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Petitioner: Sh. MUHAMMAD AMJAD VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Nazim Hussain Siddiqui, Hamid Ali Mirza, Sardar Muhammad Raza Khan Title: Sh. MUHAMMAD AMJAD vs THE STATE Case No.: Criminal Appeal No,352 of 2002 Date of Judgment:2003-02-20 Reported As: PLD 2003 Supreme Court 704 Result: Appeal dismissed
JUDGMENT
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 Fazal-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-B 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 reached Karachi from Islamabad by an 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 in 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
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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.F.R. 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, P.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 Alam 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 MLO P.W.16, Akhtar Younus P.W.17 Sajjad Ali ASIP P.W.18, Irian Ahmed P.W.19, Sikandar Ali P.W.20, Dr. Muhammad Amin Yousafzai S.P. City P.W.21 and Javed lqbal Inspector/I.O. P.W.22. 7. Mst. Razia Nawazish All 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 filed 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 notproduce any of these persons as witness in his defence). (4) The statement of Muhammad Arshad and Mst. Razia Nawazish All Khan P.Ws. Were recorded- in his presence before the Judicial Magistrate under section 164 Cr.P.C.
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(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 Chinoy 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, he 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 All Khan and that the statement of Mst. Razia Nawazish All 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
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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 unclaimed 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 tiles 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?
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(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.0 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. Filed 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 SCM R 448), Painda Gul and another v. The State and another (1987 SCM R 886), Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811), Shahid Orakzai v. Pakistan Muslim League Nawaz Group etc. (2000 SCM R 1969), Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others (2001 SCM R 279), Imran Ashraf and 7 others v. The State (2001 SCM R 424), Dildar v. The State etc (PLD 2001 SC 384) and Mst.Baswa r Sultan v. Mst.Adeeba Alvi (2002 SCM R 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 from 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 SCM R 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 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. 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
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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. He also argued that no independent witness was produced regarding recovery of dead body from dickey, where the dead body was alleged to have been 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.
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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 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 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 SaM Khan P.W., who was a waiter in Marriott…
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