2021 PLP 57 (YLRN)

MALIK HAQ NAWAZ, C.J.

This appeal has been filed against a judgment passed by learned Judge Anti-Terrorism Court No.1 Gilgit-Baltistan, Gilgit. The appellants/convicts were booked for the offences under sections 302, 367-A, 337, 201, 404, 34, P.P.C. read with sections 6/7 ATA 1997 vide FIR No.03/2019 dated 08/02/2019 registered at Police Station Immit District Ghizer.

2. The gist of FIR and complete challan are that on 08/02/2019 the complainant namely Ajaib Khan son of Ali Khan, who is Father of deceased Dedar Hussain, presented an application/ report before SHO the Police Station Immit District Ghizer regarding missing of his son Dedar Hussain aged about 15/16 years old and a student of 9th class who had left the home on 04-2-2019 at 5:00 pm saying that he would get an easy load on his mobile but he did not return back to home and searched to locate him also failed. On 06-02-2019 dead body of the deceased Deedar Hussain was found from river of "Tashnalot" Immit and taken into possession by the police. In the light of post mortem report, the SHO of Police Station Immit registered FIR No. 03/2019. A JIT was also constituted by the Government of Gilgit-Baltistan, Home Department vide latter No. SO (PPr)14/2017(JIT) dated 16th Feb. 2019. After completion of the investigation by the JIT challan was submitted before the trial Court on 16/03/2019. The accused/ appellants/convicts were formally charged.

3. After conclusion of the trial the appellants/convicts were found guilty and awarded various punishments. They filed the instant Cr. Appeal bearing No.08/19 challenging the conviction while the trial Court sent murder reference under section 25 of ATA -- Act, 1997 read with section 374, Cr.P.C. for confirmation of the death sentence awarded to the appellants.

4. In order to prove the case prosecution produced 13 PWs and closed its case beside tendering some documents/ reports in support of their case, which were accordingly exhibited.

5. On 10-04-2019 the appellants/ accused were examined under section 342, however, they did not opt to be examined on oath under section 340(2), Cr.P.C. nor opted to produce any defence evidence.

6. On 16-04-2019, the impugned judgment of guilt was announced by the trial Court.

7. In terms of the said judgment the appellants were convicted and sentenced paras Nos.100 to 105 are relevant, which are reproduced as under:- "

100. In a case reported in 2009-SCMR-502, the Hon'ble Supreme Court of Pakistan has held that:-- "penalty of death must be imposed if the court finds the manner and methods of incident to be in the nature of brutality, horrific, heinous, shocking involving terrorist nature, creating, panic in the society as a whole or in part, callous and cold blooded

In such cases (list is not exhaustive) the penalty of death must not be withheld ; in other words, grave inhuman attitude, acts, manners, methods and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded."

101. In a similar nature case reported in 2005 PCr.LJ 1010, the Hon'ble Federal Shariat Court has held that:-- "Medical evidence had fully supported prosecution version that deceased was subjected to sodomy and was than strangulated to death ... Accused did not lead any defence evidence and also did not enter the witness-box to depose on oath in support of his plea of innocence. Case was shocking one in which accused had acted like a fiend and subjected a child of seven years to his unnatural lust and then killed him; Accused threw dead body of deceased in the canal in a attempt to cover up his crime... Accused, in absence of any mitigating circumstances, deserved the extreme penalty of death which was awarded to him by trial Court... Convictions and sentences recorded against accused by trial court being fully justified were upheld."

102. In the light of above quoted cases laws, I hold that the accused Noor Azam, accused Noor Muhammad, accused Muhammad Umar and accused Aziz are not entitled for any leniency in the sentence as they have kidnapped the minor boy, brutally subjected him to their lust and killed him by strangulation of his neck and to cover up crime, threw the dead body of deceased into river and placed heavy stones on the dead body of deceased.

