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Petitioner: Sardar MOAZZAM KHAN VS Respondent: THE STATE and another
Court Name: Peshawar High Court Judge(s): Fazal-ur-Rehman Khan, Shehzad Akbar Khan Title: Sardar MOAZZAM KHAN vs THE STATE and another Case No.: Criminal Appeal No,209 of 2003 Date of Judgment:2004-04-07 Reported As: PLD 2004 Peshawar 175 Result: Appeal dismissed
JUDGMENT
JUDGMENT FAZLUR REHMAN KHAN, J.--- The learned Anti-Terrorism Court, Hazara Division at Abbottabad, by judgment/order dated 2-10-2003, has convicted the appellant in case F.I.R. No,307 dated 17-6-2003 of Police Station Mirpur under section 302/324, P.P.0 read with section 7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act) and sentenced to death under section 302(b), P.P.0 read with section 7 of the Act and to pay a fine of Rs,1,00,000 or in default thereof to undergo further two years. R.I. For committing Qatl-1-Amd of Dr. Farooq Hilal and also ordered to pay Rs,3,00,000 as compensation under section 544-A, Cr.P.C., to the legal heirs of deceased Dr. Farooq Hilal or in default, thereof to undergo 6 months imprisonment and at the same time, it was ordered that the compensation will be recoverable as land revenue. The appellant has been further convicted under section 324, P.P.0 read with section 7 of the Act to undergo 10 years R.I and also to pay a fine of Rs,50,000, payable to P.W. Dr. Farmanullah (complainant) as compensation or in default thereof, to undergo 6 months imprisonment. All the sentences of imprisonments have been ordered to run concurrently with benefit of section 382-B, Cr.P.C. Now through the present appeal, the convict- appellant has challenged his conviction and sentences. On the other hand, the learned Special Judge has made a Reference to this Court under section 374, Cr.P.0 for the confirmation of the death sentence of the appellant. 2. The prosecution case, in brief, as alleged in the "Murasila" (Exh.P.A/1) lodged at the instance of the complainant Dr.Farmanullah (PW.2) at the Emergency Ward of Ayub Medical Complex, Abbottabad, where the dead body of the deceased Dr. Farooq Hilal was also lying, reported on 17- 6-2003 at 23-45 hours, is that on the day of occurrence, he alongwith Dr.Farooq Hilal deceased and Dr. Tawaf Gui (P.W.3) were walking on road inside the Hospital premises when in the meantime a
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car passed by them towards the Girls' Hostel with such a fast speed that they could hardly save themselves otherwise they would have been crushed to death. After a little while i,e, at about 11.10 hours, the said car bearing No,3699 in grey colour returned, on which, Dr. Farooq Hilal deceased signaled it to stop. When the car stopped, Dr. Farooq Hilal made a complaint to driver of the car as to how and in what manner, he was driving the car as the same would have smashed them, on which, the driver of the car came out and told Dr. Farooq Hilal that his name is Sardar Moazzam and if they would have been done to death what they could have done to him. On this reply of the driver of the car, some altercation started between him and Dr. Farooq Hilal, on which, the former took out a pistol from the fold of his Shalwar, fired a shot at the latter with the intention of killing him. With the fire shot of the driver of the car Dr. Farooq Hilal received injury in front on his stomach, who fell to the ground. The driver of the car fired another shot with which he (the complainant) received injuries in front of the right leg, whereafter the driver of the car boarded the car and ran away from the spot. The companions of complainant then took him and the deceased to the Emergency Ward of the Hospital, where complainant lodged the report Exh.PA/1 to Shah Jehan Khan S.I. (P.W.13), wherein the complainant charged Sardar Moazzam s/o Sardar Bahader resident of Mirpur by name. It was stated that motive for the offence was the altercation and nothing else. 3. On the day of occurrence, Shah Jehan Khan, S.I. (PW.13) was present in Police Station Mirpur, when at about 23.15 hours, Moharrir of the Police Station informed him that he had received a telephonic call from Rab Nawaz Khan (DSP/UT) (PW-5) that some one fired at a doctor in the premises of Ayub Medical College and fled away in a car having registration No,3699.. Accordingly, on receipt of this information, he alongwith S.H.O. Shah Nazar and other police staff/contingent immediately left for the College. When they reached the Causalty Ward of the Hospital, they learnt that Sardar Moazzam Advocate, after having injured two doctors 'has fled away in his car, on which S.H.O. Shah Nazar went back but P.W. Shah Jehan, S.