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Petitioner: AZEEM KHAN and another VS Respondent: MUJAHID KHAN and others
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Asif Saeed Khan Khosa, Dost Muhammad Khan Title: AZEEM KHAN and another vs MUJAHID KHAN and others Case No.: Criminal Appeals Nos.497 and 496 of 2009 Date of Judgment:2015-10-15 Reported As: PLJ 2016 Sc 123, 2016 SCMR 274 Result: Order accordingly
JUDGMENT
JUDGMENT ' DOST MUHAMMAD KHAN, J:---The appellants (i) Mujahid Khan and (ii) Arbab Khan, at a trial held by the learned Presiding Judge of Anti Terrorism Court-II, Rawalpindi, upon conviction under sections 365-A and 302, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997, were handed down sentence(s) of death under section 365-A, P.P.C. And S.7(e) of A.T.A. Additionally, appellant Mujahid Khan was convicted and was sentenced to death under section 302(b), P.P.C. The properties of the appellants were also ordered to be forfeited. 2. Both the appellants filed appeal before the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was heard along with Murder Reference No.50-T/2007 as well as Criminal Revision No.62- T/2007 filed by the complainant and vide impugned judgment dated 01.06.2009, the appeal of the appellants was dismissed and the Reference sent by the Trial Court under section 374, Cr.P.C. Was answered in affirmative, however, the Criminal Revision Petition of the complainant was dismissed. 3. Both these appeals have been filed with leave of the Court dated 27.08.2009. The order is self speaking and elaborate one." ' We have heard Sardar Muhammad Ishaq Khan, learned Sr. ASC for the complainant, Agha Muhammad Ali, learned ASC for the appellants in Crl. A. No.497/2009 and Mr. Ahmad RazaGillani, learned Additional Prosecutor General, Punjab and have carefully gone through the evidence on record. 4. Precise but relevant facts are that, a pre-teen nephew of the complainant, Khan Wali (PW-4), namely Muhammad Bilal (deceased) aged about 10/11 years went missing on 16.07.2006. In the crime report (Ex-PH/1) the complainant expressed apprehension that his nephew was probably kidnapped. After registration of the crime report, Nazar Muhammad SI, Police Post Naseerabad
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inspected the spot and prepared the site plan thereof. In the meanwhile a cell phone call was received by Muhammad Wali (PW-3); the caller used cell phone No.0302-5665028 and the receiving cell phone number of Muhammad Wali was 03009866033. The caller demanded Rs.25,00,000/- however, bargain was struck at Rs.3,00,000/-, which amount was delivered by leaving it at the place told by the caller to Muhammad Wali (PW-3). At this stagesection 365-A, P.P.C. Was added to the charge. The Investigating Officer obtained phone calls data of both the cell phones from the mobile company through one RanaShahidParvez, DSP on 03.08.2006. On 17.08.2006 both the appellants were arrested. During interrogation the appellants jointly disclosed that they had murdered the abductee Muhammad Bilal on 5th day of his abduction at 12:00 midnight by chocking his mouth and the dead body was then buried in a ditch however, on 22.07.2006 they had received an amount of Rs.3,00,000/- as ransom money from Muhammad Wali PW, who is the son of the complainant. The appellants further disclosed that after abduction of the deceased on 16.07.2006, they tied him with a tree, situated on the bank of flood channel. The abductee was killed because he used to raise hue and cries. 5. After the said disclosure; both the appellants were jointly taken to Tarnol area where they pointed out the place of crime, wherefrom mud stained torn 'shalwar', shirt and a pair of slippers, allegedly belonging to the deceased were recovered along with a wrapper of candies/toffees. A strip containing six pills was recovered from the pocket of the shirt of the deceased. These articles were identified by the father and cousin (Muhammad Wali) to be of Muhammad Bilal deceased on the spot. 12 pieces of bones were also recovered from the crime spot through a recovery memo and were sealed into one and the same parcel. A Suzuki Mehran Car No.FDO 5481 with rpgistration book was recovered from appellant Mujahid Khan besides, the cell phone with SIM No.0302- 5071540 was also recovered from appellant Arbab Khan on his personal search. 6. Both the appellants made judicial confession before Ch. Muhammad Taufiq, Magistrate on 18.08.2006 however, against the procedure as required under the law, they were handed over back to the same police officer, who got further physical custody of both the appellants on the same day from the Anti Terrorism Court, Rawalpindi. 7. Besides the above, appellant Mujahid Khan had also made extrajudicial confession before Haji Muhammad Ashraf (PW-8), the close relative of the complainant, on 16.07.2006 at 11:00 am at Rawalpindi, however, Muhammad Ashraf instead of informing the complainant through any source including cell phone call, decided to proceed to Peshawar where, he had allegedly struck a bargain with regard to the purchase of property. According to him, he was required to pay the earnest money to the seller and when he came back, he informed the complainant on the following day about the said fact. 8. At the trial, Muhammad Wali (PW-3) had stated that, on17.08.2006, they were present with the police party, headed by the Investigating Officer who got information that both the appellants were coming to Rawalpindi in the Suzuki Mehran Car, mentioned above, thus, the police laid barricade at Tarnol and both the