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Petitioner: JAVED AHMED SIDDIQUI and others VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Ali Sain Dino Metlo, Abdul Rasool Memon, Rana Muhammad Shamim Title: JAVED AHMED SIDDIQUI and others vs The STATE Case No.:Special Anti-Terrorism Appeals Nos. 77, 79 and 80 of 1999 and
JUDGMENT
Reported As: 2016 YLR 577 Result: Appeals dismissed Judgment JUDGMENT DR. RANA MUHAMMAD SHAMIM, J.---The appellants in the above appeal have impugned the judgment dated 6.7.1999 passed by learned Judge Anti-Terrorism Court No.1 Karachi whereby they were awarded death sentence for committing Mil& under section 7(i)(b) of A.T. Act read with sections 302(b) and 34, P.P.C. And convicted and sentenced R.I. For 10 years and to pay a fine of Rs,75,000/- each, in case of non-payment of fine to undergo R.I. For two years; for the offence under section 392 r/w 34, P.P.C., registered at P.S. Saudabad vide Crime No.123 of 1998. Since the facts of all the appeals are the same as having been arisen of the same FIR/offence and by same judgment all the appellants have been convicted,' we propose to decide all the appeals through this common judgment. 2. Brief facts out of which the above appeals have arisen are that on 30.12.1998 on telephone call from Humair Iqbal, son of the complainant, the Additional S.H.O. Reached at House. No.D.2/133 and found dead bodies of three persons Nawab Ahmed, Abrar Begum and Asif Nawab. He, thereafter came at P.S. And lodged the FIR against unknown persons. 3. During the course of investigation the appellants including accused Wasim, were arrested. Appellant Javed also led the police party to three places from where police recovered broken plastic pistols, blood stained churies and burnt pieces of shirt and ashes while appellant Farhan had led the police to his house from where golden ornaments and prize bonds were recovered. 4. On receipt of challan the copies were supplied to the appellants while charge was framed under section 392, P.P.C. And 7(i)(a) of A.T. Act read with sections 302, 34, P.P.C. To which the appellants pleaded not guilty and thus the trial commenced.
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5. The prosecution to prove its case examined following 14 witnesses:-- (1) PW-1 Dr. Noohina Hassan (Ex:9) who has produced Medical certificate of accused Asma Nawab (Ex-10), post mortem notes of deceased Abrar Begum (Ex.10/A). (2) P.W.2 Dr. Kazi Asif Jan (Exh.11) who produced the post mortem report of deceased Asif Ahmed and Nawab (Ex.12 & 13). (3) PW-3 Maqbool Ahmed Judicial Magistrate (Ex.14) who produced the confessional statement of the accused persons (Ex.15 to Ex.18) and memo of identification parade (Ex.19). (4) PW-4 Syed Iqbal Hassan (Ex.20) who has produced FIR (Ex-21) and mashirnama of place of incident (Ex.22). (5) PW-5 Nazir Ahmed (Ex.23) who has produced inquest reports and memo. Of dead bodies (Ex.24 to 229). (6) PW-6 Taj Muhammad (Ex-30) who produced letters, two finger prints with its photographs, finger prints of accused persons and report (Ex.31 to 42) (7) PW-7 Absar Hassan (Ex.43) who has produced memo of recoveries and sketch of pistols, knives and burnt shirt and ashes (Ex.44 to 46), mashirnama of wardat (Ex.47), mashirnama of place of recovery of plastic TT pistols and knives (Ex.48 & 49), mashirnama of identification of golden ornaments (Exh.50), list of Sr. No. Of prize bonds (Ex.51), two broken plastic TT pistols (Articles A & B), two big knives/chhuries (articles C&D), ash and burnt clothes (Articles E&F), golden earrings, one g.Olden chain with locket and one golden ring (G, H&I) and 52 prize bonds of 1000 each (Article J). (8) PW-8 ASI Arooshah (Ex.52) who has produced arrest of accused Asma Nawab (Ex.53). (9) PW-9 Asfar Mehboob (Ex.54). (10) PW-10 Jamil Ahmed (Ex-55) who has Produced the mashirnama of recovery of prize bonds (Ex.56). (11) PW-11 Bashir Ahmed (Ex.57) (12) PW-12 Tapedar Khuda Bux (Ex.58) who has produced plan (Ex.59) (13) PW-13 Abdul Wahid (Ex.60) who has produced chemical analyzer report (Ex.60 to 63). (14) PW-14 Inspector Latif (Ex.64) who has produced mashirnama of arrest of accused Wasirn and Farhan and of accused Javed (Ex.66 & 67), four platform tickets of Multan, one Telicard, cash of Rs.9100, two PTA tickets, boarding ticket and two purses (Articles K to U) and three packets containing clothes of deceased (Articles V, W & X). 