2019 PLP 1903 (YLR)

ALI BAIG, J.

The instant criminal appeal under section 410, Cr.P.C. has been preferred by the appellants/ convicts against the impugned judgment dated 20-02-2017, passed by the Anti Terrorism Court Gilgit-Baltistan, whereby the learned trial court has convicted the present appellants/convicts under sections 302(b), P.P.C. and 6/7 ATA, 1997 and sentenced the appellant namely Ehsanullah to death and sentenced the appellants namely Tauqeer Ahmed and Jabir Khan to suffer life imprisonment with a fine of Rs.3,00,000/- to each appellant.

2. Through this single judgment we purpose to dispose of two Criminal Appeals bearing Nos. Cr. App. 06/2017, Cr. App. 07/2017 as these two appeals emanate from one and same judgments rendered by the learned Judge Anti-Terrorism Court No.1, Gilgit-Baltistan dated 20-02-2017 and Murder Reference No.03/2017, forwarded by the learned Judge ATC No.1 Gilgit.

3. Briefly prosecution story as disclosed in the FIR are that the deceased Toufeer Abbas Paal son of Zafar Hayat Paal was serving as Assistant in the National Bank of Pakistan Jutial Branch. On 16-12-2013 at 10:20 p.m. the deceased was returning towards his house after dropping his colleague near Civil Supply Directorate Jutial, Gilgit. But on the way some un known terrorists murdered the deceased and his vehicle was found in damaged condition along with dead body of deceased near Shah Farman house at upper Jutial. The deceased had no personal enmity with any person. Prior to the present occurrence a person, namely Wakeel was murdered at Jutial at about 6:30 p.m. which caused tense in the area. The killing of the deceased is a result of terrorism.

4. After lodging formal FIR, the task of investigation in this case was entrusted to JIT (Joint Investigation Team). Accordingly, the JIT started investigation. SIP Muhammad Hussain PW-22 has carried out initial proceedings of the instant case. He proceeded to the place of occurrence on official vehicle. He took into possession one empty shell of .30 bore Pistol from rear seat of the damaged vehicle of the deceased and another empty shell of 30 bore Pistol was recovered at a distance of 30 feet from the said vehicle and prepared recovery memo. Exh.P.W.10/B. The above named I.O/P.W-22 took into possession the vehicle of the deceased bearing Registration No.NCP.GLT-330 and prepared recovery memo Exh.P.W.10/A. He prepared inquest report Exh.P.W.22/A and prepared site plan Exh.P.W.22/B of the place of occurrence on 17-02-2013, on the pointation of the complainant. He recorded statements of P.Ws. under section 161, Cr.P.C. He arrested accused/convict namely Jabir Khan on 16-3-2014.

5. I.P. Syed Sajjad Hussain P.W-23 has partially investigated in this case. Accused/convict Ehsanullah was also arrested. During interrogation appellant/ convict namely Ehsanullah disclosed that he and his co-accused namely Jabir Khan and Tauqeer Ahmed had committed the murder of deceased Toufeer Abbas Paal. During interrogation one .30 bore Pistol was recovered from the appellant/convict namely Ehsanullah and another .30 bore Pistol was recovered from the possession of appellant/convict namely Tauqeer Ahmed. The recovered two .30 bore Pistols were sent to the National Forensic Science Agency Ministry of Interior Islamabad for analysis and expert opinion. The appellants/convicts were committed to judicial lock-up at Gilgit after recording their confessional statement under section 21-H of Anti Terrorism Act 1997 by S.S.P, Gilgit.

6. After completion of usual investigation the challan/final police report was submitted in the learned Anti Terrorism Court Gilgit. On receipt of challan the learned trial court summoned the convicts/appellants and state/Special Public Prosecutor. Accordingly, the convicts/appellants were produced in the trial court by prosecution. The learned trial court after providing the requisite documents and statements to the convicts/appellants as required under section 265(C), Cr.P.C. framed formal charges against the convicts/appellants on 09-9-2014. To which the appellants/ convicts pleaded not guilty and opted to contest the case/face trial.

