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Petitioner: NASEEM AKHTAR Alias JALEES And Another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed, Hamid Ali Mirza Title: NASEEM AKHTAR Alias JALEES And Another vs THE STATE Case No.: Criminal Appeal No. 193 of 1994 Date of Judgment:1997-12-17 Reported As: K.L.R. 1999 Criminal Cases 256 Result: N/A
JUDGMENT
JUDGMENT HAMID ALI MIRZA, J.- This is an appeal under section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, read with section 410 Cr.P.C, directed against the judgment of conviction dated 6.12.1994 passed by learned Special Judge Court-I (Suppression of Terrorist Activities) at Karachi, in a case State v. Naseem Akhtar and another, Special Case No. 47 of 1994, FIR No.286/1994, P.S. Gulberg, Karachi, registered under Sections 364-A/365- A/302/34 PPC, whereby appellants have been convicted under sections 365-A and 302/34 PPC and have been sentenced to death and their entire property is ordered to be forfeited to the Government and to pay fine of Rs. 50,000/- each and in case of recovery of fine,, it shall be paid to legal heirs of deceased and in case of default in payment of fine, they shall further suffer three years' rigorous imprisonment. 2. The prosecution case is that the minor Anas Farid son of Fariduddin was found missing who had gone to play outside his house on 19.7.1994. After making search for the said minor by, further of the said minor named above lodged report on the same day, at about 2040 hours at Gulberg Police Station, Karachi, which was entered into the daily diary report No. 92 of P.S. Gulberg stating therein that his son Anas Farid aged nine years, height three and quarter ft. In built, wheat complexion and brown eyes, wearing white T. Shirt, red and white coloured naker (short pant) and magazine made Chappal, went out of the house for playing game between.4 and 5 p.m., search was made by his relations and friends but no clue was found. On 21.7.1994 at 2030 hours PW-3 (Ex.5) Sohail Raees Siddiqui lodged FIR No. 286/1994 (Ex. Ll/A) at P.S. Gulberg Karachi stating therein that "on 19.7.1994 his maternal brother Anas Farid son of Fariduddin Siddiqui, aged nine years, fair colour, lean, height three feet, could speak Urdu, went out of his house for playing game at about 4 p.m. But did not
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return, at that time, he was wearing white T. Shirt,, red and white naker (short pant) and his report was lodged by Fariduddin Siddiqui at P.S. Gulberg, search was made but his clue could not be found but today viz. 21.7.1994 at 5 p.m., one unknown person informed on telephone that the said minor by was with him and on further enquiry he told that he would give the details on that night or on the next day. The informant/complainant further stated that he suspected that unknown accused persons have abducted his maternal brother Anas Farid with intention to commit unknown crime, report is lodged, action be taken." 3. PW-9 Abdul Rashid Ex. 19-was posted as SHO P.S. Gulberg on 19.7.1994. On the said day at about 2040 hours, father of Anas Farid namely Fariduddin Siddiqui came to P.S. And lodged the missing report of his son Anas Farid when Ghulam Rasool was duty officer who recorded the statement of Fariduddin Siddiqui vide Entry No. 92, Ex. 19-A. On 21.T. 1994, father of Anas Farid received telephone call from the accused persons that his son was in their. Custody and he should wait for the next call, consequently, he informed the police on telephone. PW 9 Abdul Rasheed deputed ASI Muhammad Fayyaz to contact the father of Anas Farid at his house and take necessary legal action who thereafter recorded the statement of Sohail Raees Siddiqui under section 154 Cr.P.C. (Ex.5- A) which was subsequently incorporated in 154 Cr.P.C, book as FIR. PW-9 after receipt of FIR (Ex. 11-A) visited the house of PW-3 Sohail Raees Siddiqui and confirmed his statement Ex.5/A. PW-9 prepared memo, of inspection of Wardat (Ex.5/B) in presence of mashirs Fariduddin Siddiqui and Moizuddin. On 6.8.1994 PW-9 received a spy information that the culprits would arrive near Ziauddin Hospital for making call for demand of ransom money at about 