information in view of Article 40 of Qanoon-e-Shahadat Order, 1984. In this context, reliance is placed on the case of “Hakim Ali v. The State” (1971 SCMR 412) wherein Hon’ble Supreme Court of Pakistan has held that leading of accused to recovery of incriminating articles was a good piece of evidence of corroboration which was admissible under Article 40 of the Order ibid. Further guidance has also been sought from the case of “Sher Zaman v. State and others” (PLJ 2006 SC 931), wherein the above view has been fortified by the apex Supreme Court.
15. Besides medical evidence in the shape of statement of Dr. Abid Ali Khan (PW-6) and post-mortem report (Ex.PD) is in complete harmony with the evidence of last seen and other circumstantial evidence produced by the prosecution and no conflict could be brought on record by the defence. Likewise, Kashif Mehmood appellant also got recovered a knuckle duster vide memo (Ex.PJ), which fact is duly proved through the statements of Phul Badshah (PW-9) and Akhtar Ali Inspector (PW-10). Though a specific motive was mentioned in FIR (Ex.PQ/1) that the deceased had been murdered on the backdrop of some previous quarrel between him and the accused being class fellows, but subsequently the prosecution made exaggeration through the statement of Fayyaz Hussain Shah (PW-11), who introduced another story and gave impression that the incident was outcome of sectarian conflict. According to Fayyaz Hussain Shah (PW-11), on 18.01.2016 the appellants and his co-accused uttered derogatory remarks regarding Shia sect of Muslims while pointing towards the deceased, but surprisingly Fayyaz Hussain Shah (PW-11) and his companion Zamir Hussain Shah (given up) did not take any step to admonish the accused then and there and they did not even make any complaint to the parents of accused or police. There is absolutely no justification that why Fayyaz Hussain Shah (PW-11) kept quiet and did not join investigation immediately after registration of FIR on 22.1.2016 and ultimately his statement was recorded on 23.01.2016. We are, therefore, of the view that there might be a quarrel between the accused and the deceased being class fellows but the reason advanced by Fayyaz Hussain Shah (PW-11) behind such quarrel that too at belated stage would not appeal to human prudence rather it seems that the subsequent purpose of quarrel was introduced only to give a heinous touch to the incident and bring the case within the parameters of Anti-Terrorism Act, 1997. In such state of affairs, we are inclined to hold that the incident resulting into death of son of complainant had taken place on account of personal grudge between class-fellows and was not the consequence of any sectarian hatred, therefore, we feel that the provisions of Anti-Terrorism Act, 1997 are not attracted in this case.
16. So far as the case against the other appellant namely Muhammad Ali is concerned, though the prosecution has relied on the same evidence as has been relied against Kashif Mehmood appellant in addition to the recovery of blood stained chhuri, but the disclosure made by him with regard to the pointing out of place of occurrence as well as that of burial of dead body of deceased does not come within the ambit of corroboratory evidence with the parameters of Article 40 of Qanoon-e-Shahadat Order, 1984, because, the same was already in the knowledge of prosecution witnesses and no new fact was discovered in consequence of said disclosure. Guidance has been sought from the case of “Fazal Subhan and another v. The State and others (2019 SCMR 1027).
17. As already noted above, case of the prosecution hinged on circumstantial evidence. In such cases the Court while hearing an appeal against conviction recorded on circumstantial evidence has to see whether any link of evidence is missing or not and if all the chain of events is established, the extension of benefit of doubt would be against all the cannon of justice, because, the plight of family, who lost their near and dear, could not be described in simple words. There is also no cavil to proposition that conviction on a capital charge can be maintained if the same is so interlinked, inter woven and interlaced that on one side it touches the dead body of deceased and on the other end it touches the neck of accused.
18. Having reappraised the prosecution evidence, we found the same worthy of credence to the extent of Kashif Mehmood appellant and as such we are of the considered view that the same has rightly been believed by learned trial Court against him, therefore, his conviction on the charges falling under Pakistan Penal Code, 1860, is neither uncalled for nor require any interference by this Court, However, in view of our observations in Paragraph No. 16 above, we feel that the chain of circumstances could not remain unbroken so as to connect Muhammad Ali appellant with the commission of offence, the benefit of which must go him as a matter of right and not of grace.
19. For the foregoing reasons, we partly accept Criminal Appeal No. 542 of 2019 to the extent of Muhammad Ali appellant and acquit him of all the charges of this case extending the benefit of aoubt in his favour, but partly dismiss the same to the extent of Kashif Mehmood appellant while maintaining his conviction and sentences under Sections 302(b), 364 and 201, PPC, awarded by learned trial Court, however, his conviction and sentences under Sections 7(1)(a), 7(1)(g) and 7(2) of Anti-Terrorism Act, 1997 are also set aside with the observation that his sentences of imprisonment shall run concurrently and the benefit of Section 382-B, Cr.P.C. shall also be extended in his favour.
(A.A.K.) Appeal partly accepted
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