7. During trial the prosecution in order to prove its case produced 24 prosecution witnesses in the trial court and thereafter, the prosecution closed its evidence through Special Public Prosecutor on 07-12-2016.

8. After closing of prosecution evidence, the learned trial court recorded the statements of the appellants/convicts under section 342 Cr.P.C. on 08-12-2016. The convicts/ appellants in their statements recorded under section 342, Cr.P.C. denied the prosecution's allegations and professed innocence. However, the convicts/appellants neither got recorded their statements on oath under section 340(2), Cr.P.C. nor produced witnesses in their defence in the trial court.

9. At the conclusion of the proceedings, after hearing arguments of the learned counsel for the parties and going through material available on record, the learned trial court convicted the appellant/convict namely Ehsanullah under section 302(b), P.P.C. and sections 6/7 of ATA and sentenced to death and co-accused namely Tauqeer Ahmed and Jabir Khan were also convicted under section 302(b), P.P.C. and sections 6/7 of ATA and sentenced to suffer rigorous imprisonment for life vide the impugned judgment dated 20.02.2017.

10. The learned counsel appearing on behalf of the convicts/appellants contended that the impugned judgment passed by the learned trial court is contrary to law and facts on the record of the case, as such, the impugned judgment passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the appellants/ convicts further argued that the appellants/convicts were not directly nominated in the FIR as the same was lodged against un-known persons/culprits. The learned counsel for the appellants/ convicts further argued that no eye-witnesses have witnessed the occurrence and case of the prosecution is based upon circumstantial evidence and conviction cannot be based on the circumstantial evidence. The learned counsel for the appellants/convicts further argued that the learned trial court awarded sentences to the appellants/convicts mainly on the basis of confessional statements of the appellants/convicts recorded under section 21-H of the Anti Terrorism Act by Senior Superintendent of Police Gilgit, which were recorded by the learned trial court after lapse of about 4 to 6 months of the occurrence, hence confessional statements of the appellants/convicts recorded by SSP Gilgit are not admissible in evidence. The learned counsel for the appellants/convicts further argued that the appellant/convict namely Ehsanullah has not mentioned in his confessional statement recorded before S.S.P Gilgit, regarding his extra judicial confessions allegedly made before P.W.-4 namely Muzaffar Hussain. Concluding his arguments, the learned counsel for the appellants/convicts contended that since the prosecution has miserably failed to prove its case against the appellants/ convicts beyond any shadow of doubt, therefore, the appellants/convicts may be acquitted from the charges levelled against them in the interest of justice.

11. Conversely, the learned counsel for the complainant Mr. Shaukat Ali, Advocate and the learned Dy. Advocate General appearing on behalf of the state defended the impugned judgment passed by the learned trial court contending that on the day of present occurrence father of principal accused/ appellant namely Ehsanullah was murdered at Jutial Gilgit, at about 6:30 p.m. by unknown person/ persons and as such, motive behind the occurrence was established as in retaliation of murder of his father he along with his co-accused/other two appellants have committed murder of the deceased Taufeer. Abbas Paal. The learned counsel of the complainant further contended that the appellants/convicts have confessed their guilt in their confessional statements recorded by SSP Gilgit, under section 21-H of ATA 1997 and appellant/convict namely Ehsanullah has also confessed his guilt before P.W-4 namely Muzaffar Hussain. The learned counsel for the complainant and Dy. A.G. further argued that weapons of offence i.e. 30 bore Pistols have been recovered by the police on the pointation of the appellants/convicts and cases under sections 13 Pakistan Arms Ordinance 1965 have been registered against the appellants/convicts namely Ehsanullah and Tauqeer Ahmed vide FIRs Nos. 49/2014 and 54/2014 respectively. The learned counsel for the complainant and the learned Dy. Advocate General further argued that report of Arms Expert is positive which support prosecution version. The learned counsel for the complainant and learned Dy. Advocate General further contended that postmortem examination on the dead body of the deceased was also conducted by Dr. Muhammad Hussain, Medical Officer which also support prosecution case, as such the prosecution has successfully proved its case against the appellants/ convicts by adducing unimpeachable and reliable evidence and the learned trial court has rightly convicted and sentenced the appellants/convicts vide the impugned judgment which may be maintained in the interest of justice.

