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Petitioner: Zahir Zakir Jaffar, The State VS Respondent: The State, Zahir Zakir Jaffar
Court Name: Islamabad High Court Judge(s): Sardar Ejaz Ishaq Khan, Aamer Farooq (C.J) Title: Zahir Zakir Jaffar, The State vs The State, Zahir Zakir Jaffar Case No.: JAIL APPEAL NO.117-2022, MURDER REFERENCE NO.03-2022 Date of Judgment:2023-03-13 Reported As: 2023 IHC 160 Result: Appeal Dismissed
Judgment
AAMER FAROOQ C.J. This judgment shall decide the captioned appeal and Murder Reference No.03-2022 along with other criminal appeals and revisions mentioned in the Schedule attached herewith. 2. Zahir Zakir Jaffar (appellant in Jail Appeal No.117-2022) along with eleven others namely Muhammad Iftikhar, Muhammad Jan, Zakir Jaffar, Mst. Asmat Zakir Jaffar, Jamil Ahmad, Tahir Zahoor, Dileep Kumar, Wamiq Riaz, Samar Abbas, Abdul Haq& Amjad Mahmood were indicted in case FIR No.380 dated 20.07.2021 under sections 302/511/201/109/176/118/376/364/365/368 PPC registered with Police Station Kohsar, Islamabad and after trial the appellant along with Muhammad Iftikhar and Muhammad Jan were convicted and accordingly sentenced by learned trial court vide judgment dated 24.02.2022. All other accused were acquitted by learned trial court through the same judgment. The appellant, since has been awarded capital punishment hence, Murder Reference was sent by learned Sessions Court for confirmation of the referred sentence (Murder Reference No.03-2022). 3. The appellant seeks his acquittal, which is the subject matter of Jail Appeal No.117-2022, Muhammad Iftikhar and Muhammad Jan also seek their acquittal through Criminal Appeal No.111 & 136-2022; the complainant Shaukat Ali Mukaddam has challenged acquittal of eight accused persons mentioned above through Criminal Appeal No.123-2022; the State also has challenged acquittal of referred persons by filing independent appeal i.e. Criminal Appeal No.157-2022. Muhammad Iftikhar and Muhammad Jan have also preferred Jail Appeals against their conviction and sentence (Jail Appeal No.132 & 133-2022). The complainant seeks enhancement of sentence awarded to the convicted persons, which is the subject matter of Criminal Revision No.28-2022).
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The State also seeks enhancement of sentences of the convicted persons and the same is the subject matter of Criminal Revision No.32-2022. Finally, one acquitted accused Amjad Mahmood filed a criminal complaint against Zahir Zakkir Jaffar, which was dismissed by learned trial court vide order dated 17.11.2021 and the same is the subject matter of Criminal Revision No.93-2021. 4. The case of the prosecution, against the accused persons, is that on 20.07.2021, above mentioned FIR was registered on the complaint of Shaukat Ali Mukaddam that his daughter went missing since 19.07.2021 and did not return home, however, at about 10:00 p.m., he received a call from Police Station Kohsar, Islamabad that his daughter has been found dead at the residence of the appellant i.e. House No.7, Street No.60, F-7/4, Islamabad. 5. Initially, one Zahir Zakir Jaffar was the sole accused, however, subsequently, supplementary statements were made by the complainant and other persons, named hereinabove, were made accused. 6. Learned counsel for the appellant in Jail Appeal No.117-2022inter alia contended that there is considerable delay in lodging of FIR, which smacks concoction and deliberation; in this behalf, it was argued that the time of death, in the FIR, has been noted as 9:00 p.m., whereas it was lodged after 11:00 p.m., whereas travel time between the place of occurrence from the Police Station is hardly of five minutes. It was contended that prosecution has not rendered any explanation for the delay in lodging of FIR and even learned trial court has not met with the said argument. It was contended that during course of proceedings, application under section 465 Cr.P.C. was filed which was to the effect that appellant is a lunatic and is unfit to plead. Initially, learned counsel took up the position that referred application has not been decided by learned trial court, however subsequently, he did admit that application was decided by learned trial court, however, learned counsel did move similar application before this Court as well but did not really press the same with any vigor. It was the stance of learned counsel that appellant was a patient suffering from mental ailment and was seeking medical help including therapy work and was unable to plead or stand trial. It was contended that while dismissing the application, filed by the appellant, learned trial court did not take into consideration the law as propounded by the august Apex Court in the case noted in the footnote[1]. It was also argued that case of the prosecution is based on conjectures and surmises inasmuch the case is of circumstantial evidence and there is no ocular account; in this behalf, it was contended