Full Judgment Text & Judicial Ruling

2018 P Cr. L J Note 127 [Peshawar] Before Lal Jan Khattak and Qalandar Ali Khan, JJ AZMATULLAH and another---Appellants Versus The STATE through Advocate-General, Khyber Pakhtunkhwa and another---Respondents Criminal Appeal No. 204-P of 2015, decided on 8th November, 2017. Penal Code (XLV of 1860)--- ----Ss. 302, 365-A, 392, 386, 201, 412 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(A)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., robbery, extortion by putting a person in fear of death or grievous hurt, causing disappearance of evidence of offence, or giving false information to screen offender, dishonesty receiving property stolen in the commission of dacoity, common intention, act of terrorism---Appreciation of evidence---Judicial confession---Scope---Accused persons were charged for the kidnapping of deceased for extorting his car and thereafter murdering him and dumping his dead body---Present case was a case of blind murder---Prosecution through circumstantial evidence, had established links of chain starting from abduction of deceased, his qatl-i-amd by the accused and then taking away all the belongings of the deceased---Record showed that dead body of the deceased was recovered from the dry well situated in the poultry farm of accused---Said accused persons in their confessional statements before the Judicial Magistrate furnished graphic details of abduction of the deceased and his murder, which had proved the case of prosecution beyond any shadow of doubt---Record transpired that seventeen witnesses were produced by the prosecution in the present case including the complainant, brother and son of deceased, Judicial Magistrate, Medical Officer, recovery witnesses, Taxi driver/witness and Investigating Officers---Said witnesses remained consistent and confidence inspiring, fully corroborated the sequence of events in material details and were not shattered during lengthy cross-examination by the defence---Coherent statements of prosecution witnesses left no doubt about abduction of the deceased by both the accused and his cold blooded murder in a ruthless and callous manner by the accused---Weapon of offence, .30-bore pistol recovered from the house of accused on his pointation, further corroborated by the Postmortem report, showed one entry wound with corresponding exit wound on the head of the deceased---In the given circumstances, no role of co-accused was discernable either in the abduction of the deceased or of his qatl-i-amd---Role assigned to the said co-accused was that of his relations with other co-accused, and having in his possession the cell phone of deceased---Said co-accused stated in his confessional statement that cell phone was handed over to him by other co-accused, during his stay for a night with him---Said co-accused, however, denied any knowledge of the occurrence or even of the fact that the mobile was stolen property, in his exculpatory confessional statement, which could not be used against him after the same had been retracted by him in his statement recorded under S. 342, Cr.P.C.---In the absence of any incriminating evidence against the said co-accused, his appeal was accepted and he was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court---Case of abduction under S. 365-A, P.P.C. against the accused and his co-accused had not only been established from the evidence available on record but also from confessional statements of both the accused---Said two accused had shared the common intention of abduction of the deceased for the purpose of extorting property from him, which was executed by co-accused, by hiring the taxi car and had taken the same to the poultry farm of the accused, where qatl-i-amd of deceased took place at the hands of owner of the poultry farm/accused---Postmortem report of the deceased showed that only one firearm wound on the head of the deceased was caused by the accused with his 30-bore pistol, when the deceased showed resistance to the demand of the accused to hand over keys of the motorcar to him---In such state of affairs, it appeared that murder of the deceased was an individual act of accused, because both the accused shared common intention only to the extent of abduction of the deceased for extorting property from him---Both the said accused were rightly held guilty and convicted for abduction under S. 365-A, P.P.C. and awarded the punishment of imprisonment for life which was maintained and appeal of both the accused to that extent was dismissed in the circumstances---Recovery of pistol .30-bore, in working condition, from the house of accused, would substantiate the case of prosecution with regard to the role of only accused in the commission of offence of qatl-i-amd of deceased---No active role of co-accused had been proved on record in the qatl-i-amd of deceased, therefore, appeal was partly accepted to the extent of co-accused and he was acquitted of the charge of qatl-i-amd under S. 302, P.P.C. and under S. 7-(a), Anti-Terrorism Act, 1997, by setting aside the conviction and sentence recorded by the Trial Court to that extent only---However, prosecution had proved its case against the accused for the commission of offence of qatl-i-amd of deceased---Appeal of accused was therefore dismissed in circumstances. [Paras. 