Case Summary & Legal Holding

This judicial decision was delivered by the Gilgit Baltistan Chief Court on 2018-03-30. The matter involves proceedings between SHOAIB AHMAD and others and The STATE and others, officially reported as 2019 PCRLJ 57. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

Court Name: Gilgit Baltistan Chief Court Judge(s): Malik Haq Nawaz, Ali Baig Title: SHOAIB AHMAD and others vs The STATE and others Case No.: Criminal Appeals Nos. 33, 34 and 36 of 2015 Date of Judgment:2018-03-30 Reported As: 2019 P Cr. L J 57 Result: Appeal and revision dismissed

JUDGMENT

JUDGMENT MALIK HAQ NAWAZ, J.---The appellants were booked for the offences vide FIR No.99/14 under sections 302/34, 377 and 364-A, P.P.C. registered at Police Station City Gilgit. 2. Since the appeals numbered 33/15, 34/15 and 36/15 are arising out from one and the same FIR, therefore, all these appeals are being disposed of by this single judgment. 3. The brief facts of the incident are that on 8.11.2014, complainant Muhammad Salim son of Muhammad Younis submitted an application in police station City Gilgit regarding missing of his son Hasnain (deceased), which was incorporated in the Roznamcha and proceedings were carried out under section 157, Cr.P.C. Announcements were also made from various Mosques regarding the disappearance of minor Hasnain. On 10.11.2014, DSP Sher Khan recognized the present appellants with the help of CCTV footage and arrested accused/appellant Shoaib Ahmad, who after being arrested confessed his guilt and further disclosed that the murder of deceased was committed by him and two of his companions namely Ibrar Ul Haq son of Shan Muhammad and Muhammad Usama son of Meraj Khalid and the reason behind the murder was disclosed as that the appellants used to commit sodomy with the deceased and they were apprehensive that the deceased will disclose this fact to his parents and such a disclosure would make them face the music. Accused Shoaib Ahmad further disclosed that after commission of murder, they have concealed the dead body in a cave near river view road. The accused Shoaib Ahmad was taken to the venue of occurrence, where the dead body was recovered on his pointation in the presence of marginal witnesses namely Fida Hussain son of Muhammad Sakhi and Muhammad Saleem son of Muhammad Younis vide Ex. PW.6/D. The dead body was identified by the complainant Muhammad Salim son of Muhammad Younis. There were marks of violence on the body of deceased and