-I. Went inside the. Casualty Ward. The latter saw many persons inside the Casualty Ward. At that time Dr. Farooq Hilal was under Oxygen and soon thereafter, he was informed that he expired: PW Dr. Farmanullah was also in the same ward. PW Shah Jehan Khan S.I., therefore, recorded his report in the form of "Murasila" Exh.PA/1. He then prepared the injury sheet of the complainant and inquest report of the deceased and sent the "Murasila" Exh.PA/1 to the Police Station for registration of the case. He then went to the spot alongwith PWs Dr. Farmanullah and Dr. Tawaf Gul and inspected the same. From the spot, he took into possession blood stained pebbles and one empty of .32 bore (Exh.P-5) vide recovery memo. Exh.P.W.6/1 in presence of the marginal witnesses. He then went back to the Casualty Ward alongwith PWs Dr. .Farmanullah and Dr. Tawaf Gul. He recorded the statement of PW Dr. Tawaf Gul under section 161 Cr.P.0 and went back to the spot. Oa the site he prepared the site plan Exh.PB at the instance of the P.Ws. Dr. Farmanullah and Dr. Tawaf Gul. He again went to the Casualty Ward and recorded the statements of Dr. Shakeel, Dr. Rehman and Dr. Abdul Haseeb under section 161, Cr.P.C. After sometime P.W. Rab Nawaz Khan D.S.P. Also arrived at the spot and P.W. Shah Jehan Khan S.I., recorded his statement under section 161, Cr.P.C. On 18-6-2003, Shaukat Mehmood F.0 (P.W.7) brought to him the post-mortem report of the deceased Exh.PM and medical report of P.W. Dr.Farmanullah Exh.PM/1, blood stained clothes of the deceased and of the injured (P.9 to P.13) from the doctor, which he took into possession and sealed the same into parcel vide recovery memo. Exh.PW.10/1 in the presence of the marginal witnesses. On 16-9-2003, he took into possession a bulb P.6 from the spot. On 22-6-2003, he sent the garments of the deceased and of the injured to the Forensic Seience Laboratory for repoit/opinion. He also sent the empty shell recovered from the spot to the Arms Expert for opinion. Since during the investigation, Sardar Moazzam Advocate had made two calls to the Police Station, on account of which, his mobile number was detected through CLI of the Police Station, this fact was entered in the daily diary by the Moharrir of the Police Station and he had also informed the High-ups of the Department. As such, on 23-6-2003, PW Shah
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Jehan Khan, S.I. Went to the office of Pak Telecommunication, Abbottabad, and obtained a print of the bill and telephone calls consisting of 12 pages P.7 of Mobile No,0303-7382999, which he took into possession vide recovery memo. Exh.PW.9/1 in presence of the marginal witnesses. On perusal of the print, he found that from the above Mobile, one call was made to telephone No,3815122 and on inquiry from PTCL it transpired that this telephone number is in the name of PW Mst. Farhat Naz (since abandoned), who according to the staff of the College was living in Room No,9 of the Hostel. On 26-6-2003, on prior information, PW Shah Jehan Khan S.I. Laid a picket at the end of territorial jurisdiction of Police Station Mirpur and on arrival of the appellant, his car was stopped and after verifying the particulars of the driver that he is Sadar Moazzam, the latter showed him an order of District & Sessions Judge, Batagram, granting him transit bail. However, P.W. Shah Jehan Khan, S.I. Found that order was with respect to offences under section 302/324, P.P.0 and did not include sections 6/7 of the Act. He, therefore, arrested him under sections 6/7 of the Act. At that time, he also recovered a Mobile phone Exh.P.8 from the accused which he took into possession vide recovery memo. Exh.PW.9/2 in presence of the marginal witnesses. On inquiry from him, it transpired that the said Mobile Carries No,067032380257204521, bearing registration No,0303- 7383999 was in the name of Sardar Moazzam. On 27-6-2003, PW Shah Jehan Khan S.I., obtained four days custody of the accused. During the investigation, on 28-6-2003, the accused disclosed that he could lead the police to the recovery of the car which he was driving at the time of occurrence. Accordingly, P.W. Shah Jehan Khan S.I. Alongwith other police officials brought the accused in police custody from Police Station Havelian. On the way, near Ayub Medical College , P.W. Shah Jehan Khan S.I. Took with them Dr. Ajmal. Khan (P.W.4) and Dr. Syed Masoom Shah to witness the recovery of the car. The accused, while in hand cuffs, led the police party to Street No,7 Mansoor Town, where the motor car was parked in a vacant plot and the accused pointed out that this was the car which he used in the commission of the offence. The car Exh.P.2 was taken into possession. On search of the car PW Shah Jehan Khan S.I. Recovered one plate, having on it, No,P.369 (P4) from the Diggi of the car and challan ticket No,143945 (P-5) from the dash board of the car. The car, plate number and challan were taken into possession vide recovery memo. Exh.PW.4/1 in the presence of marginal witnesses. He prepared the site plan Exh.PW. 13/8 of the site from where the car was recovered. The car was taken to the Police Station, where again from the search of the car, an empty shell of .32 bore (P1) from underneath the driver seat was recovered, which was taken into possession vide recovery memo. Exh.PW.1/2. On 29-6-2003, during the interrogation, the accused disclosed that he could lead the police to the recovery of weapon of offence. Accordingly, in handcuffs he led the police party to his residential house in Musa