appellants, on reaching there, were intercepted and arrested. Contrary to the police statement, this witness has further stated at the trial that both the appellants were taken to the crime spot one after another and at their pointation the above crime articles, clothes and pair of slippers were recovered therefrom, which were taken through separate memos, Ex-PA and Ex.PB. 9. The bones recovered, were sent to the Forensic Science Laboratory, Lahore however, Dr. ManzoorHussain, Research Officer of Molecular Biology, University of Punjab, Lahore (PW-13) stated that he received 21 numbers of bones and in addition thereto teeth as well, however, these were not shown in Ex.PA. At the instance of Arbab Khan appellant, an amount of Rs.150,000/- was recovered from an iron box in his house. The attesting witnesses to the recovery memo (Ex.PG) are the complainant and Muhammad Wali, who have played very active role in the course of furthering the investigation of the case.
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10. On the other hand, Dr. ManzoorHussain (PW-13) brought on record the positive result of the DNA Test (Ex-PR) on the basis of samples, taken from Azeem Khan and Mst. KhiyalBibi, the parents of the deceased with the recovered pieces of bones and teeth. 11. At the conclusion of investigation, charge sheet was filed against the appellants in the Trial Court, which ended in the conviction of both the appellants stated above. 12. The summary of the above detail would show that the prosecution has placed reliance on the following pieces of evidence:- (i) The cell-phone data, collected from the cellular company, of both the cell phones, the one allegedly belonging to appellant Arbab Khan and the other to Muhammad Wali (PW-3); (ii) The judicial confession of both the appellants recorded by the Magistrate; (iii) The extra judicial confession made by one of the appellants, namely, Mujahid Khan, before Haji Muhammad Ashraf (PW-8), Vice President, "Anjuman-e-Tajran, Bara Market" Rawalpindi; (iv) The recovery of the bones (12 in number), clothes and slippers of the deceased from the crime spot; (v) The recovery of money from the house of the above appellant; (vi) The recovery of Suzuki Mehran Car, which one of the appellants had allegedly purchased from unknown seller, paying a portion of the ransom money; and (vii) Positive result of the DNA test. 13. Undeniably, it is an un-witnessed crime. The entire edifice of the prosecution case is based on circumstantial evidence and recovery of the alleged incriminating articles, detail of which is given above. 14. The judicial confessions, allegedly made by both the appellants are the material piece of evidence in the prosecution hand, therefore, we would deal with the same in the first instance. 15. Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. By now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. With regard to these proceedings be given by the Magistrateunder his seal and signatures and the accused shall be dent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is, Naib Court wearing police uniform, or any other police official/officer, because such
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careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused. 16. In the instant case, the Recording Magistrate namely, Ch. Taufiq Ahmed did not observe least precautions, required under the law. He was so careless that the confessions of both the appellants were recorded on oath, grossly violating the law, the same, therefore, has rendered the confession inadmissible which cannot be safely relied upon keeping in view the principle of safe administration of justice. 17. The Recording Magistrate committed successive illegalities one after the other as after recording the confessions of the appellants on oath, both were handed over to the same police officer, who had produced them in the Court in handcuffs. This fact bespeaks volumes that the Recording Magistrate was either not knowing the law on the subject or he was acting in the police way desired by it, compromising his judicial, obligations. This careless attitude of the Magistrate provided premium to the Investigating Agency because it was thereafter, that the recoveries of the so-called incriminating articles were made at the instance of the appellants, detail of which is mentioned above. 18. In our considered view, the confessions of both the appellants for the above reasons are of no legal worth, to be relied upon and are excluded from consideration, more so, when these were retracted at the trial. Confessions of this nature, which were retracted by the appellants, cannot mutually corroborate each other on the principle that one tainted evidence cannot corroborate the other tainted piece of evidence. Similar view was taken by this Court in the case of Muhammad Bakhsh v. The State (PLD 1956 SC 420), while in the case of KhudaBux v. The Crown (1969 SCM R 390) the confession made, was held not voluntary because the accused in that case was remanded back to the police after making confession. 