9, 10, 11 & 12 of the judgment] Muhammad Ismail Khalil for Appellants. Syed Sikandar Hayat Shah, A.A.-G. assisted by Syed Abdul Fayaz and Bashir Ahmed for the State. Date of hearing: 8th November, 2017. JUDGMENT QALANDAR ALI KHAN, J.---This single judgment is directed to also dispose of Murder Reference No.7/2015, Criminal Appeal No.193-P/2015 by Muhammad Saeed Khan and Criminal Revision No.46-P/2015 by Sangeen Khan, complainant/petitioner, for enhancement of sentence of life imprisonment awarded to Muhammad Saeed, respondent No.3 (wrongly mentioned in the Criminal Revision as respondent No.1) to that of death penalty; as the instant Death Appeal by the convicts/appellants, Azmatullah and Hukman Shah, Murder Reference No.7/2015, Criminal Appeal No.193-P/2015 by Muhammad Saeed Khan, appellant, and Criminal Revision Petition No.46-P/2015 by Sangeen Khan, complainant/petitioner, arise out of the same case vide FIR No.568 dated 05.12.2013 under sections 365-A/302/382/412/34, P.P.C. and 13, A.O, Police Station West Cantt. (Gharbi) Peshawar. 2. Facts of the case, briefly stated, are that when Taxi Car XLI No.RT-699/Islamabad of the complainant, Sangeen Khan hired by unknown person from Peshawar Airport to Tall at 11 hours on 09.11.2013 was not returned by the driver, namely, Musharraf son of Bakht Jamal aged about 55 years, resident of Sarband, Peshawar, the complainant reported the matter to the local police of West Cantt. and his report was incorporated in the Daily Diary of the P.S at Sr. No.18 dated 11.11.2013; leading to inquiry under section 156(3), Cr.P.C., during which, brother of driver Musharraf, namely, Gulzar, son of Bakht Jamal, resident of Sarband, recorded statement under section 161, Cr.P.C. and alleged kidnapping for ransom of his brother/driver, Musharraf, and the motorcar by unknown person and confinement of his brother and the motorcar at unknown place. Consequent upon the inquiry, initially, case/FIR was registered under section 365-A, P.P.C. in Police Station West Cantt. (Gharbi), Peshawar, vide FIR No.568 dated 05.12.2013. Earlier, the complainant had reported in the P.S at 1015 hours on 11.11.2013, which was recorded in the Daily Diary of the P.S at Sr.No.18 dated 11.11.2013, about receiving no response from his driver, Musharraf, after the driver had informed him about hiring of the Taxi Car, and on one occasion attending of mobile phone of his driver by another person who stated about his location as Batkhela and also informed him about the driver becoming unconscious after an accident. According to the complainant, the driver was located going towards Tall City, but, thereafter, his cell phone was found switched off. The complainant suspected confinement of driver along with motorcar in Tall City. 3. During investigation, accused-appellants, Azmat Ullah son of Sher Zaman and Muhammad Saeed son of Shahid, were arrested on 07.12.2013, and accused/appellant, Hukman Shah, was arrested on 11.12.2013. At the time of their arrest, cell phones were recovered from all the three accused/appellants. After their arrest, on the pointation of accused/appellants, Azmat Ullah and Hukman Shah, the decomposed dead body of deceased Musharraf was recovered from the dry well of Poultry Farm of accused/appellant, Azmatullah in the presence of DHO Hangu and Mr. Muhammad Mushtaq, Judicial Magistrate-II, Hangu, who certified the proceedings conducted in his presence. The autopsy on the dead body of the deceased on 11.12.2013 by the Medical Officer revealed 1 entry wound at left eye about 2 x 3 cm, with corresponding exit wound at lower part of occipital (posterior) about 3 x 4 cm. The Medical Officer furnished opinion regarding time between injury and death as 10-30 minutes (approximately) and between death and P.M as 20-30 days (approximately); and reported cause of death as "cardio pulmonary arrest due to perforated injury of skull and brain (vital organs) by the FAI". It is, indeed, note worthy that at the time of recovery of dead body of deceased Musharraf, the dead body of another driver, whose Taxi Car was hired in the like manner from Islamabad Airport, was also found dumped in the same dry well of the poultry farm of accused/appellant Azmat Ullah. In that respect, another case was also registered in Police Station Doaba, Hangu, vide FIR No.581 dated 11.12.2013 under sections 302/412/386/392/201/34, P.P.C. 4. On 11.12.2013, the I.O prepared two site plans (EX:PW12/2 and EX:PW12/3), respectively showing the poultry Farm of accused/appellant, Azmat Ullah, where the abducted Taxi Driver was shot dead and his dead body dumped in a dry well, and also house of