103. In the light of the discussion made in paras Nos.10 to 102 above, I hold that the prosecution has proved the guilt of accused Noor Azam, accused Noor Muhammad, accused Muhammad Umar and accused Aziz for abduction, sodomy and murder of deceased Deedar Hussain in furtherance of their common intention. Hence, I convict accused Noor Azam, accused Noor Muhammad, accused Muhammad Umar and accused Aziz under section 302(b)/34, P.P.C. read with section 7(a) of Anti-Terrorism Act, 1997 and sentenced them to death. They shall be hanged by their neck till they be dead. The above named convicts/ accused shall pay Rs. 3,00,000/-(Rupees three hundred thousand) each as compensation to the LRs of deceased Deedar Hussain under section 544-A, Cr.P.C. In default of payment of compensation by convicts/ accused shall undergo imprisonment for 2 years. The above named convicts/accused are also hereby convicted under section 367-A/34, Cr.P.C. and sentenced them to undergo rigorous imprisonment for 25 year and to pay fine of Rs. 2000,00/-(Rupees two hundred thousand) each. In default thereof, the convict/ accused shall undergo imprisonment for 2 years. Accused Noor Azam, accused Noor Muhammad, accused Muhammad Umar and accused Aziz are also hereby convicted under section 337/34, P.P.C. and sentenced them to undergo rigorous imprisonment for 10 years and to pay fine of Rs.2,00,000/-(Rupees two hundred thousand) each. In default thereof, the convicts/ accused shall undergo imprisonment for 6 months. The above named convicts/ accused are also hereby convicted under section 201/34, P.P.C. and sentenced them under go for 5 years to pay fine of Rs: 1,00,000/- Rupees one hundred thousand each. Accused Aziz is also herby convicted under section 404, P.P.C. and sentenced him to undergo rigorous imprisonment for 2 years.

104. Benefits of section 382(b), Cr.P.C. be given to convicts accused. All the sentences shall run concurrently.

105. Warrant of commitment for sentence of death of convicts/accused Noor Azam, accused Noor Muhammad, accused, Muhammad Umar and accused Aziz be sent to the superintendent, District Jail Gilgit for safe Custody till the execution of sentences of death. Warrant of commitment of sentence also be sent to superintendent District Jail, Gilgit for execution of sentence of imprisonment awarded to the convicts/accused."

8. The learned counsel for the appellants/convicts raised multiple grounds in his appeal as well as in arguments and stated that the judgment passed by the learned trial Court is bad in law and not sustainable in the eyes of law. The learned counsel stated that names of the appellants are not mentioned in the FIR nor features of the assailants are mentioned in the statements. The learned counsel submitted that the impugned Judgment/order is contrary to law and facts on the record of case and no direct substantial evidence is available to connect the appellants/accused with the alleged offence, the impugned judgment is result of misconception, misunderstand-ing, and misinterpretation of law and the case is fit for clean acquittal. The impugned judgment/order is not sustainable and liable to be set-aside. The learned counsel further submitted that the alleged statements of the accused under section 21-H of Anti-Terrorism Act, 1997, have been ignored by this Hon'ble Court in various judgments as well as by the apex Court hence the impugned judgment is liable to be set-aside as there is no other worth reliance evidence on record. The learned counsel for the appellants/convicts lastly submitted that the appellants have been made scapegoat just to fill in the blanks and they deserve clean acquittal from the charges falsely levelled against them because of the wide publicity of the incident in print and electronic media. The learned Counsel relied on PLJ 2018 Cr.C. 564 Lahore High Court, 1995 SCMR 1345, 1972 SCMR 15, PLD 1978 Supreme Court 21, 2003 SCMR 1385, 2016 YLR Note 137, p.99 and PLJ 2017 FSC 151.

9. The learned Dy. Advocate General submitted that FIR was promptly lodged. The mode and manner of occurrence have been admitted by the defence and fully corroborated. The PWs who were having no ill-will or malice against the appellants/convicts supported the case prosecution. The medical evidence is a corroborative piece of evidence, which could be read in evidence in the aid of prosecution. Lastly that the cases of terrorism are committed with pre-planned. The assailants always try to conceal their identity upto the best possible extent but the crime was deducted because of day and night efforts of local police. The incident created a sense of fear and terror in the area and in such a situation the provision of Anti-Terrorism Act were fully attracted in light of the judgment of this Court titled Zakir Hussain v. The State reported in 2017 PCr.LJ

