Full Judgment Text & Judicial Ruling

2021 Y L R 2210 [Lahore] Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ SHAFIQUE AHMAD---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 1308 of 2013, heard on 2nd February, 2021. (a) Penal Code (XLV of 1860)--- ----Ss.302(b), 324, 353, 186, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with co-accused made indiscriminate firing upon police contingent deployed at the bay with automatic weapons, as a result of which, four Police Officials were killed at the spot, while one escaped---Complainant and other witness stated that the incident took place at 7.10 p.m.---On the other hand, Police Official who escaped firing stated the time as 6.15 p.m. and added that complainant came at 7.23 p.m.---Such was a material contradiction, which could not be ignored---Said fact indicated that complainant and witness came at the spot after the occurrence---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss.302(b), 324, 353, 186, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Statement of eye-witness---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon police contingent deployed at the bay with automatic weapons, as a result of which, four Police Officials were killed at the spot, while one escaped---Evidence of eye-witness was of little help for the prosecution---Witness testified that he was saved because when the terrorists attacked he was not with the deceased Police Officials and had gone to drink water---Said fact raised a question as to whether he had a good look at the assailants and could identify them---Testimony of said witness was absolutely silent on that point---Said witness, in his examination-in-chief, did not say that the accused was among them---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss.302(b), 324, 353, 186, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Accused was nominated through supplementary statement---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon police contingent deployed at the bay with automatic weapons, as a result of which, four Police Officials were killed at the spot, while one escaped---Record showed that FIR was registered against unknown accused---Further, neither the complaint nor the FIR described the features of any of the assailants---Complainant nominated the accused in the case through a supplementary statement without disclosing the source of his information or the circumstances which made him suspect that he was involved---Even during the trial, complainant did not say anything about the same---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss.302(b), 324, 353, 186, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Extra-judicial confession of the accused---Accused was charged that he along with his co-accused made indiscriminate firing upon police contingent deployed at the bay with automatic weapons, as a result of which, four Police Official were killed at the spot, while one escaped---Prosecution had produced two witnesses to prove the extra-judicial confession of accused made before them---Said witnesses deposed that the accused came to them, confessed that he was among those who targeted the place and requested for pardon---Accused allegedly also admitted that he was actively involved in planning attacks on the Pakistan Army---One witness was the father of one of the deceased while other witness was the brother of another deceased---No palpable reason was available for the accused to make an extra-judicial confession before said witnesses---No evidence was available that accused approached them to ventilate his suffocating conscience or was in a morass and needed their help---Conduct of the witness before whom the extra-judicial confession was made also a relevant factor for determining its credibility, which was unnatural---Witnesses did not make any effort to apprehend the accused and let him leave---More importantly, if the accused confessed his guilt as alleged and on the same day witnesses informed the police, why was the complainant not aware of it when he made his supplementary statement---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances. Mulk Raj v. The State of U.P AIR 1959 SC 902; Narayan Singh and others v. State of M.P. AIR 1985 SC 1678 and Sahadevan and another v. State of Tamil Nadu AIR 2012 SC 2435 rel. (e) Criminal trial--- ----Extra-judicial confession---Scope---Extra-judicial confession was to be received with utmost caution because it could be effortlessly procured and easily concocted. Ahmad v. The Crown PLD 1951 FC 107; Abdul Latif v. Crown PLD 1952 FC 113; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel. (f) Penal Code (XLV of 1860)--- ----Ss.302(b), 324, 353, 186, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Recovery of weapon, explosive material and literature from accused---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon contingent deployed at the bay with automatic weapons, as a result of which four Police Officials were killed at the spot, while one escaped---Record showed that MP-5 rifle which was snatched from the deceased Police Officials at the time of attack was recovered