that statement of Shaukat Ali Mukaddam (the complainant) is incoherent and could not stand the test of cross examination. It was further pointed out that it seems that postmortem of the deceased was conducted by three different doctors and the person, who actually did the same, never really appeared before learned trial court. It was submitted that though DNA report conducted for the purposes of seminal swabs is positive yet it does not mean that there was non consensual sexual intercourse by the appellant with the deceased; that there are bruises noted in the medical report on the thighs of the deceased but that does not mean that rape was committed. It was further submitted that investigation conducted by the police authorities is below par inasmuch as cellular phones of the parents of deceased Noor Mukaddam were not taken into custody. It was submitted that mobile phone of the deceased was taken in possession, but its screen was broken by the police authorities; that forensic report in this behalf is non-conclusive. Learned counsel argued that forensic of the mobile phone was essential inasmuch as complainant has stated in the complaint as well as in the FIR and in his testimony as prosecution witness that Noor Mukaddam called her mother to inform her about her whereabouts; that complainant has also deposed that he received a call from the appellant but the same is not reflected in CDR. It was submitted that Call Data Record (CDR), presented in the court, does not show that Noor Mukaddam called her parents. It was submitted that even-otherwise, no one entered appearance on behalf of mobile phone company/cellular company to vouch for the veracity of CDR and the same carries no evidentiary
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value in light of judgments of Hon'ble Supreme Court of Pakistan. Learned counsel also argued that it is not the case of abduction inasmuch as Noor Mukaddam voluntarily entered the premises of the appellant and the same is borne out from CCTV footage. It was submitted that she was a frequent visitor and she as well as the appellant were close friends and their families knew the same. It was submitted that in the CCTV footage, Noor Mukaddam has not been identified by the complainant. It was submitted that further evidence in the form of CCTV footage shows that appellant and deceased went out of the house voluntarily and they came back few minutes later and had it been the case of abduction, the deceased had the ample opportunity to abscond or run away. Learned counsel argued that learned trial court wrongly placed reliance on the forensic reports Ex.BJ & Ex.BL, as no fingerprints on the knife have been found and even on the body of the deceased, there is no DNA of the appellant. It was submitted that complainant had consistently changed his stance and there has been delay in recording the statement of the witnesses under section 161 Cr.P.C. which is in violation of law and on the same count only, convictions of the accused persons can be set aside. Reliance was made to case law noted in the footnote[2]. Learned counsel pointed out that Muhammad Iftikhar, (the gatekeeper), was implicated through supplementary statement on 24.07.2021 and Muhammad Jan (Mali) on 08.08.2021. It was submitted that Tahir Zahoor, CEO of Therapy Works and its employees were implicated much later. Learned counsel argued that on the basis of falsus in uno falsus in omnibus, on the same set of evidence, eight persons have been acquitted while three have been found guilty and the same also merits acquittal. Reference was made to decisions noted in footnote[3]. It was contended that postmortem was conducted on 21.07.2021 at about 9:00/9:30 in the morning and as per the report, time of death seems to be midnight. It was submitted that phones recovered from the possession of the deceased and the appellant carry no weight, as IMEI numbers of the same are different and it is trite law that one tainted evidence cannot corroborate the other. It was submitted that recovery, in the facts and circumstances, is inconsequential. It was argued that DVR and the hard disk are inadmissible in evidence, as maker of the same never entered the witness box. Reliance was placed on case law which is footnoted[4]. Learned counsel argued that in case, the Court comes to the conclusion that there is substantial evidence to connect the accused, in the alternative, instead of capital punishment, life imprisonment is to be awarded under section 302(b) of Pakistan Penal Code inasmuch as there were mitigating circumstances. Reliance was placed on decision noted in footnote[5]. Learned counsel, in this behalf, argued that neither motive has been set up nor proved by the complainant, which in itself, is a reason enough for grant of lesser sentence of life imprisonment. 