757. The learned DAG prays that the conviction recorded by trial Court be maintained being a well reasoned judgment.

10. Perusal of record shows that the non is nominated in the FIR which has been lodged by the father of deceased namely Ajaib Khan under section 302/ 377, P.P.C. and the same has been exhibited in the Court vide Exh.PW-11/C. Later on sections 6/7 ATA-1997 were also inserted during investigation of the case. Since the FIR was lodged against unknown person and dead body of the deceased was not traced out, therefore proceeding under section 157, Cr.P.C. were initiated by ASI Azizullah of Police Station Immit. On 06-02-2019 the father of deceased informed the local police that dead body of deceased Dedar Hussain has been found near "Tashnalote" Village. On the said information SHO of Police Station Immit went there and to asertain the cause of death started proceeding under section 174, Cr.P.C. During investigation father of the deceased suspected involvement of Noor Azam, Noor Muhammad, Muhammad Umar, Aziz beside the above mentioned four persons the father of the deceased raised his finger towards one Abdul Latif, Gohar Aman, Sher Azam and one Sher-ul-Islam.

11. The SHO/I.O. arrested the above accused and carried out the initial investigations later on the direction of SSP District Ghizer the investigation of the instant case was assigned to I.P/I.O. Sadat Ali who recovered one Q-Mobile of the deceased and its charger from accused Aziz from his house on his pointation. After insertion of section 6/7 ATA-1997, a JIT was constituted by the Home Department G.B and investigation of the case was assigned to IP Rehmat Baig. During investigation all the arrested accused confessed their guilt and narrated the circumstances, their plan to commit sodomy and then the murder which as per record and evidence on record was committed in a preplan manner and to further ensure to eliminate the all possible evidence with common intention of all the accused, now appellants.

12. During the investigation the I.O. took into the possession dead body of the deceased vide Exh.PW-8/H. The I.O. also took into his possession one stone which was tied between the legs of deceased vide Exh.PW-8/G. During postmortem the Medical Officer handed over one piece of small rope (Doori) which was tied around the neck of the deceased for strangulation and the same was taken into possession vide Exh.PW-8/F. Remaining proceeding i.e. handing over of dead body of the deceased to the legal heirs, last worn clothes of the decease, the handing over of the deceased for postmortem were also carried out, which are available on the judicial file from Exhs.PW-8/A, 8/B, 8/C, 8/D, 8/E, and 8/F. During investi-gation the present convicts/appellants pointed out the place of occurrence where dead body of the deceased was thrown into the river and three heavy stones were placed over the dead body of the deceased to ensure that the dead body may not float. The said identification memo was signed by PWs Qausar Baig and Shair Baig and were countersigned by the Magistrate 1st Class Ishkoman. On pointation of accused namely Aziz one Q-Moblie and its charger were recovered which has been exhibited as Exh.PW-5/A. The said mobile and charger were identified by the father of deceased namely Ajaib Khan in presence of marginal witnesses vide Exh.PW-4/B. Likewise the small rope (Doori) which was used for throttling the neck of the deceased was handed over to the I.O. of the case by the Doctor which was also identified by the father of deceased in presence of a Magistrate and the father of deceased stated that this piece of (Doori), was cut from Chadar of deceased.

13. The site plan of the occurrence was prepared on the pointation of the accused in presence of Magistrate and two other marginal witnesses and exhibited in Court Exh.PW-6/A. Site plan of recovery of Q-Mobile/charger was also prepared and exhibited vide Exhs.PW-12/A.