6. The prosecution thereafter closed its side and the statement of accused persons were recorded under section 342, Cr.P.C. In which they have denied the allegations leveled against him. Appellant Farhan in his statement took the plea that he is working in Multan and was called immediately due to illness of his mother and was arrested from his house along with co-accused Wasim on 3-1- 1999, who is the son of his sister. He further alleged that he was taken to police station where he was severely tortured by S.H.O. Mumtaz who also forcibly got his signature on a paper. He further stated that thereafter on 7-1-1999 he along with Wasim and Javed were taken to City Court where SHO Mumriz and SHO Abdul Latif got their signatures on some papers. Appellant Javed took the stand that he had refused one Shahzad, who was the driver of SHO Mumriz to repair the car he brought without any payment for doing such repair, which had resulted in a quarrel between both. He further alleged that said Shahzad had threatened him that he will involve the appellant in a case so that he should remain in jail for life and in consequence thereof he was arrested on 31.12.1998 when Shahzad came with two other police constables at his workshop. He further alleged that he was severely beaten by the police. He also alleged that on 7.1.1999 he along with Wasim and Farhan were taken to City Court where SHO Latif got their signatures' on some papers. Appellant Mst. Asma Nawab in her statement only stated that she did not know what had happened in her house and who had killed her parents and brother.
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7. The appellant Asma Nawab examined herself on oath (Ex.85) while appellant Javed Ahmed Siddiqui, Farhan Khan and accused Wasim did not opt to examine themselves on oath. As regards defence witnesses appellant Asma Nawab did not examine any witness in her defence while appellant Javed had examined Nasir Ahmed (Ex.77) and Abdul Salam (Ex.77) (sic) and appellants Javed, Farhan and accused Wasim examined Sayed Ali Raza (Ex.80), Rashid Ahmed (Ex.82) and Mukhktiarkar (Ex.83) in their defence. 8. The learned trial Court had also examined two more witnesses while exercising powers under section 161 of Qanun-e-Shahadat Order, 1984 which followed by further questions put to appellant Asma Nawab and further cross-examination of PW SHO Abdul Latif. 9. The learned trial Court in the light of material placed before it formulated the following points for determination:-- (1) Whether deceased Nawab Ahmed, Abrar Begum and Asif Nawab had received incised injuries and died on account of the said injuries? (2) Whether the accused had caused the said injuries? (3) Whether the accused had committed robbery from the house of the deceased and caused murders, which created terror and sense of fear and insecurity in the people? (4) What offence, if any, the accused have committed? 10. Learned trial Court after hearing the learned counsel for the appellants and so also the State counsel and perusing the material available on record convicted the appellants, as stated above, hence these appeals. 11. Mr. Waqar Shah, learned counsel for appellant Javed Ahmed Siddiqui in Spl. ATA Appeal No 77 of 1999, has contended that appellant Javed Ahmed Siddiqui is innocent and has falsely been implicated in this case. He further contended that the only piece of evidence on which the entire prosecution case is premised against appellant Javed is the recovery of Churry and his confessional statement. He further contended that the confessional statement is inculpatory to the extent of robbery while exculpatory to the extent of murder hence the same cannot be termed as a piece of evidence for conviction for the offence of murder. He further contended that the confession as recorded is against the provisions of section 364, Cr.P.C., there was also defect in the certificate. Learned counsel further contended there was no confession as to murder by the appellant Javed hence the question of corroboration does not arise and the finding recorded by the learned trial Court is thus not tenable. Without prejudice to the above, learned counsel further contended that the motive was to commit robbery and not the murder of the innocent persons. He contended that it was a spur of moment, on instigation of Asma, that the murder was committed. Learned counsel further contended that appellant accused Asma Nawab had been changing the version which makes her to be involved in the commission of the offence. Learned counsel further contended that the incident is unseen and the evidence of the prosecution witnesses is not confidence inspiring as the same is contradictory on material aspects and the conviction based on circumstantial evidence is not sufficient to prove the crime as against appellant Javed. In support of his contentions, learned counsel has placed reliance on:-- AIR 1952 SC 343 (354) AIR 1931 Allahabad 1 2008 SCMR 670. 12. Mr. A.Q. Halepota, learned counsel for appellant Muhammad Farhan Khan in Spl. ATA Appeal No.79 of 1999, has contended that the FIR is blind. There is no eye-witness of the incident and the prosecution had to rely upon circumstantial evidence. Learned counsel further contended that the FIR was lodged at 11 A.M. By brother-in-law while the people were outside the house and the police was inside the house with dead bodies. The FIR is only lodged for murder and nothing was found