Zia Colony, where from the corner of a dog-room he took out .32 bore pistol bearing No,561280 (P.14) and said that this was the pistol which he used in the commission of the offence. Accordingly, P.W. Shah Jehan Khan S.I took the same into possession in presence of the marginal witnesses vide recovery memo. Exh.PW.11/1. This witness then prepared the site plan of the house Exh.PW-13/1 from where the .Pistol was recovered. On recovery of the pistol, section 13 of the Arms Ordinance was added to the challan. He then sent the pistol to the Arms Expert for opinion. On his written application dated 29-6-2003, he obtained report Exh.PW.6/3 from the Highways Authority with regard to the challan recovered from the dash board of the car. He also obtained report Exh.PW.3/10 from Sub-Engineer (Electrical) Ayub Medical College that the street lights between Gate No,1 to Gate No,3 of the College were in working condition on 17-6-2003 at night. On 1-7-2003, he produced Mst. Farhat Naz before the Court for recording her statement, under section 164, Cr.P.C. After receipt of the report of the FSL Exh.PZ, placed the same on file. After completion of investigation, he handed over the case file to the SHO for submission of complete challan against the accused in Court.
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4. The appellant was charged under sections 302/324 P.P.0 read with section 7 of the Act, to which he pleaded not guilty and claimed trial. 5. In support. Of its case, the prosecution examined as many as 13 witnesses, out of whom, as already stated, P.Ws. Shah Jehan Khan, S.-I. Has conducted the investigation while P.Ws. Dr. Farmanullah and Dr.Tawaf Gul had furnished an eye account of the occurrence, whereas Dr.Ajmal Khan Afridi (P W.4) is a marginal witness to the recovery memo. Exh.PW.4/1 by virtue of which, P.W. Shah Jehan Khan S.I., took into possession the motor car No,B-3699, number plate of the car and challan receipt whereas rest are the formal witnesses. Both P.Ws. Dr. Farmanullah and Dr. Tawaf Gul in the their statements before the Court fully supported the version given in the F.I.R. 6. While conducting post-mortem examination on the dead body of deceased Dr. Farooq Hilal on 17-6-2003 at 11.30 hours, Dr. Imran Farooq (PW-8) found the following:- "EXTERNAL EXAMINATION; No mark of ligature on neck. Trachestomy wound noted over C1-C2 Cartilage level. A young man's body lying supinc on the P.M Table with slight P.M. Lividity developed. But no rigor mortis noted. Patient was wearing blue colour Shalwar Kameez and under garments (Which' were bloodstained and given to Police with initials). Wounds: (1) Wound of entry: In the left lumber region 5 ml. In Dia with blackening around wound. Having inverted margins. (2) Wound of exit: On the right buttock inner aspect with inverted margins. INTERNAL EXAMINATION: There was no abnormality detected in scalp, skull and vertebrae as well Membrains-Brain, Spinal Cord, Walls ribs and cartilages NAD, plurae NAD. Larynx and trachea NAD, right lung, NAD, left lung NAD, Pericardium and heart NAD, Blood vessels NAD. Examination of abdomen and intestines revealed that walls were damaged in the line of entry wound No, 1. Peritonium was damaged (Ruptured), in the line of entry wound plus three and half litres of blood sucked out from peritoneal cavity. Mouth pharynx and oesoghagus NAD, Diaphragm ruptured on left side. Stomach and its contents contained semi-digested food. Pancreas-NAD, small intestine and their contents-NAD. Large intestine and their contents ruptured descending colon with feacal matel coming out. Liver- NAD, Spleen ruptured; Kidneys lower pole of left kidney ruptured but right kidney normal. Bladder ruptured with blood in its cavity. Organs of general external and internal-NAD, Blood vessels middle blood vessels of abdomen were ruptured. Examination of muscles and joints and bones revealed corresponding muscular damaged to the wounds No,1 and 2 but the remaining aspect had no abnormality. In may opinion, the cause of death of this victim was massive intra abdominal haemorrhage, secondary to the damage of the major blood vessels of abdomen i,e,, damage to the bifurcation of abdominal aorta and left and right iliac arteries and also due to damage to the spleen. Probable time that elapsed between injury and death was within half hour and between death and P.M. About 7 and a half hours. However, this time not mentioned in the P.M report. I have seen the P.M. Report and the pictorial which consisting of 6 sheets which are in my hand writing and correctly bears my signature. The P.M. Report is Exh.PM including pictorials. I had also endorsed the inquest report and the injury sheet." 7. Similarly, on the same day at about 11.30 he medically examined the complainant and found the following:- "(1) Graze wound on the right upper leg (interior aspect) with charring around the wound. 2" in length, half inch in depth. I advised X-Ray right leg AP view and lateral view. The injury was caused by fire arm. However, nature of the injuries was left to be ascertained after X-ray report and the surgical opinion.