8. Raja Muhammad Shafaat Khan, Advocate appearing for the appellant in Criminal Appeal No.136-2022, argued that his client has been convicted for ten years imprisonment under section 368 PPC with fine of Rs.1,00,000/- and in default whereof, to undergo two months Simple Imprisonment. It was contended that he has been convicted for ten years RI under sections 109 & 364 PPC. It was submitted that appellant is simply a Chowkidar and there cannot be any abetment or aiding; that there is nothing on record to show that there was any consultation or knowledge. It was submitted that even-otherwise, there is not an iota of evidence which shows that there is any mens rea on part of the appellant. Learned counsel pointed out that at about 7:12 p.m. on 20.07.2021, Muhammad Iftikhar was not present at the gate and in this behalf, findings of learned trial court are not correct. It was submitted that in the CCTV footage, appellant can be seen at the gate on the night of 19/20th July, 2021 at about 2:40/2:45 a.m., but at the relevant time, deceased went out voluntarily and came back at her own will. It was submitted that section 109 ibid is not attracted, as there is no overt act. It was submitted that there is no evidence of design on part of appellant with the principal accused. It was submitted that appellant has been implicated as a result of afterthought inasmuch as he was implicated through supplementary statement made on
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24.07.2021. Learned counsel for the appellant contended that there is no case for enhancement of sentence in offences of rape and abduction rather it is a case of acquittal. 8. Mr. Kamran Murtaza and Shahzeb Jaffar, Advocates, appearing for the appellant Muhammad Jan in Criminal Appeal No.111-2022, adopted the submissions by learned counsel for the appellant in Jail Appeal No.117-2022 and reiterated that there is no design hence question of abetment was not made out. It was submitted that his client has been convicted and punished with ten years imprisonment under section 364/109 PPC and 10 years RI under section 368 PPC, whereas for offence under section 118 PPC, seven years RI with fine of Rs.100,000/-. It was contended that there is nothing on record which shows that appellant has been involved, especially when, CCTV footage was available from day one and taken into custody; that there was no justification for implicating the appellant on 08.08.2021. It was submitted that person, who copied DVR into hard disk, was Mudasir Alim with Belt No.3923, whereas Muhammad Mudasir appeared with Belt No.4323 and prosecution deliberately did not present the actual person. It was submitted that memo of recovery is defective, as there are no recovery witnesses. 9. Learned counsel for the complainant, while contesting the appeals against conviction and making submissions for appeals against acquittal as well seeking enhancement of the punishment, inter alia contended that there is no difference in IMEI numbers of mobile phones and that learned counsel for the appellant is trying to mislead the Court. It was submitted that there are no fingerprints on the knife, the weapon of offence, as it was stained with blood. It was contended that forensic reports Ex.BJ, Ex.BQ & Ex.BL clearly shows that there is sufficient evidence through forensic connecting the accused persons with the offences of rape and murder by Zahir Zakir Jaffar. It was submitted that there was no deliberation or concoction in registration of FIR inasmuch as police diligently performed its duties and it took time in the natural course of events for registration of the case. It was submitted that Muhammad Zubair Mazhar (PW-15) was one of the police officials to reach at the site and he did the spade work. It was submitted that all other police officials including Aqsa Rani and Muhammad Imran (PW-4 & 8 respectively) also reached around 10:00/10:15 p.m. and it was only when all those persons arrived and initially investigated the matter, FIR was lodged subsequently. Learned counsel contended that there is no question of insanity to be pleaded by the appellant and in this regard, learned counsel took the Court through the timeline, which indicated that appellant was not lunatic in the facts and circumstances for all medical purposes. He pointed out that appellant was arrested on 20.07.2021 and was presented before the Magistrate on 21.07.2021, whereas three days physical remand was allowed to the police authorities; on 24.07.2021, appellant was represented by the counsel when further remand was granted; that on 26.07.2021, 28.07.2021, 31.07.2021 & 02.08.2021, when the appellant was under judicial custody, he had legal representation and never ever the stance of lunacy was raised. It was submitted that even parents of the appellant neither raised a plea that their son is insane and is unfit to stand trial nor any evidence was placed on record during trial to show that appellant was undergoing some therapy or was on medication of some sort; that there is no ambiguity in the facts and circumstances that Mudasir Ali and Muhammad Mudasir is one and the same