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apparently the injuries were inflicted by pelting stones and some stab wounds were also noted on the face and head of deceased. The dead body was sent to the hospital for postmortem. The FIR was registered accordingly under sections 302/34/364, P.P.C. and investigation of the case was entrusted to SI Syed Ijlal Hussain. 4. S.I. Syed Ijlal Hussain after completion of necessary codal formalities handed over the dead body of deceased to his legal heirs. Co-accused namely Usama son of Meraj and Ibrar ul Haq son of Shan Muhammad were also arrested on 10.11.2014 since the cause of murder was stated to be the act of sodomy with the deceased and the apprehension of its disclosure, section 377, P.P.C. was added accordingly. Initial remand of the accused was obtained from the Court of Session, but due to intense protest by the parents and students of various schools/colleges and keeping in view the public sentiments and the wave of shock and terror, which struck due to this heinous murder sections 6/7 of A.T.A., 1997 were added and investigation of the case was transferred to investigation wing Gilgit. Accordingly a JIT was constituted on the orders of Home department of Gilgit-Baltistan, which was headed by SP Ishaq Hussain. 5. During investigation of the case the appellants revealed that they used to committing sodomy with the deceased of and on and when the deceased dawned on them his intentions to disclose the same to his parents, they decided to eliminate the deceased to set the matter at rest for ever. On the fateful day all the three appellants as per their devious scheme took the deceased to the venue of occurrence, where accused Shoaib Ahmad deputed his co-accused on surveillance and he inflicted knife blows and stone injuries on the person of deceased and then called his companions, who also contributed in the commission of offence and after commission of murder, they concealed the dead body in a cave, which has emerged due to collapse of the retaining wall near the river view road and the appellants went to their homes. As per the story narrated in final police report submitted under section 173, Cr.P.C., on the following day of occurrence accused Shoaib Ahmad visited the place of occurrence and sprinkled sand on the blood, which was visible at the place of occurrence. Recovery of knife and a stone having blood and human hair was also taken into possession on the pointation of accused Shoaib Ahmad. 6. After completion of investigation the challan of the case was submitted to Anti-Terrorism Court No. 1. In order to prove the case prosecution examined 22 PWs. Besides tendering in evidence Forensic, DNA, Serology analysis report Exh.P.A. and closed its case. Accused after the closure of prosecution evidence were examined under section 342, Cr.P.C., however, they did not get themselves examine under section 340(2), Cr.P.C. After hearing the arguments the final verdict was given on 02.11.2015. The findings of the trial Court are narrated in para.116 of the impugned judgment (available at page 64/65 of paper book), which is reproduced as under:- 116. In the light of the above discussions, I hold that the prosecution has proved the guilt of the accused Shoaib Ahmad, accused Abrar-ul-Haq and accused Mohammad Usama for murder of deceased Hasnain in furtherance of their common intention. Hence, I convict accused Shoaib Ahmad under section 302(b), P.P.C. read with section 7(a) of the Anti-Terrorism Act, 1997 and sentence him to death. He shall be hanged by his neck till he be dead. The above named convict- accused shall pay Rs.3,00,000/- (Rupees three hundred thousand) as compensation to the LRs of deceased under section 544-A, Cr. P. C. In default of payment of compensation by convict- accused, he shall undergo imprisonment for 2 years. Accused Abrar-ul-Haq and accused Mohammad Usama are hereby convicted under section 302/34, P. P, C. read with section 7(a) of the Anti-Terrorism Act, 1997 and sentence them to undergo rigorous imprisonment for life and also fine of Rs. 3,00,000/- (Rupees three hundred thousand) each. The amount of fine if recovered shall be paid to the LRs of the deceased under section 544, Cr. P. C. In default of payment of fine by the convicts-accused, they shall undergo imprisonment for two years. Accused Shoaib Ahmad, accused Abrar-ul-Haq and accused Mohammad Usama are also hereby convicted under section

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364-A/34, P.P.C. read with section 7(c) of the Anti-Terrorism Act, 1997 and sentence them to undergo rigorous imprisonment for life. The above named accused are also hereby convicted under section 377/34, P.P.C. and sentence them to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1,00,000/- (Rupees one hundred thousand) each. 7. The appellants have challenged their convictions and have filed two separate appeals bearing Cr. Appeal No. 33/15 and Cr. Appeal No: 34/15, while the complainant filed Cr. Appeal No. 36/15 for enhancement of sentence awarded to accused Muhammad Usama and Ibrar-ul-Haq, which were fixed for arguments together. 8. The learned counsel for the appellants at the very outset raised an objection that the accused are minors, their trial by Anti-Terrorism Court was coram non judice and they should have been tried under Juvenile Justice System, 2000 being minors and their second limb of arguments was that it is not a case of terrorism, it was a murder case to be tried by the Courts of ordinary jurisdiction in this context the learned counsel placed his reliance on PLD 2006 Kar. 331 (citation "AA" at page 369) and contended that the trial and the ultimate conviction which resulted thereafter be declared null and void and coram non judice. 9. We are afraid that the submissions of the learned counsel are wholly misconceived since it has been averred with vehemence in the relevant para that the offences committed by minors could validly be tried by the Anti-Terrorism Court. The relevant para (39) contained in PLD 2006 Kar. 331 is re-produced as under:- "I have already observed that Juvenile Court created under Ordinance, 2000 is the Court of general jurisdiction for taking cognizance and trial of all offences under any law. Whereas the courts created under the CNS Act and AT Act are the Courts of special jurisdiction to take cognizance and try offences mentioned under the said Acts therefore the provisions of both the Act are special provisions in comparison to such provisions of the Ordinance, 2000. Hence, the provisions of sections 12(1), 21-G of A.T. Act and section 45 of C.N.S. Act will be qualifying provisions and exceptions to section 4 of Ordinance, 2000 as discussed above. On the rule of harmonize construction, if the provisions of both the Acts and Ordinance are read together, then the Juvenile Court will be having jurisdiction to try cases of offences of all laws, but subject to above except the cases concerning the offences of CNS Act and A.T. Act will be having jurisdiction to try offences under the Acts offences under the Acts concerning major or minor accused. The question is answered accordingly." 10. A comprehensive reply to the objection raised by the learned defense counsel is addressed in a judgment of this Court reported in 2007 PCr.LJ 1011 (titled Meraj Hussain v. Judge Anti-Terrorism Court Northern Areas Gilgit). The relevant citation is at page 1013, which is reproduced as under:- "We feel that the point involved in case is although complicated but not unsolvable for the reason that an offender cannot be tried by a Court having no jurisdiction over the offence committed by such offender and offence of terrorism can be tried only by Anti-Terrorism Act, 1997 (amended 2001) and the age of offender has no relevancy to the Court of such jurisdiction. The expressed provisions of sections 2(d), 21-C(S), 21-C(7)(e), 21-C(7)-F and 21-F of the Act, 1997 clearly give the picture that a child below the age of eighteen years can validly be tried by an Anti-Terrorism Court constituted under the said Act of 1997. Our view is further strengthened by the provision of section 32 of Anti-Terrorism Act, 1997 which unambiguously provides that the provisions of the said Act are to have overriding effect over all other laws as against that the provisions of section 14 of Juvenile Justice System Ordinance, 2000 expressly provide that the provisions of the said Ordinance shall be in addition to and not in derogation of any other law for the time being in force." 11. As stated in the above referred judgments section 32 of Anti-Terrorism Act. 1997 has an overriding effect, whereas section 14 of Juveilne Justice System, 2000 provides that the said