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I have seen the injuries report today in the Court within my hand writing and correctly bears my signature and is. Exh.PM/1. After the PM Examination and examination of Dr. Farmanullah I handed over the PM report in -respect of deceased Farooq Hilal alongwith inquest report and injury sheet to the same police official who brought the dead body of the deceased to him. I also handed over the. MLR of Dr. Farrnanullah Khan to the said police official. I had also handed over the blood stained clothes- of Dr. Farmanullah to the said FC. Subject to defence counsel this is a leading question which could not be asked. Order 17-7-2003: Reserved." 8. On conclusion of the prosecution evidence, the accused was examined under section 342, Cr.P.0 but he denied the charges levelled against him. However, he neither volunteered to examine himself under section 340(2), Cr.P.0 as his own witness nor volunteered to produce any evidence in his defence. 9. On appraisal of the evidence on record and hearing the learned counsel for the parties, the learned trial Judge found the appellant guilty. Accordingly, he was convicted and sentenced as aforesaid. 10. We have heard Dr. Khalid Ranjha, Advocate assisted by Abdullah Jan Mirza, Khawaja Muhammad Khan and Mr. Saeed Akhtar Khan Advocates, the learned counsel for the appellant, Mr. Jehanzeb Rahim, the learned Advocate General, NWFP and Mr. Mushtaq Ali Tahirkheli, Advocate, learned counsel for the complainant, and have also perused the record. 11. A preliminary objection was taken by Dr. Khalid Ranjha, Advocate, the learned counsel for the appellant that the learned Anti-Terrorism Court, Hazara at Abbottabad had no jurisdiction to try the appellant. He contended that in order to attract the prevalent provisions of section 6 of Act, it is a motivation, object, design or purpose or in other words mens rea behind the act to commit a terrorist act and not the act or actus reus itself but in the present case, the alleged act on the part of the appellant is entirely based on his personal motivation/vendetta, having no nexus with a terrorist act, as such, the trial of the appellant was without jurisdiction. In support of his arguments, he placed reliance on: (1) PLD 1998 Supreme Court 1445, (2) An unreported judgment dated 14-1-2000 of the Hon'ble Lahore High Court in W.P. No,15843/2003. (3) PLD 2003 Lahore 267. (4) PLD 2003 Supreme Court 396 (5) 2004 PCr.LJ 210 and (6) 2002 YLR 203. Out of the foregoing authorities, the learned counsel for the appellant mainly placed reliance on the judgment at S.No,2 above, hereinafter called as the "referred Judgment". 12. On the other hand, the learned Advocate-General, N.-W.F.P. Assisted by Mr. Mushtaq Ali Tahirkheli, Advocate, the learned counsel for the complainant contended that in the present case, the offences with which the appellant is charged, were not only heinous in nature but had also actually created fear and insecurity in the society. He argued that it is not only the act itself but the consequential effect creating fear and insecurity in the society which attracts the provisions of section 6 of the Act. In support of his arguments, he placed reliance on (1) 2002 SCMR 908 and (2) PLD 2003 SC 224, 396 and 704. He pointed out that the referred judgment is mainly based on the cases reported in PLD 1998 SC 1445, PLD 2000 SC 111 and PLD 2001 S.0 521, but the referred judgment is not only misreading of these judgments but the case reported in 2004 PCr.LJ 210 is by his Lordship the same author and the case reported in 2002 YLR 203 is distinguishable. 13. After going through the authorities cited at the bar from both sides and the record, we find that the arguments of the learned Advocate General are not without force. It would be appropriate here to reproduce below the concluding para-22 of the referred judgment:-