1930 hours when the appellant/accused Muhammad Khalid appeared at Noor Medical Store, the informant point out to PW-9, the appellant/accused Muhammad Khaild, who used to call on telephone and demand ransom money from the father of kidnapped by when the said appellant was apprehended by PW-9, such Memo. (Ex. 10/A) was prepared in presence of mashirs Syed Mansoor Hussain Nadeem, Siraj Abdullah and PW-6 Muhammad Jahangir Khan and said appellant after his arrest started weeping and said that due to temptation of money he had killed Anas Farid with the help of appellant/accused Naseem Akhtar alias Jalees. PW-9 alongwith police party proceeded from there to the house of appellant/co-accused Naseem Akhtar alias Jalees and at the Plantation of appellant/accused Muhammad Khalid reached there, who knocked the door of appellant/accused Naseem Akhtar's house who came out on hearing the call of co- accused appellant Muhammad Khalid and was arrested and such Memo, of arrest (Ex. 10/B) was prepared in presence of same mashirs. PW-9 alongwith appellants/accused and the police party proceeded to PS Gulberg where the appellants/accused were interrogated by the police when the appellants/accused stated that they were ready to show the place where the dead-body of Anas Farid was lying and they led police party to the house of Fariduddin Siddiqui, father of deceased Anas Farid and then after taking him and others, the appellants/accused led them to an under construction house at Surjani Town, on reaching there they got down from their vehicles when the appellants/accused led them to a place which was under constructed house and showed the dead-body lying in a room which was identified by the father of the deceased by and the mashirs who were related to deceased and the complainant. PW-9 prepared memo, of Plantation of place of occurrence and examination of dead-body (Ex.5/C) in presence of mashirs Fariduddin Siddiqui, Sohail Rasheed and Moizuddin. PW-9 also held inquest upon the dead-body of deceased and prepared such report Ex.5/D in presence of same mashirs. PW-9 on further interrogation from the appellants/accused when he disclosed where the handkerchief which was used by them to strangulate the deceased by was, and they. Volunteered to produce the said handkerchief and led the police party alongwith others to nearby bushes, from where produced handkerchief, Article 'B'
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and such Memo. (Ex.6/B) of securing handkerchief was prepared in presence of mashirs It. Khurram Qamar and Siraj Abdullah and Memo. (Ex.6/A) regarding identification of clothes and chappal worn by deceased Anas Farid was also prepared in presence of same mashirs. PW 9 then sent the dead-body of deceased Anas Farid to Abbasi Shaheed Hospital for post-mortem examination and report by Edhi Ambulance followed by one police mobile and the appellant/accused were sent to Police Station through mobile. On 7.8.1994 PW.9 went to Abbasi Shaheed Hospital in order to obtain the report in respect of cause of death, for which he gave such letter to the doctor who made such endorsement on the said letter (Ex.13/C). On 8.8.1994 appellants/accused volunteered to produce the Motor Cycle when the appellants/accused first led the police party to a place from where deceased by was picked up and such memo. Ex.1O/D was prepared in presence of mashirs Siraj Abdullah and Muhammad Jehangir. On the same day, i.e. 8.8.1994 at 1915 hours Fariduddin PW-10 produced audio cassette Article. 'A' before the PW-9 who secured the same and prepared such seizure memo. (Ex.5/E) in presence of mashirs, Sohail Rasheed and It. Khurram and then the appellants/accused led the policy party to a house No. R- 612, Block-17, Federal B' Area, Karachi, belonging to appellant/accused Muhammad Khalid from where one black coloured 120 CC Motorcycle bearing No. KCL-6395, Model 1979, Article-G, on which kidnapped by was said to have been taken to under construction house of Rukun Din and Company in Surjani Town, where the by was killed by them, was secured and seized at his Plantation in presence of mashirs Siraj Abdullah and Muhammad Jahangir, police prepared such memo. (Ex. 10/C) of