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provision is in addition to and not in derogation of any other law. Both the relevant provisions are reproduced for the purpose of ready reference. S. 32. Overriding effect of Act.... (1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before (an Anti-Terrorism Court), and for the purpose of the said provisions of the Code, (An Anti-Terrorism Court) shall be deemed W be a Court of Session. (2). In particular and without prejudice to the generality of the provisions contained in subsection (1), the provisions of section 350 of the Code shall, as far as may be, apply to the proceedings before (An Anti-Terrorism Court), and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to (An Anti-Terrorism Court). S.14. Ordinance not to derogate from other laws---The provisions of this Ordinance shall be in addition to and not in derogation of, any other law for the time being in force. 12. In the light of above discussions, we hold that the objection of learned counsel that the trial of the appellants was coram non judice does not hold the field hence repelled. The second limb of the arguments of the learned defence counsel that the said murder is a normal and routine murder, which was to be tried by the Courts of ordinary jurisdiction, is also without any foundation. Furthermore after issuance of SRO 572(1)/2012 dated 30-05-2012 have closed the chapter for ever as the Judge Anti-Terrorism Court has been conferred the powers of Juvenile Court also. The said notification is re-produced as under:- "Exercise of powers of Juvenile Court by Anti-Terrorism Court: S.R.O. 572(I)2012.---In exercise of powers of powers conferred by subsection (1) of section 4 of the Juvenile Justice System Ordinance, 2000 (XXII of 2000), as amended by the Juvenile Justice System (Amendment) Ordinance, 2012 (No. V of 2012), the Federal Government is pleased to designate the existing Anti-Terrorism Court established throughout the country under the Anti- Terrorism Act, 1997, (XXVII of 1997), to exercise the powers of Juvenile Court in the area of their respective jurisdiction, under the Juvenile Justice System Ordinance, 2000 (No. XVII of 2000)." 13. Anti-Terrorism Act, 1997 was re-written with certain amendments after pronouncement of the judgment in the case "Mehram Ali v. Federation of Pakistan" reported in PLD 1998 SC 1445. Section 6 of the Anti Terrorism Act defines the offences falling in the category of "Terrorism". The provisions of section 6 of the Anti-Terrorism Act, 1997, which defines "terrorism" clearly show that the said section is divided into two main parts, the first part contained in section 6(1)(h) and (c) of the said Act deals with the mens rea and makes a mention of the "design" or the "purpose" behind an action and the second part falling in section 6(2) of the said Act specifies that the action taken when coupled with the mens rea will constitute an offence. Its aftershocks were felt by the public and the act terrified the general public and a section of people. 14. A critical study of section 6(2) of Anti-Terrorism Act, 1997 clearly depicts that the intention of the legislature is very clear, if use of threat or action creates serious risk to the safety of the public or section of public or the same is designed to frighten general public and thereby prevents them from coming out and carry out their ordinary pursuit businesses, lawful trade, daily business or disrupt the civil life or tempo of life, the same would definitely fall within the definition of "terrorism". 15. The way the gruesome and barbaric murder of an innocent child was committed, which spread a wave of shock and terror in the society and especially in the parents, was more than sufficient for taking cognizance of offence by the Anti-Terrorism Court. The offence created hype in the print and electronic media, rallies of students of various schools and colleges and protesting processions of parents were carried out. Whole of the public was in grief and shock, a terror prevailed over the area, so the said contention of the learned counsel is also without any legal footings and is turned down.