from accused---Said rifle was a vital piece of evidence but the same was not produced at the trial---Prosecution only examined two witnesses in whose presence said rifle was recovered and Police Constable, who identified the same and signed identification memo in respect thereof---Evidence of said witnesses was of little consequence---According to the prosecution, a huge quantity of explosives was recovered from the accused in two instances, included suicide jackets, rifles, detonators, IEDs, dry batteries, timers, remote control devices, explosive substance weighing 75 kilograms and hand grenades---Said evidence could not be used against the accused in the case for a number of reasons; first, the said explosives were recovered during investigation of other FIR registered at other Police Station and yet another FIR of another Police Station; secondly, those were not produced during the trial of the present case and only the recovery memo was exhibited; thirdly, the accused was not indicted in respect thereof and lastly, accused was not confronted with the said recovery when his statement under S.342, Cr.P.C. was recorded---Prosecution witnesses deposed that accused led to recovery of Jehadi literature which was seized vide recovery memo, included magazines, six letter pads, four DVDs (without stickers), pamphlet and written material---Recovery witness, during cross-examination, had admitted a fortnight earlier, they visited the house of accused; question arose as to why the said literature was not recovered---Name of accused was not written on any of the articles---Trial Court had held that the recovery was doubtful and there was no reason to differ with the same---Admittedly, the said recoveries were made from the jurisdiction of another police station---Accused and co-accused, during trial, adduced documents which showed that the Investigating Officer did not make entry in the roznamcha of the concerned police station before undertaking the said proceedings---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances. Muhammad Shah v. The State 2010 SCMR 1009; Qaddan and others v. The State 2017 SCMR 148; Muhammad Saddique v. The State 2018 SCMR 71; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Amin Ali and another v. The State 2011 SCMR 323 rel. Muhammad Irfan Malik, assisted by Bilawal Ali Nawaz for Appellant. Ch. Muhammad Mustafa, Deputy Prosecutor General for the State. Date of hearing: 2nd February, 2021. JUDGMENT TARIQ SALEEM SHEIKH, J.---This appeal under section 25 of the Anti-Terrorism Act, 1997, is directed against judgment dated 12-09-2013 handed down by the learned Judge, Anti-Terrorism Court-I, Gujranwala, in case FIR No. 101/2012 dated 13-03-2012 registered at Police Station Saddar, Gujrat, for offences under sections 302, 324, 353, 186, 148, 149, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997. 2. Brief facts of the case are that on 13-03-2012 at 07:10 p.m. when Complainant Sajid Nazeer/Inspector (PW-13) and his squad came to Khatala Phatak during the course of patrolling they saw six terrorists, who were riding three motorcycles, attack the contingent deployed at the bay with automatic weapons raising slogans of Allah-o-Akbar. As a result of their indiscriminate firing, Muhammad Arshad 1481/HC, Seerat Abbas 2127/C, Qamar Ali 2389/C and Sibghat Azam 3223/C were killed at the spot while Ahmad Waqas 3958/C miraculously escaped. According to the Complainant, he had a good view of the accused in the light of an electric bulb lit at the site so he could identify them. On seeing the police patrol vehicle the terrorists sped away. It was later found that they had taken away official G3 Rifle No.13361 with three magazines having 60 live bullets and MP5 Rifle No. A96484 with a magazine having 20 live bullets carried by the deceased policemen. The Complainant drew the complaint Exh. PB/1 and sent it to the Police Station Saddar, Gujrat, through Riffat Iqbal 1119/C on the basis of which Irshad Ahmad SI/Duty Officer (PW-1) registered FIR No. 101/2012 Exh. PA at 08:30 p.m. 3. The case was investigated at various levels and eventually Shafique Ahmad (the Appellant) and Abdul Rehman were challaned. On 26-03-2013, the learned Judge, Anti-Terrorism Court, framed charge against them to which they pleaded not guilty and claimed trial. The prosecution produced 25 witnesses to prove its case. After that the learned Judge recorded the statements of the accused under section 342, Cr.P.C. and confronted them with the incriminating material that was brought against them during the trial. They refuted it and professed innocence. They maintained that some unknown terrorists had attacked the police. Since it was a high profile case and the real culprits were not traceable, the Complainant and his colleagues falsely implicated them to show their efficiency. For this purpose they also fabricated evidence. A few days before 15-11-2012 the law enforcement agencies arrested some terrorists and seized illicit arms and ammunition from them. During investigation those outlaws provided information which led to the arrest of Muhammad Aslam (the Appellant's Humzulf) and recovery of explosives which they subsequently planted on the Appellant and Abdul Rehman. 