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missing at the house. The complainant is also a mashir but mushirnama was not mentioned in the FIR. He further contended that due to publicity every one knows it is Asma Nawab's case, hence the learned trial Court appears to have influenced with the same. It has not come on record about sensation of incident and of highlighting in media. He further contended at the impugned judgment is mainly based on the confessional statement of appellants which is last in series of investigation. He in support of this relied upon 1985 MLD 604 and AIR 1952 SC 159. He further contended that the learned trial Court has failed to consider that the confession is not true and the same has no evidentiary value. The confession was to be recorded on the very next day of arrest but the same was recorded on 7.1.1999 in which what was stated was tutored. He further contended that there is delay. Of five days in recording of the confession and the possibility of pressuring and maltreating the appellants to give a confession cannot be ruled out. He referred to the record and submitted that the request for recording the confession was made on 6.1.1999 and on 7.1.1999 it was recorded. Learned counsel further contended that appellant Farhan has nowhere stated in his confession that murders were committed with Churries. Even otherwise the Churries were recovered on pointation of appellant Javed. He further contended that all the appellants should not have been made to sit together while reflection time is given. All were visible from the Court room. They were under the care of one clerk only. While recording confession of one accused the same could easily be heard by others. Indeed, all the accused should have been produced separately with separate time of reflection. No separate first warning was given to each appellant before recording of confessional statement. Learned counsel further contended that on confession of Wasim on third page signatures of Farhan is taken. Learned counsel further contended that the retracted judicial confession cannot be made the basis of conviction. All the accused were produced at 10:00 a.m. And were given the same time. No time for reflection was given. How to all the four accused the time for reflection was distributed. Learned counsel submits that the requirement of law is that warning must be given individually to each accused. Magistrate has not mentioned that how much time is given for reflection. Warning given to all accused is invalid in law. No assurance by the Magistrate was given to the accused that after recording of confession they will not be handed over to the same police: Confession would be tutored if the recoveries are made on the pointation of accused and police knew if the same is stated in confessional statement. On finger prints learned counsel argued that it is alleged that left middle finger print of appellant Farhan has been lifted from Almirah, which is semi visible print. The impressions were not taken from the house articles in presence of Magistrate nor any musheernama was prepared for taking finger prints at the place of incident. It has also not come in evidence that after commission of murder and robbery who was in control of the house where the incident took place. While relying on the definition of skilled person under section 45 of the Evidence Act learned counsel contended that the Court should have asked PW-11 Bashir, a finger print expert, whether he has knowledge and skill of being expert and since this question has not been put to the said witness his evidence is to be excluded. He further contended that the defence counsel was right by not asking such question. He further contended that the expert in his report has not given any reason of matching with finger prints. Both P.W.-6 and PW-11 are not skilled persons and may not be treated as experts. Even no question was put as to whether the finger prints of appellant Farhan were taken or not. Learned counsel contended that the evidence was subsequently created. He further contended that according to prosecution the Almirah was opened by appellant Farhan but no robbed money was recovered from him. Learned counsel further contended that the evidence was not properly recorded by the learned trial Court in that respect learned counsel has referred to Article 47 of the Qanun-e-Shahadat
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Order, 1984. While relying on Article 43 of Qanun-e-Shahadat Order, 1984, learned counsel contended that appellant accused Javed after his arrest made discoveries and on his pointation recoveries of crime i.e. Burnt pieces and ashes for clothes etc. Were recovered but his evidence cannot be accepted on its face value for convicting co-accused as there is no corroboration in material aspects of the matter. The second piece of evidence is that Farhan led the , police party for recovery of pistol which was already known to the police and was not a secret as recovery from there had already been effected on pointation of Javed hence this piece of evidence may have not been used against appellant. Farhan, who alleged to have led the police to his house and produced robbed articles i.e. Prize bonds etc. He further contended that PW-9 has