the same accused/appellant, Azmat Ullah, situated in village Darsamand, wherefrom the weapon of offence i.e. a .30 bore pistol No.31304517 along with magazine loaded with five rounds of .30 bore was recovered on the pointation of the accused/appellant, Azmat Ullah. The I.O also prepared site plan of the Airport on the pointation of accused/appellant, Hukman Shah, showing the place wherefrom the Taxi Motorcar was hired for Darsamand on payment of Rs.5000/- 5. The accused/appellants recorded their confessional statements in the aforementioned case as well on 23.12.2013, wherein, they both re-affirmed their confessional statements in this case recorded before the learned Judicial Magistrate 1st Class-II, Peshawar on 14.12.2013, wherein, they had narrated the story of hiring the Taxi Car from Peshawar Airport by Hukman Shah and taking the same to the Poultry Farm of accused/appellant, Azmat Ullah, where the deceased driver of the Taxi Car, Musharraf, was shot dead by accused/appellant, Azmat Ullah, when the deceased resisted to handing over of keys of the car to the accused/appellants. They also furnished graphic details of dumping the dead body in a dry well in the poultry Farm which was covered by them with stones and mud and also taking away cash amount of Rs.18000/-, CNIC and other papers along with a Nokia Cell Phone from the dead body, and also selling the vehicle to Riaz resident of Sadu-Khel for sale price of Rs.3,70,000/-; which was distributed in equal share, by both the accused/appellants. In their confessional statements, both the accused/appellants, also disclosed murder of another driver of the Taxi Car and selling of that car for Rs.1,90,000/- to Riaz, and dumping of dead body of that deceased driver earlier in the same dry well in the poultry Farm. The confessional statement of accused/appellant, Muhammad Saeed, was also recorded by the same learned Judicial Magistrate, Peshawar, on 14.12.2013, wherein, the accused/appellant, who was a student of 4th Semester in BS Commerce, Qaid-e-Azam Department, and had friendship with accused/appellant, Hukman Shah, stated about staying of the accused/appellant with him for a night, and their exchanging cell phones with each other, and use of cell phone of accused/appellant, Hukman Shah, by him, having no knowledge that the cell phone was a stolen property. The I.O also got recorded statements under section 164, Cr.P.C. of complainant, Sangeen, on 23.12.2013, and that of Gulzar son of Bakht Jamal, on 28.12.2013. The I.O further got recorded statement of son of deceased Musharraf, namely, Shabbir Ahmed under section 164, Cr.P.C. on 28.12.2013. All the said three PWs charged the accused/appellants for commission of the offences. After collection of the evidence and completion of investigation, complete challan was submitted to the trial Court/Judge, Anti-Terrorism Court-I, Peshawar, who entrusted the case to learned Judge Anti-Terrorism Court-III, Peshawar, where all the three accused were charged, firstly, under sections 365-A/34, P.P.C., secondly, under sections 382/412/34, P.P.C., thirdly, under sections 302/34, P.P.C.; and accused/appellant, Azmat Ullah, additionally under section 15 AA KPK. The accused/appellants pleaded not guilty to the charges and claimed trial. During trial, the prosecution produced as many as 17 PWs, as under: Inspector Tauheed (PW1) arrested all the three accused and effected recoveries from them, mentioned in the recovery memos; Khalid Khan SI (PW2) is marginal witness to the recovery memos EXPW1/3 and EXPW1/5; Hassan Zamir SI Investigation (PW3) is witness to the sketch prepared by the I.O on the pointation of accused Hukman Shah, and also received report of FSL (EXPW3/1); Anees-ud-Din (PW4) is witness to hiring of the Taxi Car by accused/appellant, Hukman Shah; Fazal Diyan, Muharrir (PW5) is witness to the recovery memo whereby garments of the deceased were taken into possession by the I.O. He is also marginal witness to the taking into possession of mobile set with Sims by the I.O from complainant, Sangeen Khan; Gul Wali S.I (PW6) submitted challan in the case; Muhammad Ajmal ASI (PW7) conducted inquiry in the case under section 156(3), Cr.P.C.; Shah Sharraf Khan (PW.8) is marginal witness to the recovery memo with respect to taking into possession of the Motorcar by the I.O; Sangeen Khan (PW.9) is owner of the Motorcar and is also complainant in the case who had lodged initial report in the P.S; Gulzar (PW.10) is brother of the deceased and recorded his statement and charged the accused/appellants; Shabbir Ahmed (PW.11), is son of the deceased, Musharraf, and charged the accused/appellants for commission of the offences; Fazl-e-Mula Khan DSP (PW.12) was entrusted investigation of the case and he accordingly conducted investigation in the case; Shoukat Ahmed Khan, Senior Civil Judge (PW13) recorded confessional statements of all the three accused/appellants; Muhammad Mushtaq Khan, Judicial Magistrate, (PW14) supervised recovery of dead body of the deceased, Musharraf, and also another dead body of deceased Fazal Rehman, from a dry well situated in the Poultry Farm of accused/appellant, Azmat Ullah; Dr. Qasim Gul M.O (PW.15) conducted autopsy on the dead body of deceased Musharraf; Saeed Khan DSP (PW.16) is marginal witness to the recovery of dead body from the dry well on the pointation of the accused/appellants; and Sabir Khan Inspector (PW.17) was also entrusted investigation in the case on 05.12.2013. 