19. Both the confessions of the appellants prima fade appear to be untrue because the same are clashing with the story set up by prosecution witnesses on material particulars of the case. In the confession of Mujahid Khan it is stated that Arbab Khan co-accused contacted Haji Azeem Khan (father of the deceased) on phone and demanded an amount of Rs.25,00,000/-.From him as ransom money also telling him that he will call back. While, Muhammad Wali (PW-3) stated that it was he who was contacted by the accused on cell phone in this regard four times ondifferent dates and he struck the bargain at Rs.3,00,000/- which amount he placed at the point, told to him by the accused. The cell phone data collected by the police is with regard to the two cell-phones, one is attributed to Arbab Khan appellant and the other to PW Muhammad Wali. At the relevant time, Azeem Khan, father of the deceased was abroad and only the complainant, Khan Wali and his son Muhammad Wali have been shown interacting with the caller on phone. The contradiction pointed out, is of a serious nature thus, has demolished the story given in the confessions of the appellants and has rendered the same of no legal efficacy. Appellant Mujahid Khan has disclosed in his confession that with the share of the ransom money he purchased Alto Taxi Car but a car of different make (Suzuki Mehran) was recovered. This aspect of the matter was also not investigated to trace out the seller of the car besides, the time and date of the bargain of purchase of the car was also not brought on record. Similarly, appellant Arbab Khan stated in his confessional statement that he had spent the money on his engagement with a girl. Neither the name of the girl has been brought on record nor of her family members i.e. Parents, to corroborate this aspect of the matter. Such evidence would have provided enough corroboration what was stated in the confession but it appears that, the same was deliberately withheld therefore, adverse inference is to be drawn against the prosecution. In his confession (Ex-PM), appellant Mujahid Khan has stated that he and Arbab Khan both were called on phone by the police and were then arrested, while PW-3, stated at the trial that both the appellants were arrested during snap checking on a barricade, laid near Tarnol. The above contradiction is of a grave nature, which cannot be lightly
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ignored. At the trial, the Recording Magistrate made crude attempts to rectify the wrong/illegalities, he had committed in recording the two confessions however, the law of evidence is clear on this point that documentary evidence shall prevail over the oral statement made at a G subsequent stage, contradicting the contents of documents. Therefore, his belated statement at the trial cannot be safely relied upon. The subsequent statement of the Recording Magistrate created many doubts and had made both the confessions highly doubtful. In the circumstances the principle of re-benefit of doubt is attracted, which has to be extended to the appellants and not the prosecution. The questionnaire would show that many mandatory questions were not put to the appellants like duration of police custody and that they would not be given back to the police whether they record the confession or not. This is another H infirmity of a serious nature, diminishing the voluntary nature ofthe confession to naught. 20. Leaving apart the above infirmities, Mujahid Khan, according to his confession, was a conductor on a Dumper while Arbab Khan was employed in a local hotel near Tarnol. In both the confessions, the appellants have stated that due to poverty they decided to commit the crime of abduction for ransom however, the investigative agency did not record the statements of the driver/owner of the Dumper and the proprietor of the hotel where the accused were employed. Thus, beside others, this important link is missing in the chain for lack of corroborative evidence. Moreover, when both the appellants had spent their share of ransom money, then how an amount of Rs.150,000/- was recovered from appellant Arbab Khan. 21. In both the confessions, it is stated that the abductee was immediately taken out to an open place and he was tied with a tree. One of the appellants, Mujahid Khan used to stay with him at night but at day time he used to leave behind the abductee all alone. Such unnatural conduct could not be 'believed as any passerby could come across and would have released the abductee. Such a fantastic story, bereft of logic, can only be believed by a blind or imprudent man because it was the abductee, on whom the appellants were to encash upon Rs.25,00,000/- No one, who catches a big fish would let it to swim again in the seawater because, its retrieval would become absolutely impossible. 22. The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner. 23. The extra-judicial confession, allegedly made by one of the accused before Haji Muhammad Ashraf (PW-8), Vice President of the "Anjuman-e-Tajran, Bara Market" Rawalpindi appears to be a concocted story because he admitted that the complainant is related to him and they reside in the same street. ' Appellant Mujahid Khan allegedly made extra judicial confession before him on 14.08.2006, however, he being closely related and having somewhat business connection with the complainant, did not inform him immediately although he was having a car with him at that time and also a cell phone, rather he decided to go to Peshawar and when he came back on the following day, instead of persuading the complainantKhan Wali, under the direction of the latter, he straightaway went to Police Post Naseerabad and recorded his statement with the police against both the appellants. His plea that he had struck a bargain of property and was to pay earnest