person. It was submitted that difference in Belt Numbers of 3923 & 4323 is purely on account of mispronunciation and they are not two persons. It was submitted that in any case, if appellant wanted to so heavily rely upon this fact, he ought to have made a request for summoning of police official with Belt No.4323. It was submitted that burden was on the defence and not on prosecution to substantiate the referred plea. Learned counsel pointed out that there is no delay in conducting postmortem and the same was done fairly. Learned counsel explained timeline on the DVR and explained through the same the events and circumstance on evening of 20.07.2021 leading to discovery of death of Noor Mukaddam. He also took the Court through inquest report as well as
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medical findings to substantiate that the same is in order to establish the guilt. Reliance was placed on the case footnoted [6]. 10. Learned counsel for the complainant contended that in the facts and circumstances, there does not exist any justification for acquittal of other eight accused person inasmuch as there is sufficient evidence available on record. It was pointed out that CDR clearly shows that parents of the appellant were in touch with him and made phone calls shortly before or approximately at the time of commission of offence; that there was exchange of telephone calls. It was submitted that it is not possible to believe that they were ignorant of the occurrence. It was submitted that only after their phone call that the workers of therapy work reached the scene of crime and tried to eliminate the evidence. It was contended that employees of therapy work made no effort to call the police rather they tried to apprehend the accused on their own and erase the evidence. It was pointed that Muhammad Iftikhar and Muhammad Jan have been held liable by learned trial court hence there was no justification or basis for grant of lesser sentence. It was argued that likewise in the case of Zakir Jaffer he was awarded lesser punishment for the offence of rape, which is not justified in the facts and circumstances and there was cogent and clear evidence available that the appellant committed offence of rape of Noor Mukaddam and there were no mitigating circumstances for awarding lesser sentence. 11. Ms. Khadija Ali, appearing for the State, reiterated and adopted the arguments by learned counsel for the complainant but also submitted that DVR clearly shows timeline to indicate that appellant and deceased Noor Mukaddam were seen together; in this behalf, reliance was placed on case mentioned in footnote[7]. It was contended that there is no delay in the medical report and the same is in line with the settled principles. Reliance was placed on cases reported as[8]. It was contended that the parents of appellant as well as employees of therapy works have tried to erase the evidence and help the appellant to abscond. 12. In rebuttal, learned counsel for the appellant reiterated the contentions and cited case law as to the mitigating circumstances with respect to motive and the effect of legal implication of defective postmortem. With respect to motive, reliance was placed on cases referred in the footnote[9]. In so far as postmortem is concerned, reliance was placed on decisions which are footnoted[10]. 13. Submissions made by learned counsel for the parties have been heard and the documents, placed on record, examined with their able assistance. 14. As noted above, prosecution's case initially implicated only Zahir Zakir Jaffar (the appellant), however subsequently, other persons, named above, were involved in the matter. As already noted above, instant judgment is to decide not only the issue of convictions but also acquittal of eight accused persons by learned trial court. 15. We take up first the question of acquittal of eight persons named above. Against the acquittal, State as well as complainant has filed appeals. The acquitted persons can be safely placed in three sets for the purposes of discussion of the evidence and case; firstly, Muhammad Jamil (Cook), who as per the prosecution was present at the scene of crime at the relevant time; secondly, the parents of appellant, who were not in the city at the relevant time and thirdly, the CEO of Therapy Works and its employees. 16. Before embarking upon discussing the merits of the case regarding acquittal and findings of learned trial court, it is appropriate to briefly refer the law as to the standards required for reversing the acquittal findings. The Apex Court of the country in the footnoted decision[11], observed that there exists double presumption where the accused is acquitted; firstly, every accused person is presumed innocent and prosecution has to prove or discharge that burden and secondly, State or complainant in plea against acquittal has to discharge an additional burden that the findings of learned trial court are erroneous on some counts.