stated in his evidence that he saw one girl and three persons but has identified one appellant and co- appellant. Mushirnama is contradictory to the attending circumstances. The witnesses of identification parade were not examined. Learned trial Court has not considered the fact that why the criminals who have committed these murder and robbery should look back while leaving the house. He contended that if there are valid reasons, finding of learned trial Court may not be relied upon by this Court. He contended that the learned trial Court has not properly appreciated the evidence as held in AIR 1952 SC 159 and the same have created doubt in the prosecution case and it is settled law that the benefit of doubt always to go in favour of the accused as held in 1987 PCr.LJ 2173(2177). Learned counsel in support of his arguments has further placed reliance on the following cases reported in:-- 1975 PCr.LJ 70(74) A PLD 1975 SC 187 (191) C 1984 PCr.LJ 611 (616)C (619) E (620) 1985 MLD 604 (625)J (631)Q PLD 1990 Karachi 275 PLD 1987 Quetta 96 (102)B 2006 SCMR 1707 1713(E) AIR 1976 SC 6 (73) AIR 1999 SC 3318 (Paras 18 and 19). 13. Mr. Iqtidar Ali Hashmi; learned counsel for appellant Asma Nawab in Spl. ATA Appeal No.80 of 1999, while adopting the above arguments advanced by learned counsel for other appellants, has firstly added that appellant Asma Nawab is a helpless poor, distress and unfortunate lady whose entire family has been murdered and she is behind the bars for the last about 10 years. He further submitted that had she been a witness she would have unearthed the real culprits but she has been made a victim of the dishonest investigation by the police. Learned counsel further contended that there is no evidence against appellant Asma Nawab except the confession which is not admissible in law as being not an inculpatory confession. He contended that the prosecution could not prove its case beyond any reasonable doubt and it is a settled principle of law that even if simple circumstance creates doubt, the benefit would be given to the accused but the learned trial Court has acted contrary to that. In support of his contentions he placed reliance on:-- 1999 SCMR 1345 1992 SCMR 196 (A&E) PLD 1996 SC 1 (D) PLD SCMR 336(B) 1995 SCMR 985 1995 SCMR 1359 14. Mr. Saifullah, learned Assistant Advocate General, appearing for the State, has supported the impugned judgment by saying that the appellants do not deserve any sympathy from this court as they are involved in heinous crime. There is no dishonest investigation on the part of the police as the police got the clue from appellant Asma Nawab. Keys of Almirah were lying in the brazier of her
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mother, which was pointed out by appellant Asma Nawab. On the pointation of appellant Asma Nawab the place of incident was visited by the police. P.W. Asfar livlihood has seen all the accused persons coming from the house/place of incident. Ali the appellants have confessed their crime and there is no contradiction in their statements. Learned A.A.-G. Further contended that the confession of appellant Asma Nawab is exculpatory as she wanted to save herself. He contended that the circumstantial evidence is against the appellant and section 34, P.P.C. I s applicable and they have rightly been convicted. He further contended that the Magistrate has completed all the legal formalities while recording the statements under section 164, Cr.P.C. Three accused were called in chamber, given warning and reflection time and thereafter their confession was recorded and it cannot be said that the same were tutored. The signatures of accused Wasim and Javaid were obtained. On the last page only. No question was put or confronted to Magistrate that how and why signatures were obtained of accused Wasim on second page of confession of Jawed. The accused may have manipulated to sign it. He further contended that when the accused were brought they were produced in Court, confession was recorded in chamber whereas the co- accused were in Court, there is verandah in between the Court and chamber, therefore, one could not hear what was being stated by the accused . In chamber in their statement under section 164, Cr.P.C. Learned A.A.-G. Further contended that the very next day of occurrence the finger prints were preserved by PW-11 which were compared by PW-6 while the impressions of accused persons were obtained by SIP Mumraiz. PW-14 produced report of thumb impression, memo etc. But no question about these documents was asked by learned Defence counsel and the same goes unchallenged. Learned counsel further contended that even retracted confession, without corroboration, is sufficient for conviction. He further contended that it is a settled principle of law laid down by the apex Court that the administrative lapse on the part of Magistrate in recording confession can be ignored and the same is not fatal to the prosecution case so also the delay of four days in recording the same. He further contended that no one