12. We have heard the learned counsel for the parties at considerable length, perused the relevant record and given our anxious thought to the submissions made by the learned counsel for the parties.

13. Having examining the entire prosecution's evidence and attending submissions made by the learned counsel for the parties, we find that the case of the prosecution mainly depend on the following categories of evidence. (1) Confessional statement of appellants/convicts recorded section 21-H ATA, 1997 by the SSP Gilgit. (2) Recovery of weapons of offence. (3) Medical evidence. (4) Extra judicial confession of the appellant/ convict namely Ehsanullah confessed before Mr. Muzaffar Hussain P. W-2. (5) Positive report of National Forensic Science Agency. (1) Confessional statement of appellants/convicts recorded by the S.S.P. Gilgit under section 21-H, ATA, 1997.

14. The appellants/convicts have voluntarily confessed their guilt before the learned S.S.P. Gilgit, on 19-5-2014. The P.W.-2 namely S.S.P. Muhammad Ali Zia has recorded confessional statement of appellant namely Ehsanullah vide Exh.P.W-2/A, confessional statement of appellant namely Jabir Khan vide Exh. P.W-2/B and confessional statement of appellant/convict Tauqeer Ahmed vide Exh.P.W-2/C under section 21-H ATA 1997.

15. From perusal of confessional statements of the above named appellants/ convicts it transpires that the confessional statements of the appellants/convicts are voluntarily, without any pressure, threat or inducement, which are corroborated by recovery of weapons of offence i.e. two 30 bore Pistols and empty shells of .30 bore Pistols on the pointation of the appellants/convicts namely Ehsanullah and Tauqeer Ahmed, autopsy report, report of Arms Expert and extra judicial confessional statement of appellant/ convict namely Ehsanullah made before P.W.-4 namely Muzaffar Hussain. Mr. Muhammad Zia S.S.P. Gilgit had appeared in the witness box before the trial court and has got recorded his statement. The above named P.W has recorded confessional statements of appellants/convicts after fulfilling codal and legal formalities and his statements could not be shattered by the defence counsel in his cross-examination. (2) Recovery of weapons of offences and empty shells of 30 bore Pistol.

16. From perusal of record it shows that one 30 bore Pistol/weapon of offence was recovered by police on the pointation of appellant/convict namely Ehsanullah vide Exh.P.W.17/A in presence of marginal witness namely Syed Ghaib Ali Shah, Naib Tehsildar/Duty Magistrate, Zahoor Ahmed and Liaqat Hussain on 17-5-2014. Another weapon of offence i.e. 30 bore Pistol was also recovered by police on the pointation of appellant/ convict namely Tauqeer Ahmed son of Muhammad Faqeer vide Exh. P.W.15/A on 11-6-2014, in presence of marginal witnesses namely Syed Ghaib Ali Shah, Naib Tehsildar/Duty Magistrate, Rehan Haider son of Muhammad Muneer and Jabir Hussain son of Ismail. Moreover, police had recovered one empty shell of .30 bore Pistol and one pelt of .30 bore Pistol from the damaged vehicle of the deceased bearing registration No. NCP GLT-330 vide Exh.P.W.15/A on 16.12.2013 in presence of P.Ws namely Syed Gahib Ali Shah N.T/Duty Magistrate, Imtiaz Hussain F.C. and Shehzad Hussain F.C. The police have also recovered/taken into possession one empty shell of 30 bore Pistol from the place of occurrence vide Exh.P.W.10/B on 16-12-2013 in presence of marginal witness namely Zahoor Ahmed, Liaqat Husain and Syed Gahib Ali Shah N.T/Duty Magistrate. (3) Medical Evidence.