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17. In so far as Muhammad Jameel, Cook is concerned, there is nothing on record to establish that he actively participated in the offence of abduction, rape or murder of deceased; perhaps, he was present in the basement, but in CCTV footage, he cannot be seen actively involved in any manner, despite the fact that he was present in the house no cogent evidence has been led by the prosecution to show involvement of Muhammad Jameel, hence to his extent, we do not feel that any interference is warranted in the findings of learned trial court. 18. The parents of the appellant namely Zakir Jaffar and Mst. Ismat Zakir were not present at the scene of crime, but despite case of the prosecution that they were telephonically engaged with the appellant and the staff and also informed the CEO of therapy work and on their call, employees (other accused of therapy work), came at the scene of crime, the evidence presented by the prosecution i.e. Call Data Record (CDR) of the referred person(s), shows that there was exchange of communication, however, since transcripts are not available, hence nothing can be said for sure as to the nature of conversation. Nowhere, the prosecution has led any evidence to the effect that the parents knew about design of the appellant regarding abduction, rape or murder of the deceased or came to know about it subsequently. Since the evidence is silent about nature of communication between parents and the appellant and also Zakir Jaffar and Mst. Ismat Zakir with CEO of Therapy Works, it cannot be said for sure that they had any actual knowledge of the occurrence. It is also the position that the representatives of the Cellular Companies, from whom CDR was obtained, also were not called in evidence to prove the veracity of the same; reference solely on the availability of CDR, without any other proof, would not be sufficient to cross the hurdle of double presumption as laid down by the august Apex Court. The Indian Supreme Court in AIR 2004 SC 4384[12] observed that strong suspicion against the accused cannot be said to be the basis for conviction and in such circumstances, the benefit of doubt is to be granted to the accused. This dictum clearly shows that if there are strong reasons for suspecting that a person is involved, does not automatically lead to his/her conviction, as in the instant case, it is unlikely that the parents were not aware of the misdoings of their son but since there is nothing on record about actual telephonic conversation, one cannot hold beyond reasonable doubt that they actually participated or were aiding and abetting their son in the commission of offences. The findings of learned trial court, in our opinion, do not suffer from any error of facts or law for them to be interfered with. 19. Lastly, the CEO of Therapy Works namely Tahir Zahoor and other employees were also implicated in the case in question. All, except CEO, arrived at the scene of crime at about 8:00 pm and as is clear from the CCTV footage, they after some effort/improvisation, were able to enter into house and it seems that then only, they overpowered the appellant and in this entire adventure, one of them namely Amjad Mahmood also got injured, who was taken to the hospital for treatment. The fault, perhaps of the employees of Therapy Works, is that they ought to have informed the police authorities regarding the incident, which they did not; naturally, they are not involved in abduction, rape or murder of deceased, as there is no prosecution evidence to the effect, but the question whether they aided, abetted or in any way facilitated the appellant in doing so, perhaps is the best case of the prosecution. There is no actual evidence, whereupon it can be said that they aided or abetted the appellant, hence findings of guilt on charge under section 109 PPC against them would be an unfair conclusion. Though they never really recorded their statements or anything to that effect, but perhaps under section 201 PPC, they could be implicated for destroying the evidence or may be under section 186 PPC for obstructing a public officer in performance of his duties, but with respect to commission of the actual substantive crime or aiding or abetting of the same, there is nothing on record to establish the referred fact. Even, with respect to sections 186 & 201 PPC, there is nothing on record that they prevented the police authorities from performance of their duties and/or tampered with the evidence or anything at the scene of crime.
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The prosecution has not put forth anything to the effect that had the police not arrived at the scene of crime the referred employees of Therapy Works would have facilitated the appellant or otherwise cleaned the scene of crime; conjectures and surmises cannot form basis of conviction of the employees of Therapy Works, as there is no actual evidence to establish charges under sections 186 & 201 PPC. Therefore, the findings of learned trial court against CEO of Therapy Works and employees also do not need any interference in any manner. 20. Next, we take up the appeal of Zahir Zakir Jaffar (Jail Appeal No.117-2022) as well as Murder Reference No.03-2022). It is relevant to state that Zahir Zakir Jaffar was implicated for…
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