would make any admission against his/her own interest unless the same was true as in the instant case is where the appellants have recorded their confessional statements. Learned AAG further contended that inculpatory statements are also receivable under Article .40 of Qanun-e-Shahadat Order as the section itself says "whether the statement amounts to a confession or not. He further contended that -the statement of accused during the investigation is admissible in evidence by virtue of section 27 of the Evidence Act. Learned AAG further contended that the abetment also includes "help and facilitate" and thus all the appellants have rightly been convicted. He also contends that all the appellants including accused Wasim entered in the place of incident at 7 A.M. As stated by them in their confessional statements recorded under section 164, Cr.P.C. In support of his contentions he placed reliance on:-- ' PLD 1991 SC 923 1992 SCMR 1983 PLD 2006 SC 219 PLD 1960 SC 313 PLD 2007 SC 202 1972 SCMR 363 AIR 1958 SC 1958 AIR 1973 SC 264 AIR 1963 SC 1094 AIR 1966 SC 40 2002 SCMR 1173 2000 SCMR 1969 PLD 1984 FSC 55
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15. We have heard the arguments of all the learned counsel appearing for the appellants and so also learned Assistant Advocate General and with their assistance have carefully examined the material available on record. 16. From the above contentions of the learned counsel it appears that the learned counsel have based their arguments mainly on Confessional statements of the appellants. 17. It is an admitted position that the confession, as recorded, is partly inclupatory and partly exculpatory. The question arises is whether on the basis of such statement conviction can be awarded. We have perused the material available on record. There are admissions and confessions of the appellants on record, one recorded before the police and the other before the Magistrate under section 164, Cr.P.C. It appears that the appellants have in their statements before the police have admitted to have committed the murder but while recording the statements before the Magistrate they all have shifted the burden as to murder to each other while admitting the robbery. In fact the circumstances, as enumerated, were totally against them and they were quite unable to prove that they were not present in the house in question as such they had no choice but to admit the robbery and shift the burden as to murder to other. Indeed, in our humble view no one would make any admission against his own interest unless the same was true. But, since this truth was to follow very serious consequences the appellants backed out from the same. Even otherwise, in our view the appellants have failed to prove that there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false hence the appellants cannot take advantage of the same. The case law relied upon by the learned counsel for the appellants on this, score are thus not applicable to the present case as the prosecution has been able to adduce sufficient evidence bearing on the guilt of the appellants other than the confession. As regards the case reported in AIR 1852 SC 343(354), the same does not pertain to a confessional statement made before a Magistrate in a murder case hence its facts are quite distinguishable from the present case. 18. The plea that retracted judicial confession cannot be made the basis of conviction is also not supportive to the appellants in the facts and circumstances of the instant case. The basic principle behind this presumption is that the Court has to see firstly whether the accused has been able to prove that the confession was tutored and recorded under some duress or inducement and secondly the same is corroborated by other evidence. In the instant case in the impugned judgment the learned trial Court has discussed this aspect of the matter very elaborately. Appellant Asma Nawab in her confessional statement has pointed out where the dead bodies were lying. The same is corroborated by other appellants in their confessional statement. Appellant Asma Nawab admitted that she had illicit relations with appellant Farhan with whom she had also met in privacy, the same has also been admitted by appellant Farhan and is corroborated by appellant Jawed and Wasim and so also the medical evidence proves that appellant Asma Nawab is not virgin. All the appellants have admitted the crime weapon to be two Churries, which were recovered on the pointation of appellant Jawed from a place which was stated by them in their statements. Appellant Farhan was also taken to the place of recovery, who pointed out the same place from where the recovery was effected. The places where the same were lying were in their exclusive knowledge. Availability of finger prints of appellant Farhan on Almirah also corroborates the fact, which appellants have stated in their confessional statements, that they have taken the robbed items from the Almirah. All the…
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