seizure of Motorcycle. On 18.8.1994, the appellants/accused were sent to ACM by PW-9 for the purpose of recording their confessions and also 164 Cr.P.C, statement by PW Anwar. PW-9 issued separate notices Exts.13/D and 13/E to the appellants/accused informing them for recording of their confessions. Statement of PW Muhammad Anwar under section 164 Cr.P.C, was recorded as Ex.3/B and confessional statements of appellant/accused were recorded as Exts.3/C and 3/D by the same Magistrate. PW-9 also recorded the statements of above PWs. Under section 161 Cr.P.C, as well as sent clothes and remains of visceras of deceased to chemical examiner for examination and report. After completion of the usual investigation, the appellants/accused were challaned before the trial Court. 4. Before the trial Court prosecution examined nine witnesses. PW-1 Muhammad Ebrahim Qureshi (Ex.3) ACM Central Karachi who recorded 164 Cr.P.C, statement (Ex.3/B) of PW Muhammad Anwar to whom a letter dated 15.8.1994 (Ex.3/A) of SHO P.S. Gulberg was sent for recording 164 Cr.P.C, statement (Ex.3/B) of PW Muhammad Anwar and for recording confessional statement of appellant/accused Naseem Akhtar alias Jalees (Ex.3/C) and confessional statement of appellant/accused Muhammad Khalid /Ex.3/D). PW-2 Muhammad Anwar (Ex.4) who had given motorcycle to appellant/accused Khalid, PW-3 Sohail Raees Siddiqui (Ex.5) whose statement under 154 Cr.P.C. (Ex.5/A) was recorded and in whose presence memo, of inspection of Wardat (Ex.5/B) memo, of Plantation of place of incident and inspection of dead-body were prepared (Ex.5/C) so also inquest was held upon dead-body as per report (Ex.5/D) and Memo, of seizure of audio cassettes (Ex.5/E) was prepared. PW-4 Khurram Qamar (Ex.6) in whose presence Memo, of identification of clothes and chappal (Ex.6/A) of deceased was prepared so also seizure Memo, of recovery of handkerchief (Ex.6/B) PW Moizuddin was given up as per Ex.7, PW-5 Dr. Syed Saeed Haider {Ex.8) who conducted post-mortem examination (Ex.8/A) upon dead-body of deceased Anas Farid son of Fariduddin Siddiqui and also issued supplementary medico-legal report dated 7.8.1994 (Ex.8/B), PW-6 Muhammad Jahangir is the mashir of memo of arrest of appellant Muhammad Khalid (Ex. 10/A) and of appellant/accused Naseem Akhtar (Ex. 10/B) and of seizure of motor-bike (Ex. 10/C) and of Memo, of place from where deceased by was kidnapped (Ex.1O/D), PW 7 Fariduddin Siddiqui father of deceased Anas Farid
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lodged the initial report (Ex.13/B) about the missing of his son. He is also mashir of inspection of place of Wardat (Ex.5/B) and of memo, of Plantation of place of incident and inspection of dead- body (Ex.5/C) and of inquest report (Ex.5/D) and he produced audio cassette (Ex.5/E) Article A'. PW- 8 Muhammad Fayyaz is ASI of P.S. Gulberg who recorded statement (Ex.5/A) under section 154 CnP. C. Of Sohail Raees which was subsequently incorporated in 154 Cr.P.C, book as FIR (Ex. 11/A), PWs. Siraj Abdullah, Syed Mansoor and ASI Ghulam Rasool were given up as being not necessary witnesses as per (Ex. 12), charge was amended as per Ex. 13, Statements Exts. 14 and 15 are of the learned counsel of the appellants/accused and of the special prosecutor in respect of not recalling PWs. After the amendment of charge. Ex. I6 is amended charge. Exts. 17 and 18 are the pleas of the appellants/accused pleading not guilty to the charged offences. PW-9 Abdul Rasheed is the SHO and I.O. Of the case who conducted the investigation as said above. Prosecution closed its Side as per Ex.20. Appellants/accused were examined under section 342 Cr.P.C, as per Exts.21 and 22 wherein they denied the commission of charged offences and stated that they were innocent and were falsely implicated in the case and the confessions recorded were obtained under duress. 