6. After prosecution closed its evidence, statements of all the three accused/appellants were recorded under section 342, Cr.P.C. In their statements, they refuted allegations of the prosecution, but declined to be examined on oath or produce defence evidence; followed by arguments before the learned trial Court/Judge, ATC-III, Peshawar, by learned PP and learned counsel for the accused/appellants; and impugned judgment dated 21.03.2015, whereby, all the three accused/appellants were convicted under section 365-A, P.P.C. and awarded Rigorous Imprisonment for life; accused/appellants, Azmat Ullah and Hukman Shah, was also convicted under section 302, P.P.C. read with section 7(a), A.T.A., 1997 and awarded punishment of death and fine of Rs.300000/- each, payable to legal heirs of the deceased and in default of payment of fine to further two years imprisonment; and the said two accused/appellants were further convicted under section 382, P.P.C. and awarded the punishment of R.I for ten years and fine of Rs.50,000/- each and in default to R.I for six months; while accused/appellant, Azmat Ullah, was also convicted under section 15-AA and awarded punishment of three years S.I. All the sentences (Imprisonments) were ordered to run concurrently, and benefit of section 382-B, Cr.P.C. was also extended to the accused/appellants. Simultaneously, vide the same impugned order dated 21.03.2015, the learned trial Court/Judge ATC-III, Peshawar, declared absconding accused, Riaz, as a proclaimed offender and issued perpetual warrant of arrest against him. Hence separate criminal appeals by the accused/appellants, Murder Reference forwarded to this Court by the learned trial Court and Revision Petition by the complainant for enhancement of punishment of imprisonment for life of accused/appellant, Muhammad Saeed to that of death. 7. Arguments of learned counsel for the appellants and learned AAG assisted by learned counsel for the complainant heard; and record perused. 8. The case of loss of contact with his Taxi driver, namely, Musharraf son of Bakht Jamal on 09.11.2013, reported to the local police of P.S West Cantt: (Gharbi), Peshawar, by owner of the Taxi Car/complainant, Sangeen Khan, at 1015 hours on 11.11.2013 and recorded in the Daily Diary of even date at Sr. No.18, was initially inquired into under section 156(3), Cr.P.C.; after which, the local police reached to the conclusion that driver, Musharraf, was kidnapped for ransom; and report of the daily diary was, therefore, converted into FIR No.568 dated 05.12.2013 under section 365-A, P.P.C. In his report, recorded in the daily diary of the P.S, the complainant had reported hiring of his Taxi Car by a passenger to a destination, which was located as Tall City. Following the clue furnished by the complainant, the local police arrested the accused/appellants, during investigation, after registration of the case, and recovered dead body of the driver from a dry well in the poultry Farm of accused/appellant, Azmat Ullah, on his pointation as well as on the pointation of co-accused, Hukman Shah. They both also recorded their confessional statements, narrating therein the story of hiring of the Taxi Car by the accused/appellant, Hukman Shah, from Peshawar Airport for Darsamand and taking the Taxi Car along with driver to the Poultry Farm of accused/appellant, Azmat Ullah, situated in village Darsamand, and also the fact of accused/appellant, Azmatullah, effectively firing and causing death of the driver when the deceased driver showed resistance to the demand of the accused to hand over keys of the Motorcar to them. They also disclosed the factum of throwing/dumping the dead body in a dry well situated in the said Poultry Farm, and covering the well with stones and mud. The decomposed dead body of deceased Musharraf, was recovered from the said dry well on the pointation of both the accused/appellants in the presence of DHO Hangu as well as learned Judicial Magistrate Hangu. At the time of recovery of dead body of the deceased, Musharraf, another dead body of a Taxi driver shot dead and also thrown/dumped in the said dry well in similar circumstances, was also recovered, and both the accused/appellants separately recorded their confessional statements before another learned Judicial Magistrate in the case registered relating to that abduction and murder vide FIR No.581 dated 11.12.2013 under sections 302/412/386/392/201/34, P.P.C. Police Station Doaba. The weapon of offence i.e. .30 bore