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16.The learned counsel was asked to address the Court on merits of the case. The learned counsel Mr. Burhan Wali, who represented accused/appellants Shoaib Ahmad and Ibrar-ul-Haq submitted at bar that the FIR has been lodged with delay and there is no evidence of sodomy, which was stated to be the reason of murder. The learned counsel in support of his arguments further contends that there is no worth relying evidence to connect the appellants with the crime and they have been made a scapegoat just to fill stomach of the file. Per submissions of learned counsel all the other evidence produced by the prosecution is planted and defective and cannot be made a basis for conviction of the accused. 17. Mr. Muzffar-ud-Din the learned pauper counsel for accused Muhammad Usama submitted that the accused is of a tender age and has played no active role in commission of offence. As per submissions of learned counsel there exists no cogent evidence to connect the appellant Muhammad Usama with the crime. 18. On the other hand the learned Dy. Advocate General assisted by Mr. Asadullah Khan, Advocate vehemently contended that the appellant committed a barbaric murder of an innocent child without being there any legal justification after hatching a deep rooted conspiracy and pre- planned. The plan of murder so prepared and the way it was executed leaves no doubt in a prudent mind that they were mature enough and their trial by the Anti-Terrorism Court was legal and justified. Per learned counsel for the complainant no ill will or malice could be attributed either to local police or to the complainant, as the crime was detected through CCTV footage, which was duly exhibited in Court and the defence. was provided its recording. Recoveries were also effected from the appellants and they all confessed their guilt, while pointing out the place of occurrence in presence of a Magistrate, which evidence is admissible in evidence under Article-40 of Qanun-e- Shahadat, 1984. The confessional statements of the appellant were recorded under section 21-H of Anti-Terrorism Act, 1997, which though recorded independently but all are quite in line with each other. Lastly the learned Dy. Advocate General and learned counsel for the complainant prayed that the sentence of life imprisonment awarded to the accused Ibrar-ulHaq and Muhammad Usama be enhanced to death to meet the ends of justice. 19. We lent our ears to the submissions advanced by both the learned counsel and have also gone through the evidence of the prosecution witnesses examined to prove the case. It is an, admitted fact that the crime was detected through CC TV footage and the appellant Shoaib Ahmad was arrested, who disclosed the fact of burying the dead body of the deceased in a cave near river view road, which was later on recovered on his pointation in the presence of marginal witnesses. The post mortem on the dead body was conducted on the same day at 1500 hours by Dr. Sarwar Abbas, MO DHQ hospital Gilgit, (Ex.PW.1/A), the cause of death has been formulated as:- (1) Major cause of death was due to fatal incised and blunt injury of head and brain leading to severe external and internal hemorrhage to shock and dead. 2. Throatening. The Doctor further opined that in ordinary course of nature, such injuries were sufficient to cause death and the time which elapsed between death and postmortem was more than 24 hours, which also coincides with the time of disappearance of the child. The dead body of deceased was recovered on the pointation of accused Shoaib Ahmad vide Ex.PW.6/D and site plan Ex.PW.6/E was also prepared on the pointation of the accused Shoaib Ahmad. 20. Under Article 39 of Qanun-e-Shahadat, 1984, any statement made by an accused during police custody is considered to be inadmissible in evidence, but Article 40 of Qanun-e-Shahadat, 1984 talks about how much information received from the accused may be proved. If a confessional statement discloses a certain fact, associated or concerned with the commission of murder, then the same is admissible in evidence and will be accepted as evidence. The dead body of deceased Hasnain was recovered from a cave on the pointation of accused Shoaib Ahmad and the same is