17. The third material piece of evidence in this case is medical evidence. Dr. Muhammad Hussain, Medical Officer DHQ Hospital Gilgit, conducted postmortem examination on the dead body of deceased on 17-12-2013 at about 10:30 p.m. and has prepared Medico Legal/ Autopsy report Exh. P.W. 19/A which also supports prosecution's version. Dr. Muhammad Hussain M.O. found the following injuries on the dead body of deceased as per postmortem examination report which is re-produced as under EXTERNAL EXAMINATION Dead body of a young man about thirty three years old. He was wearing black coat, maroon chucked shirt, blue coloured jeans with grey colour under wearing 2x2 cm hole on left arm pit of coat, shirt and white jersey and exit holes on all three wearings. Another entry hole on all wearings was found on back of right side. Sand stones and piece of shattered glass found in right pocket of the jacket. Rigor mortis present, mouth and eyes closed, hands opened. Externally

1. There was 4x1 inches abrasion on right supra orbital area extending to temple and zygomatic bone underlying bone found intact on palpation.

2. Multiple superficial abrasions on dorsum of left hand.

3. Bluish discoloration of whole back.

4. On left side of the chest there was 1x1 cm entry wound 2 inches above and lateral to the left nipple. Exit wound 2x2.5 cm 2.5 inches above and lateral to the right nipple.

5. On left mid arm. There was a superficial 2x2 cm wound found.

6. Another entry wound lx1 cm on right posterior chest 3 inches lateral to the posterior axillary fold just below the infra spinous area. No exit wound found except a hard metallic object was felt below the skin approximately 9 inches below the left arm pit in 10th intercostals space. On incision bullet was extracted. INTERNAL EXAMINATION.

1. CHEST CAVITY. On opening the chest cavity, it was full of blood. Upper lobes of the both lungs were found shattered with large vessels injuries.

2. ABDOMINAL CAVITY On opening the abdominal cavity, it was full of blood. There was liver injury involving both right and left lobes and stomach was perforated both anteriorly and posteriorly and there was a penetrating wound involving the hilum of spleen and track found in left lateral wall extending to the subcutaneous area communicating with the wound made for extraction of the bullet. CAUSE OF DEATH In my opinion the deceased may have died due to chock and major visceral injuries due to firearm injury. (4) Extra judicial confession of the appellant namely Ehsanullah.

18. Fourth material piece of evidence in this case is extra judicial confession of the appellant/convict namely Ehsanullah. The above named appellant/convict has confessed his guilt before P.W.4 namely Muzaffar Hussain which has narrated by above named P.W in his statement recorded before the learned trial court which is reproduced as under:- Stated that I am serving as plumber in WASA and my duty is at the water Tank situated at Yaseen Colony Jutial. On 15-02-2014, at about 10:00 AM, I was going from my home towards my duty. When I reached at Chir ( ) Chock Jutial, from upper side of Salar Road, accused Ehsan came and asked me to stop and told me that he has some personal business with me. Accordingly, I stopped. He came near me. He told me to take him to the house of Paul and Jahangir. Paul was father of deceased. Accused further told me that he wants to apologize from the father of the deceased as he has murdered his son along with his two companions. I replied him that he should take his own family members to the house of deceased and I cannot take you to the house of deceased. From there I went to my duty.

19. The above named P.W is not relative of the deceased and he is independent and reliable witness. He has faithfully deposed before the learned trial court what was told to him by appellant/convict namely Ehsanullah. The conviction can be based on extra judicial confession of an accused if medical evidence and Chemical Examiner/ Firearms Expert Report duly corroborate his extra judicial confession. Our this view is fortified by view expressed by a Division Bench of the Hon'ble Supreme Court of Pakistan in case titled "Sheraz Tofail v. The State" reported in 2007 SCMR SD 483. (5) Positive report of Chemical Examiner/Arms Expert.