5. The contentions of learned counsel for appellants is that the trial Court has erred in convicting the appellants on the basis of evidence v/z:-(i) retracted extra-judicial confession; (ii) retracted judicial confession; (iii) evidence of pointing out the place from where dead-body of deceased Anas Farid was found; (iv) pointing out the place from where handkerchief with which the deceased by was allegedly strangulated was recovered, on the grounds that the said evidence of confessional statements being in contravention of provisions of Articles 37, 38, 39 of Qanoon-e- Shahadat, the alleged recoveries being jointly made could not be used against the appellants/accused under the law, the appellants' confinement after 11.8.1994 till 18.8.1994 was wrongful as it was without remand and the judicial confessions being contradictory and having been recorded after 12 days could not be said to be voluntary and true and the evidence of audio cassette was of no evidentiary value as audio cassette was of no evidentiary value as no expert was examined and there was no direct and cogent evidence convicting the appellants with commission of crime. Learned counsel for appellants submitted that letter for recording the confession is dated 16.8.1994 while the confession was recorded on 18.8.1994, there has been no second warning before recording the confessions, the appellants/accused were arrested on 6.8.1994, they were produced for remand on 11.8.1994 and the confessions were recorded on 18.8.1994 therefore also confessions so recorded could not be said to be voluntary and true. He contended that judicial confession of Naseem Akhtar Ex.3/C stated that: "We both together throttled/strangulated the deceased for half an hour till we were satisfied that he has expired." Whereas judicial confession of Muhammad Khalid Ex.3/D stated that: "We both strangulated the deceased and left the deceased there. We were having one handkerchief which was used by Naseem Akhtar for strangulation and after killing the deceased, we came out of the room and bolted the room and after covering some distance Naseem Akhtar threw away the said handkerchief, which was recovered by police later on." He further contended that Memo, of inspection of occurrence and pointing out of dead-body of deceased as per Ex.5/C would show joint pointing out the place of offence and pointing out/producing the dead-body of deceased by. So far the seizure Memo, of audio cassette Ex.5/E, same has not been relied upon by the trial Court. Evidence of PW-4 Khurram Qamar is identical to
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that of PW-3 Sohail Raees Siddiqui. The appellants/accused are said to have jointly made confession before the police and have jointly led the police party to the place of incident therefore same would not be admissible under the law, and further SHO PW-9 stated that Chowkidar informed him that the dead-body was lying in the said room which place was accessable to every one. So far deposition of PW-6 Muhammad Jahangir Ex.9 it would show that the appellant/accused Muhammad Khalid was in police custody when he confessed his guilt and disclosed the name of co-accused Naseem Akhtar alias Jalees and stated to have kidnapped the by and killed him and his body was lying in Surjani Town. The evidence of PW-7 Fariduddin the father of deceased Ex. 10, is also same a that of other PWs therefore the statement of appellants/accused being in custody of the police would not be admissible in evidence and could not be used against them under Articles 38, 39 of the Qanoon-e- Shahadat. PW-8 Muhammad Fayyaz is a formal witness who registered the FIR. So far PW-9 Abdul Rasheed is I.O. Of the case and appellants/accused were in his custody and from 11.8.1994 till 15.8.1994 their detention was illegal as no remand was obtained by him. Reliance has been placed upon Faqira and others v. Emperor (AIR 1929 Lahore 665); (2) Refiqueuddin Ahmed and others v. Emperor (AIR 1935 Calcutta 184); (32) Durlav Namasudra v. Emperor (AIR 1932 Calcutta 297); (4) Khatas Khan and another v. State (1975 P.Cr.L.J. 172); (5) Abdul Ghani and three others v. State (1976 P.Cr.L.J. 1462); (6) Muhammad Amin v. Bashir Ahmed (1983 P.Cr.L.J. 1574); (7) Abdul Khaleem and two others v. State (1992 P.Cr.L.J. 1314); (8) Naeem Akhtar and others v. State (1993 P.Cr.L.J. 769); (9) Rafique alias Pheki and two others v. State (1993 P.Cr.L.J. 1017); (10) Muhammad Ashraf Khan Tareen v. State (1995 P.Cr.L.J. 313); (11) Ali and others v. State (PLD 1950 Baghdadul Jadid 26); (12) Manzoor and others v. State (PLD 1957 (W.P.) Lahore 1023); (13) Amir Ali v. State (PLD 1960 (W.P.) Karachi 753); (14) Ghulam Hussain v. State (PLD 1974 Karachi 91); (15) Muhammad Iqbal alias Javed Iqbal v. State (PLD 1976 S.C. 291); (I6) Mst. Ameer Khatun v. Faiz Ahmed and others (PLD 1991 S.C. 787); (17) Ghulam Nabi Shah v. Crown^ 1969 SCMR 629); (18) Allah Ditta v. State (1977 SCMR 251); (19) Nur Muhammad and another v. State (1986 SCMR 174); (20) State v. Kamal Khan alias Maloo and another (1993 SCMR 1378); (21) Muhammad Ashraf Khan Tareen v. State and another (1996 SCMR 1747); (22) The Queen v. Ram Chum Chung and others (24, Weekly Reporter page 36); (23) Pahlwan etc. v. State (PLJ 1974 Cr. Cases Karachi 503); (24) Queen- Empress v. Babu Lai and another (ILR VI Allahabad 509); (25) Gul Jamal and another v. State (NLR 1980 Criminal. SC 357) and (26) Muhammad Aslam Shah v. State (NLR 1993 Criminal 447). 6. Learned counsel for complainant has argued that the appellants/accused were not in wrongful confinement from 11.08.1994 to 15.08.1994 as 11.8.1994 was Thursday, 12.8.1994 was Friday, 13.8.19^94 was Saturday when both days were public holiday so also 14.8.1994 was Sunday and public holiday being independence day, consequently, appellants/accused were produced on 15.8.1994 and remand was obtained on 18.8.1994 on which date the confessions were recorded. However, he further submitted that mere fact that the confessions were recorded during the period when remand of the appellants/accused was not obtained would not vitiate the proceedings of the trial considering that no prejudice was caused to the appellants/accused. He has placed reliance upon Khursheed v. State (PLD 1996 S.C. 305); (ii) Muhammad Ashraf Khan Tareen v. State (NLR 1995, Criminal Law Judgement 105) and (iv) Ffafizur Rehman v. State (PLD 1993 Peshawar 252). He further submitted that mere fact that there has been few days' delay in recording the confessions from the date of arrest of the appellants/accused would not by itself be sufficient to discard the confessions from consideration when the confessions are found to be voluntary and true. Reliance is placed upon Ismail v. State (1995 SCMR 1615); (ii) Munir Ahmed v. State (1995 MLD 1126 at 1133 E); (iii) Qadir Bakhsh v. State (PLJ 1985 Criminal Cases Quetta 357) and (iv) Syed Sharifuddin Pirzada v. Suhbat Khan and others (PLD 1972 SC 363). He further argued that the confessions so recorded by the PW 1 were legal and were recorded in compliance with the legal requirements and the
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appellants/accused did not say in their 342 Cr.P.C, statements that they were not given warning by PW-1 before recording the confessions. Reliance is placed upon Mahammad Rafique and another, v. State (NLR 1993 Criminal Cases 672); (ii) Spin Bacha v. State (PLD 1990 Federal Shariat Court 57) and (iii) Gul Jamal and another v. State (NLR 1980 Criminal S.C. 357). He further contended that the circumstantial evidence viz. The conduct of the appellant/accused Muhammad Khalid when arrested by police started weeping as deposed also by PW-6 Muhammad Jahangir, so also when appellants/accused same to the house of the complainant Fariduddin PW-7, where they admitted their guilt and led the police party to a house under construction situated in Surjani Town and they pointed out the dead-body of deceased Anas Farid which was lying there and appellants informed that they strangulated/throttled the deceased with the handkerchief which was also secured at their Plantation coupled with the retracted judicial confessions of the appellants recorded on 18.8.1994 proved the guilt of appellants/accused beyond reasonable doubt. 7. So far the contentions of the learned counsel for the appellants that retracted judicial confessions Exts.3/C of Naseem Akhtar and Ex.3/D of Muhammad Khalid are neither true nor voluntary on the grounds urged above have no merit and force. 