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money therefore, he went to Peshawar thus, could not inform the complainant for that reason, is a fallacious one. Being a very serious matter and being a relative of the complainant and because the complainant was residing in Rawalpindi, few kilometers away from that place, when he got this information at 10:30 am on 14.08.2006, there was no impediment in his way to inform him directly or through phone. Peshawar city is roughly 100 kilometer away from Rawalpindi, if at all he was required to strike a bargain for purchase of property, he could have reached there within 2 hours after disclosing this fact to the complainant. Even, the 10 did not go to Peshawar to verify this assertion of the PW, as to whether he had gone to Peshawar for the above purpose and who was the seller of the property, with whom he had struck the bargain. No document about the bargain was produced to the Investigating Officer. ' Even otherwise, the story appears highly insensible and runs counter to natural human conduct and behaviour that the appellant, Mujahid Khan would have disclosed such a gruesome crime before this PW, involving the necks of both, knowing well that this witness was of no help to him/them because on record it is proved that this PW did not utter a single word to the complainant persuading him for reconciliation and for settlement, rather after disclosing the fact of disclosure of the crime, the appellant had made to him, he (Haji Muhammad Ashraf) on the direction of the complainant went straight to the Police Post and recorded his statement with the Investigating Officer. This, in our considered opinion, appears to be a concocted story. He being the relative of the complainant and also running the business in the same market, where the complainant do the same business, the appellant Mujahid Khan would have never opted for disclosing such a gruesome crime to him, when by then the complainant party and the Investigating Agency, both were clueless about the crime of murder of the deceased and also about the actual culprits. This part of the evidence is nothing but a tailored story, which was arranged with, the help of the Investigating Agency thus, it is of no legal worth and being absolutely unreliable is excluded from consideration. 24. It is a consistent view of the Courts that extra-judicial confession, if made before a person of influence and authority, expected to extend helping hand to the accused, which is also strongly corroborated, can only be considered as a piece of circumstantial evidence. This Court held so in the case of Noor Muhammad v. The State (PLD 1991 SC 150). Such evidence is held to be the weakest type of evidence. No conviction on capital charge can be recorded on such evidence. 25. The recovery of 12 numbers of bones, shirt, shalwarand slippers of the deceased is also liable to be discarded. The recovery memo (Ex-PA) would show that father of the abductee, namely, Azeem Khan and PW Muhammad Wali are attesting witnesses to the same, who were naturally highly interested witnesses. Secondly, when this parcel was received after about one month in the Forensic Science Laboratory, Lahore, the numbers of bones were found 21 as have been shown in the report and in addition thereto, teeth were also received in the sealed parcel which, at no occasion was the case of the prosecution. Thus, this serious conflict between the two documents is of such a nature, which could not be reconciled altogether, either by the learned ASC for the complainant or by the Additional Prosecutor General. This fact by itself creates sufficient doubts and on this score, the DNA test report is of no legal worth. ' The abductee was killed probably 2/3 days after 16.07.2006 while pieces of bones were recovered on 17.08.2006 which were also overrun by the flood water of the channel and mud as well. According to the well-known medico-legal jurist, MODI such like destruction of entire body of human being, even of teenager is not possible within two months because some of visceras made of tough tissues and full skeleton of human body remain intact. This opinion of the jurist is based on practical experience in many cases of this nature, instances of which are given by him in the Chapter "STAGES OF PUTREFACTION OR DECOMPOSITION OF BODY". In this case, only scattered pieces of bones were recovered and not full skeleton of human body, which by itself is unbelievable, being
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against the well established and universally recognized juristic view on the subject. Thus, the possibility that the body of the person whether dead or alive was torn into pieces by beasts or dogs etc. Moreover, from where the nine additional bones and teeth were arranged by the police and when these were put in the same parcel, is a big question mark for which the prosecution has got no answer to give. In any case, the recovery of the pieces of bones after one month is entirely doubtful in light of the view expressed by MODI in his book. Same is the view of other renowned Jurists on the subject. 26. The next piece of evidence is the positive result of the DNA test. Whether the report was legally admissible, keeping in view the provision of section 510, Cr.P.C. Where under, the report of biochemical expert on DNA (a biochemist) is not covered thus, it is open to a serious debate because under the above provision of law, specified experts reports, excluding the report of above said expert, have been made admissible. This aspect would be discussed and decided in some other cases elaborately however, at present we are unable to hold the same as an admissible piece of evidence in absence of any sanction of law. 27. In the recent past many scandals in USA, UK and…
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