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"22. Judged on the basis of the requirements of the amended provisions of section 6 of the Anti- terrorism Act, 1997 and examined on the touchstone of the principle. Of nexus propounded by the largest Bench of the Hon'ble Supreme Court of Pakistan in the case of Mehram Ali and others v. Federation of Pakistan and other (PLD 1998 SC 1445), reiterated by an equally large Bench of it in the case of Jamat-I-Islami Pakistan through Syed Munawar Hassan, Secretary-General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affaris (PLD 2000 SC 111 and applied by it in the case of Ch. Bashir Ahmad. V. Naveed Iqbal and 7 others (PLD 2001 SC 521) the case in hand, despite the brutality displayed by the culprits and the consequent horror, shock, fear and insecurity' likely to be created by the savagery perpetrated by the offenders, has not appeared to us to be a case of terrorism as the motive for the alleged offences was nothing but personal enmity and private vendetta and the motivation on the part of the accused party was not to overawe or intimidate the Government, etc. Or to destabilize the society at large or to advance any sectarian cause, etc. The intention of the accused party did not depict or manifest any 'design' or 'purpose' as contemplated by the provisions of section 6(1)(b) or (c) or the Anti-Terrorism Act, 1997 and, thus, the actus reus attributed to it was not accompanied by the necessary mens rea so as to brand its action as terrorism triable exclusively by a Special Court constituted under the Anti- Terrorism Act, 1997. The stand taken before us by the learned Assistant Advocate-General appearing for the State also proceeds on the same lines and if for these very reasons that the State has chosen not to oppose this petition. This writ petition is, therefore, allowed, the impugned order passed by the learned Judge, Anti-Terrorism Court-II, Gujranwala on 4-10-2003 is declared to be without lawful authority and of no legal effect and the same is set aside, the application filed by the petitioner before the said Court under section 23 of the Anti-Terrorism Act, 1997 is accepted and the petitioner's case is declared to be triable by a Court of ordinary jurisdiction. The learned Judge, Anti-Terrorism Court-II Gujranwala is directed to transmit the record of the petitioner's case to the learned District & Sessions Judge, Gujranwala forthwith for further proceedings in the matter. There shall be no order as to costs." 14. The perusal of para-22 of the referred judgment, as reproduced above, would show that this judgment is mainly based on (1) PLD 1998 SC 1445, (2) PLD 2000 SC 111, and (3) PLD 2001 SC 521. In the case reported in PLD 1998 SC 1445 at page 1492 of the report, it was observed:- "However, it may be observed that the offences mentioned in the schedule should have no nexus with the object of the Act and the offences covered by sections 6,7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires " 15. The above authority was reiterated in the case reported in PLD 2000 Supreme Court 111 and was also applied in the case reported in PLD 2001 Supreme Court 521. The facts of latter case were that the accused were charged for sprinkling spirit on the daughter of the complainant in consequence of which she died. On submission of the challan in the Special Court, the accused applied under section 23 of the Act for transfer; of the case to the ordinary jurisdiction of competent Court which was accepted. However, the order of the Special Court was challenged through a writ petition and the Lahore High Court rejected the same and on leave to appeal the Hon'ble Supreme Court of Pakistan refused to interfere with the order of the High Court. However, it was observed by their Lordships:- "8. A person would commit a terrorist ac;#if in order. To, or if the effect of his actions will be to strike terror or create a sense of fear and insecurity in the people, or any section of the people....' In the instant case as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant's house. It was not in public and, therefore,
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the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the F.I.R and for that matter on the record of the case as a whole. Similarly the perusal of the Schedule to the Act also indicates that the element of striking terror or creation of sense of fear and insecurity in the people or any section of the people by doing an actor thing by using bombs, dynamite or other explosive or inflammable substances etc. Is a sine qua non for the attraction of the provisions of section 6 of and the Schedule to the Act (Underlining is provided by us for emphasis). 8-A. In the instant case no doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be a terrorist act within the contemplation of section 6 or the Schedule to the Act. In this context, we can do no better than refer to the observation of this Court in the case of Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 at page 1492: - "However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts…
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