8. Learned counsel for appellants in support of his contention has placed reliance upon (i) Ameer Ali v. State (PLD 1960 Karachi 753) wherein learned Division Bench of this Court at page 757 para 10 observed "It is now-settled that a retracted confession is not by itself sufficient for convicting an accused person unless it is corroborated by independent evidence."; (ii) In Ghulam Hussain v. State (PLD 1974 Karachi 91 D.B.) Judicial confession was held to be not genuine and voluntary as retracted judicial confession of the appellant/accused was found to be absolutely identical to the appellants' statement to police. It was observed "I regret to say that extraordinary similarity between two statements can only lead to the conclusion that one was a copy of other and Mr. Noorudidn, learned counsel for appellants submitted that it reflected that judicial confession (Ex. 16/1) has been copied from his statement to the police (Ex.A)". In the cited case judicial confession was also discarded on the ground that the said confession was exculpatory in nature, (iii) In Gul Jamal and another v. State (NLR 1980 Cr.S.C. 357) Hon'ble Supreme Court granted leave to appeal to consider the question as to whether the retracted confession of one appellant could furnish corroboration to the retracted confession of the other which involved the interpretation of Section 30 of the Evidence Act in regard to which there was cleavage of opinion amongst the High Courts. The Supreme Court observed at page 362 "Concluding therefore despite the fact that Section 34 of Evidence Act provides that the confession of co- accused can be taken into consideration still it cannot be treated as a corroboratory fact for corroboration must emanate from a document which, is complete in itself and is not in need of support from any other quarter. Accordingly, it has no corroboratory value as unlike the testimony of an accomplice it is not given on oath and is not subject to cross-examination, though in a given case, if there is other evidence apart from the retracted judicial confession, then by reason of Section 30, the confession of co-accused implicating the other could be irrelevant fact." The above-cited cases do not relate to the contentions raised by the learned counsel for appellants in respect of instant case. There is no cavil with regard to the rule laid down by the superior Courts that retracted judicial confession itself would not be sufficient for convicting an accused person unless the same is corroborated by independent evidence. 9. So far the delay as contended by the learned counsel for appellants in recording judicial confession of the appellants the same per se would not be a ground to discard the same unless it has been proved from the circumstances of a case that the said confession has been obtained by
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coercion, threat and pressure. Reference may be made to (i) Muhammad Ismail and another v. The State (1995 SCMR 1615) wherein their Lordships of Supreme Court held that delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. Reference may also be made to (ii) Munir Ahmed v. The State (1995 MLD 1126, D.B.) wherein their Lordships of Division Bench observed that retraction of confession is wholly immaterial if confession is found to be voluntary and true and delay in recording confession is not fatal if the Court is satisfied that it is voluntary. It was further observed at page 1132 "it seems a fallacious contention that the retracted confession should always be discarded. Let me make it clear that the rule of prudence usually observed with reference to retracted confession does not require that each and every circumstance mentioned in confession with regard to participation of accused in the alleged offence, must be separately and independently corroborated. In our view, general corroboration is sufficient for the reasons that if the rule required that each and every circumstances mentioned in the confessional statement must be separately and independently corroborated, then the rule would be meaningless inasmuch as independent evidence itself would be sufficient to award convictions and it would be unnecessary to call the confession is wholly immaterial, once found that it was voluntary as well as true, that being the case there is no reason why this…
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