14. We have minutely scanned the record of the case in the light of the arguments of both the learned counsel for the parties. The case in hand was one, where none was nominated by the complainant and later on when the father of deceased gathered some information, he raised his finger towards the present convicts/appellants, who were later on arrested and when investigated, they confessed their guilt before the police. During investigation of the case I.O. recorded the statement of PW-1 Hazrat Bilal, PW-2 Nazer Khan and PW-3 Sadam Hussain, who are witnesses of last seen as the deceased was seen alive in the company of the convicts/appellants and was again never seen alive rather on the next day father of deceased came to the shop of Hazrat Bilal and inquired from him about the where about of his son. PW-3 Sadam Hussain has narrated the presence of the deceased in the company of above convicts/appellants on the day of occurrence. The statements of father of the deceased and PW-1 were not challenged by the defence. The above PWs are natural witnesses of the events and defence has not been able to point out any legal infirmity to reap any benefit in favour of the accused. Father of the deceased appeared before the learned trial Court as PW-4 and got recorded his statement. Strangely even no suggestion was put to this witness for false implication of the accused in the case after the occurrence nor any malice has been brought on record for involvement of the accused for murder of his deceased son. PW-5 Muhammad Ayaz is witness of recovery of Q-mobile, white colour and a charger from the possession of one Aziz, which were taken into possession vide recovery memo Ex. PW-5/A. This PW is an independent witness and has no personal motive for false implication of the accused in this heinous crime. The place of occurrence was pointed out by the accused in presence of the PW-6 Magistrate Manzoor Ahmed and PW-7 Quasar Baig. The statements of these PWs are quite in line with each other and lend full support to the prosecution evidence. It is worth mentioning that the series of events narrated by the PW-6 and PW-7 are fully corroborated from the conditional confessional statements of all the accused recorded under section 21-H of ATA, 1997. PW-8 is witness of some recoveries which have been exhibited in the trial Court as PW-8/A to PW-8/H. PW-9 SP Hassan Ali recorded the statements of accused under section 21-H, ATA, 1997, which are though conditional in nature and it depends upon circumstances of each case, whether the same could be read in aid of prosecution case or not. In many cases this Court for various legal as well as factual reasons have discarded the statements recorded under section 21-H, ATA, 1997. In the instant case, we also do not attach much weight to these statements. Even if these statements are excluded from the consideration, there is other abundant evidence to connect the appellants with the commission of the offence, as we have held in many judgments that the benefit of artificial doubt will not be extended and only the accused would be entitled to avail the benefit of inherent doubts. PW-10 Dr.Ghulam Abbas conducted postmortem, which has been exhibited in the trial Court as Ex. PW-10/A. The postmortem report is in line with the other prosecution evidences and lends full support to the case of prosecution and is a valid piece of corroboration.

15. The instant case hinges on the circumstantial evidence. There is a famous saying that "A man can tell lie but the circumstances never tell lie". A conviction on a capital charge could be based/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 the accused. In such cases the Courts while hearing an appeal against conviction recorded on circumstantial evidences has to see whether any link of evidence is missing or not. If the answer is affirmative and all the chain of events are established, the extension of benefit of doubt would be against all the cannon of justice. The plight of a family, who lost their near and dear, could not be described in simple words.

16. The version given by PW-1 and PW-3 at the very outset was consistent, straight forward which was corroborated by medical evidence, motive and recoveries. Prosecution witnesses have no rancor, enmity, ill-will or motive to falsely implicate the convicts/appellants in crime of this heinous nature. The evidence of prosecution is worthy of credence and has rightly been believed by the trial Court.

17. We deliberated about quantum of sentence awarded to the convicts/ appellants. The case of prosecution is based on circumstantial evidence as discussed in Para 15 supra. There is no direct evidence on record regarding sodomy and subsequent murder, but both these facts have been established through various pieces of evidence. Now it is almost all a recognized principle of criminal jurisprudence that evidence in criminal cases is not read in isolation rather after taking into account the cumulative effect of all pieces of evidence, either the story of the incident is believed or not. Each piece of evidence is corroborated by another piece of evidence. However keeping in view the attending circumstances of the case, we are of the view that the sentence of death should be converted into life imprison-ment, while maintaining the conviction. The convicts/appellants shall be entitled for the benefit section 382-B, Cr.P.C. The appellants are also fined 1000000/-(Ten lac) each under section 544-A, Cr.P.C. to be paid to the legal heirs of deceased and in default of payment they shall undergo 06 months R.I. The amount of fine shall be recovered as arrear of land revenue.

18. Murder Reference bearing No.01/2019 is not confirmed and answered in "NEGATIVE".

19. Criminal Appeal No. 08/2019 and Murder Reference No. 01/2019 are disposed of accordingly. JK/81/GB Appeal allowed.