4. The Appellant and his co-accused neither made statement on oath under section 340(2), Cr.P.C. nor examined any witnesses in their defence. However, they tendered some documents in evidence. Appellant Shafique Ahmad produced a certified copy of Daily Diary Register of Police Station Saddar, Gujrat, dated 15.11.2012 and 16-11-2012 (Exh.DH), attested copy of Daily Diary of Police Station Tanda, Gujrat, dated 15-11-2012 and 16-11-2012 (Exh.DJ) and attested copy of Daily Diary of Police Station Tanda dated 16-11-2012 and 17-11-2012 (Exh.DK). On the other hand, Abdul Rehman adduced copy of Daily Diary Register of Police Station Civil Lines, Gujrat, dated 15-11-2012 (Exh.DF) and attested copy of Daily Diary of Police Station Civil Lines dated 16-11-2012 and 17-11-2012 (Exh.DG). 5. On conclusion of the trial, vide impugned judgment dated 12-09-2013, the learned Judge acquitted Abdul Rehman but convicted and sentenced the Appellant as under: i) Convicted under section 21(I) of Anti-Terrorism Act, 1997, read with section 302(b), P.P.C. and sentenced to life imprisonment, on four counts with compensation in the sum of Rs.1,00,000/- to the legal heirs of each deceased and in default thereof to undergo simple imprisonment for a further period of six months on each default; ii) Convicted under section 7(a) of Anti-Terrorism Act, 1997, read with section 21(I) of the said Act and sentenced to life imprisonment on four counts with fine of Rs.1,00,000/- on each count and in default thereof to undergo simple imprisonment for a period of six months for each default; and iii) Convicted under section 353, P.P.C. read with section 21 (I) of Anti-Terrorism Act, 1997, and sentenced to rigorous imprisonment for two years. The sentences of imprisonment were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was given to the Appellant. Hence, this appeal. 6. The learned counsel for the Appellant contended that the prosecution had failed to prove the charge. The Appellant was not among the terrorists who attacked the police contingent on 13.03.2012. Further, he neither abetted nor aided or harboured them. The learned trial court had not appreciated the evidence properly which had caused serious miscarriage of justice. He argued that the prosecution case was based on the Appellant's extra-judicial confession which strained credulity. Even otherwise, it was a weak type of evidence and the recoveries relied upon for corroboration were themselves tainted. Lastly, the learned trial court had acquitted co-accused Abdul Rehman which the State had not challenged. The Appellant could not be convicted on the same evidence. The learned counsel prayed that this appeal be accepted. 7. The learned Deputy Prosecutor General controverted the above contentions. He contended that the Appellant belonged to a Jehadi organization and was involved in attacks on the Pakistan Army, police and the civilians. They also perpetrated terrorism at the Khatala Phatak Check Post in which four policemen were killed. He argued that on 08-11-2012 the Appellant made extra-judicial confession to this effect before Muhammad Azam (PW-16) and Muhammad Azam (PW-17) which was duly proved at the trial. Recovery of MP-5 rifle bearing No.A96484 and Articles P-22 to P-36 corroborated his aforementioned confession and reinforced the prosecution case. The learned Law Officer prayed that the Appellant's appeal be dismissed and his conviction and sentence be upheld. 8. We have heard the learned counsel and examined the available record. 9. On 13-03-2012 at 7:10 p.m. a band of terrorists attacked the Khatala Phatak Check Post, Ghazi Chak, within the remit of Police Station Saddar, Gujrat, killing four officials Muhammad Arshad 1481/HC, Seerat Abbas 2127/C, Qamar Ali 2389/C and Sibghat Azam 3223/C. The fifth, Ahmad Waqas 3958/C (PW-15), escaped unhurt. The prosecution examined 25 witnesses to prove its case. Complainant Sajid Nazeer/Inspector (PW-13), Abid Hussain/ASI (PW-14) and Ahmad Waqas 3958/C (PW-15) furnished the ocular account. Dr. Falak Sher (PW-12) provided medical evidence. Muhammad Azam (PW-16) and Muhammad Aslam (PW-17) testified that the Appellant confessed his guilt before them. Saeed Ahmad/Inspector (PW-20), Muhammad Ashraf, Technician, Bomb Disposal Squad (PW-21), and Javed Iqbal/Inspector (PW-22) deposed about recovery of police MP-5 Rifle and explosives from the Appellant while Umar Hayat/SI (PW-24) and Syed Hasnat Hussain (PW-25) testified that they recovered Jehadi literature (Articles P-28 to P-36) from him. 10. Complainant Sajid Nazeer/ Inspector (PW-13) and Abid Hussain/ASI (PW-14) deposed that on 13.03.2012 they were patrolling on official vehicle and about to cross the Khatala Phatak when the terrorists attacked the check post. According to them, the incident took place at 7:10 p.m. On the other hand, Ahmad Waqas 3958/C (PW-15) stated the time as 6:15 p.m. and added that Sajid Nazeer/Inspector came at 7:23 p.m. This is a material contradiction which cannot be ignored. It indicates that PWs Sajid Nazeer and Abid Hussain came at the spot after the occurrence. 