20. Fifth material evidence of in this case is positive report of National Forensic Science Arms Exh. P/A. After recovery of weapons of offence and empty shells and sika goli of .30 bore Pistols were sent to National Forensic Science Arms Islamabad for analysis and expert opinion by the prosecution. The Project Director National Forensic Science Arms Islamabad has forwarded his report vide Exh.P/A which is reproduced as under:- Methodology: Three test cartridge cases are prepared by the pistol F1-06A0211 which are signed and labeled as T1-06A0211, T2-06A0211 and T3-06A0211 and also Three test cartridge cases are prepared by the pistol F2-06A0211 which are signed and labeled as T4-06A0211, T5-06A0211 an T6-06A0211. The crime cartridge casus are compared with test cartridge cases under high magnification Results: The crime cartridges C1-06A0211 and C2-06A0211 are positively matched with the test cartridge cases T1-06A0211, T2-06A0211 and T3-06A0211. The points of similarities in crime cartridge cases and test cartridge cases are following:

1. Shape and size of firing pin mark

2. Position and angle of firing pin mark

3. Dent of breech face mark

4. Drag mark

5. Striations on breech face mark

6. Cut mark The bullet B1-211 is a .30 bore full metal jacketed bullet fired from a rifled firearm and the bullet B2-211 is only the lead core of a metal jacketed bullet fired from a rifled firearm. Opinion: The pistol F1-06A0211 is in working order at its present condition. The pistol F2-06A0211 is in working order at its present condition. Crime cartridges C1-06A0211 and C2-06A0211 belong to one group and had been fired from the pistol F1-06A0211.

21. From perusal of aforesaid report of Chemical Examiner it appears that the said report is positive and supports prosecution's version.

22. Furthermore, the appellants/ convicts have failed to get record their statements on oath under section 340(2), Cr.P.C. and have also failed to produce D.Ws in their defence in the trial court.

23. After careful examination of the record, we have come to the conclusion that overwhelming circumstantial evidence has been brought on record against the appellants/convicts namely Ehsanullah and Tauqeer Ahmed by the prosecution. If the circumstantial evidence connects the accused with the offence without any reasonable doubt, the same can form basis for awarding capital punishment. In this connection reference can be made to the reported judgments of the Hon'ble Supreme Court reported as under-- (1) 1998 SCMR 2669 (2) 2007 SCMR 518.

24. In the circumstances and facts discussed above, we are of the considered view that the prosecution through confessional statements of the appellants/ convicts, medical evidence, recovery of weapons of offence and empty shells of weapons of offence, positive report of Arms Expert/Chemical Examiner, extra judicial confession of the appellant namely Ehsanullah before P.W-4 and other incriminating material has proved its case beyond any shadow of doubt against appellants/convicts namely Ehsanullah and Tauqeer Ahmed, hence the learned trial court has rightly and legally convicted the above named appellants/convicts and sentenced them vide the impugned judgment.

25. In view of above the Murder Reference No.3/2017 forwarded by the learned trial court is answered in affirmative.

26. As far as appellant/convict namely Jabir Khan is concerned, no overt act of effective firing was attributed to the above named appellant/convict by the P.Ws in their statements recorded before the learned trial court and neither any weapon of offence nor any other incriminating material has been recovered from his possession nor on his pointation by the prosecution, hence confessional statement of appellant namely Jabir Khan recorded by S.S.P. Gilgit under section 21-H, ATA, 1997 is not corroborated by any other incriminating material/ circumstantial evidence thus the appellant/ convict namely Jabir Khan is acquitted from the charges levelled against him by prosecution by extending benefit of doubt in his favour.

26. In view of what has been discussed above, we find no merit in this appeal to the extent of appellants/convicts namely Ehsanullah and Tauqeer Ahmed, which is hereby dismissed. All sentences, awarded to the above named two appellants/convicts by the learned trial court vide impugned judgment dated 20.02.2017 including sentence of death awarded to appellant/convict namely Ehsanullah are upheld and impugned judgment to the extent of appellant/ convict namely Jabir Khan is set aside and he is acquitted from the charges. Certified true copy of this judgment be placed on the files of Criminal Appeal No.6/2017 and Murder Reference No.03/2017. File. JK/228/GB Order accordingly.