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fully covered under Article 40 of Qanun-eShahadat, 1984 and could be taken as a valid piece of evidence, as the recovery of dead body on the pointation of accused Shoaib Ahmad and the place where the dead body was concealed was in his exclusive knowledge and the same was discovery of a fresh fact not known to anybody earlier. 21. As disclosed supra the crime was detected through CC TV footage, and to prove the CC TV footage PW-12, SIP Muhammad Tariq and PW-13 Kashif Aziz were examined in the trial Court. The statements of both the PWs remained un-shattered despite a lengthy and exhaustive cross- examination by the learned defence counsel nothing in favour of prosecution could be extracted from the above prosecution witnesses. After the amendment knocked in Article 164, Qanun-e- Shahadat, the evidence procured through modern devices is admissible in evidence. The last seen evidence is available in the shape of CC TV footage and it has also come on record that deceased was never seen alive after 08/11/15 till his dead body was recovered on the pointation of accused Shoaib Ahmad. The CD of CC TV footage was taken into possession by the I.O. in presence of marginal witnesses and exhibited in trial Court as PW.14/A and in addition to the above evidence, the statement of F.C. Kamran Khan PW.15 is also very important, who on the fateful day when the deceased Hasnain was missing in the later hours of the day has seen the present accused persons playing together in a street of Mohallah. It is pertinent to mention here that soon after hearing the news of disappearance of deceased Hasnain, the said PW went to the houses of above three accused to inquire about the deceased child, but on the inquiry all the accused denied to furnish any information and stated that he got separated from them from Dar Plaza, after purchasing a CD. In order to avert the suspicion the accused suggested to the said PW that the search should be made in the adjacent area which abounds in Shia community. The statement of PW-16 Muhammad Naseem, who is uncle of deceased, is also in line with the statement of PW-15 Kamran Khan and both the statements are consistent on all material particulars. 22. The weapon of offence (knife) was recovered on the pointation of accused Shoaib Ahmad and taken into possession vide recovery memo Ex.PW.7/A. The said knife was sent to chemical examiner for expert opinion and the report of chemical examiner is positive and the same has been tendered in evidence by the learned special prosecutor and exhibited as Exh. P/B. One blood stained stone was also recovered from the place of occurrence on the pointation of accused and taken into possession vide Ex.PW.9/D and the same has also been confirmed by the chemical examiner, that the blood stains present on the last worn clothes of deceased and the one present on the stone are of the same group, which, also provides corroboration to the case of prosecution. 23. Site plan Ex.P.2/A and Ex.PW.2/D were prepared by the I.O. on the pointation of the above mentioned accused persons in presence of marginal witnesses and Magistrate namely Ghaib Ali Shah examined as PW-2 in the Court. Since the above site plans were prepared on the joint pointation of accused, therefore, not admissible in evidence, hence discarded. The site plan which was prepared by the I.O. and exhibited in Court as Ex.PW.6/F is admissible in evidence, which was prepared on the pointation of accused Shoaib Ahmad on 10.11.2014 at the time of discovery of dead body. The accused persons are also charged under section 364-A, P.P.C., which is reproduced as under. Section 364-A. Kidnapping or abducting a person under the age of fourteen. Whoever kidnaps or abducts any person under the age [fourteen] in order that such person may be murdered or subjected to grievous, hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years. 24. The first thing to be considered is whether the point of abduction has been proved or not. The case in hand is not a case of kidnapping or abduction as on the offer to purchase of some fire

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cracker, the deceased himself willingly accompanied the appellants and it cannot be said that the deceased was either kidnapped or abducted as per the mandate of section 364-A, P.P.C. In order to invoke the provisions of N section 364-A, P.P.C., it is incumbent upon the court to first see whether there was kidnapping within the meaning of section 361, P.P.C., which envisages co-existence of the under mentioned phenomena therein:- (i) The minor taken or enticed away. (ii) The minor was out of the keep of his guardians. (iii) The keeping of minor was without his consent. Once the prosecution by means of cogent and reliable evidence establishes that the offence of kidnapping spells out from the evidence adduced under section 364-A, P.P.C. would be, either the appellants intended to murder the deceased or subject him to grievous hurt or lust. The words "takes and entices away" are very important. In the case of Muhammad Sharif v. State reported in 1993 PCr.LJ 1817, it was held that:- "The expression "taking and enticing" call for…

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