11. The evidence of Ahmad Waqas (PW-15) is also of little help for the prosecution. He testified that he was saved because when the terrorists attacked he was not with the deceased police officials and had gone to drink water. This raises a question as to whether he had a good look at the assailants and could identify them. His testimony is absolutely silent on this point. Importantly, in his examination-in-chief he did not say that the Appellant was among them. 12. It is significant that FIR No.101/2012 Exh.PA was registered against unknown accused. Further, neither the complaint Exh.PB/1 nor the FIR, supra, describe the features of any of the assailants. On 13-11-2012 Complainant Sajid Nazeer/Inspector (PW-13) nominated the Appellant in this case through a supplementary statement without disclosing the source of his information or the circumstances which made him suspect that he was involved. Even during the trial he did not say anything about it. The following excerpt from his examination-in-chief is relevant: " On 13-11-2012, I got recorded my supplementary statement to Investigating Officer and I nominated accused Shafique son of Nazeer and Abdul Rehman son of Shafique present before the court, on my own sources. I came to know through my hidden sources that both the present accused persons had got committed the offence through accused namely Abdul Wahab alias Kamran, Imran, Ans of Kasur and Asif of Gujranwala. It was also known that Abdul Wahab etc. accused persons beside the present occurrence had also committed the offence of attack on Army at Chenab Bridge Gujrat and attack on Kamra Air Base." 13. The prosecution next counts on the extra-judicial confession of the Appellant. Muhammad Azam (PW-16) and Muhammad Aslam (PW-17) deposed that on 08-11-2012 the Appellant came to them, confessed that he was among those who targeted the place at Khatala Phatak and requested for pardon. According to them, he also admitted that he was actively involved in planning attacks on the Pakistan Army. PW Muhammad Azam was the father of Sibghat Azam/C deceased while PW Muhammad Aslam was the brother of Muhammad Arshad/C deceased. 14. Wharton's Criminal Evidence states:1 The proof of every crime consists of: (1) proof that the crime charged has been committed by someone; and (2) proof that the defendant is the perpetrator of the crime. The first element is the body of the crime, or corpus delicti; the second is the proof of the defendant's connection with the crime, i.e., his guilty participation. It is practically universally held that the corpus delicti of a crime cannot be proved by an extra-judicial confession standing alone. Thus a verdict of guilty and a subsequent conviction cannot be sustained upon an extra-judicial confession only. Stated conversely, the rule is that an extra-judicial confession of the accused must be corroborated by independent proof of the corpus delicti of the crime." 15. The Supreme Court of India has considered the question of evidentiary value of extra-judicial confession in a number of cases. In Mulk Raj v. The State of U.P (AIR 1959 SC 902) it held: "An extra-judicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is true that the court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given. If the rule is inflexible that the courts should insist only on the exact words, more often as not, this kind of evidence, sometimes most reliable and, useful, will have to be excluded; for, except perhaps in the case of a person of good memory, many witnesses cannot repeat the exact words of the accused. It is for the court having regard to the credibility of the witness, his capacity to understand the language in which the accused made the confession, to accept the evidence or not. In this case, the confession made by the appellant was not a complicated one and the witnesses stated without any conflict practically the exact words used by the appellant and also how they understood the words. In the circumstances, if the evidence of the witnesses is acceptable, there is no reason why the extra-judicial confession made by the accused could not be acted upon." 16. In Narayan Singh and others v. State of M.P. (AIR 1985 SC 1678) the Indian Supreme Court held: "It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak about such a confession." 17. In Sahadevan and another v. State of Tamil Nadu (AIR 2012 SC 2435) the Supreme Court thoroughly analyzed various judgments on the issue and formulated the following principles: "(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law." 18. The jurisprudence in Pakistan is well settled that extra-judicial confession should be received with utmost caution because it can be effortlessly procured and easily concocted. The Federal Court laid this dictum in Ahmad v. The Crown (PLD 1951 FC 107) and Abdul Latif v. Crown (PLD 1952 FC 113) which was subsequently affirmed by the Hon'ble Supreme Court of Pakistan in a number of cases. In Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231) it held: "22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is…

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