pistol was also recovered from the house of accused/appellant, Azmat Ullah, on his pointation, which was declared in working condition by the Firearms expert. As such, the prosecution was able, with painstaking and laudable efforts on the part of the investigating agency, to build up an edifice of its case against the accused/appellants, Azmatullah and Hukman Shah, right from the very beginning starting from report of the complainant, Sangeen Khan, recovery of the dead body of deceased, Musharraf, from a dry well in the Poultry Farm of accused/appellant, Azmatullah, situated far away from Peshawar in village Darsamand, augmented by confessional statements of the accused/appellants, recovery of another dead body from the same well in the Poultry Farm of the accused/appellant, shot dead in the same way after his abduction along with Taxi Car from Islamabad Airport, and confessional statements of both the accused/appellants in that case as well, before another Judicial Magistrate, who was also present along with DHO Hangu at the time of recovery of both the dead bodies of drivers of Taxi Cars, who were shot dead by accused/appellant, Azmatullah, after they showed resistance, and were thrown/dumped in the like manner in the dry well situated in the Poultry Farm of the accused/appellant. The recovery of weapon of offence i.e. .30 bore pistol from the house of accused/appellant, Azmatullah, on his pointation further substantiated has already established main role in the commission of the offences, particularly Qatl-i-amd of deceased driver, Musharraf. 9. In short, a case of blind murder, not witnessed by anyone with his own eyes, was proved by the prosecution through circumstantial evidence, establishing links of chain of events starting from abduction of the Taxi driver, Musharraf, from Peshawar Airport and his Qatl-i-amd by the accused/appellant, Azmatullah, in his Poultry Farm situated for away from Peshawar at Darsamand, and then taking away all the belongings of the deceased including cash amount and cell phone and other documents, and throwing/dumping the dead body in a dry well in the Poultry Farm by both the accused/appellants. The recovery of dead body from the dry well situated in the Poultry Farm of accused/appellant, Azmatullah, on his pointation as well as on the pointation of co-accused, Hukman Shah, and their confessional statements whereby they furnished graphic details of abduction of the deceased and his murder proved case of the prosecution beyond any shadow of doubt, of course, in the light of statements of 17 PWs produced by the prosecution, including, the complainant, brother and son of the deceased, both the learned Judicial Magistrates, Medical officer, witnesses to the recovery memos, a Taxi driver at Peshawar Airport and investigating officers in the case, which remained consistent and confidence inspiring, fully corroborating sequence of events in material details, and not shattered during lengthy cross-examination by the defence. Their coherent statements left no doubt about abduction of the poor taxi driver by both the accused/appellants, Azmatullah and Hukman Shah, and his cold blooded murder in a ruthless and callous manner by the accused/appellant, who had also enacted an unfortunate tragedy of the same kind in the past, without any remorse/penitence. The inhuman conduct of both the accused/appellants deserve no leniency, especially when one of them is owner of a Poultry Farm and he, with the connivance of his co-accused, would touch the abysmal of human conduct by first kidnapping poor taxi drivers and then committing their qatl-i-amd in a cruel and dreadful manner. In the circumstances, the learned trial Court/Judge, Anti-Terrorism Court, had no other choice but to hold both the accused/appellants guilty of commission of offences. 10. In the absence of ocular account, the case of the prosecution admittedly rested on confessional statements of the accused/appellants, further corroborated by recovery of the dead body from the place belonging to accused/appellant, Azmatullah, on his pointation as well as on the pointation of co-accused/appellant, Hukman Shah, and also recovery of weapon of offence i.e. .30 bore pistol from the house of accused/appellant, Azmatullah, on his pointation, further corroborated by the P.M report showing 1 entry wound with corresponding exit wound on the head of the deceased. In the given circumstances, no role of accused/appellant, Muhammad Saeed Khan, is discernable either in the abduction of the deceased or his qatl-i-amd. The only role assigned to accused/appellant, Muhammad Saeed Khan, was that of his relations with accused/appellant, Hukman Shah, and having in his possession the cell phone of deceased, Musharraf, which, according to his confessional statement was handed over to him by accused/appellant, Hukman Shah, during his stay for a night with him. The accused/appellant, Muhammad Saeed…

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